Basevski v City of Ryde Council - [2022] NSWLEC 1387 - NSWLEC 2022 case summary — Zoe

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Basevski v City of Ryde Council

[2022] NSWLEC 1387

Land and Environment Court (NSW)|2022-06-27

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-06-27

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

Judgment

COMMISSIONER: These proceedings are a class 1 Appeal filed with the Court on 29 June 2021 and made pursuant to s 8.7 of the Environmental Planning & Assessment Act 1979 (EPA Act) against City of Ryde Council following upon the refusal by Ryde Local Planning Panel on 10 June 2021 of Development Application LDA 2020/0358 (DA) lodged with the respondent on 20 October 2020.
The DA, in its amended form, proposes the demolition of existing residential structures at 26 Beattie Avenue, Denistone East, being Lot 53 DP 9536 (site). It further proposes the construction upon the site of a two storey centre-based childcare facility for sixty four (64) children and up to twelve (12) staff with basement parking for 14 vehicles. Excavation to a depth of approximately 3.5 m is required to enable the construction of the proposed basement. Acoustic fencing is to be erected on and adjacent to the side and rear boundaries of the site. The proposed hours of operation are 7.00 am to 6.00 pm Monday to Friday. Approval is also sought for the removal of one (1) street tree, which is to be replaced clear of the proposed widened driveway access. There is no objection to the removal of the tree.
In exercising the functions of the consent authority on appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.
The hearing took place on 8, 9 and 27 June 2022 and included a view of the site and the surrounding area on the first day of the hearing in the company of the parties' representatives.

[2]

[4]

Issues remaining in dispute between the parties

The respondent maintains that the development in its amended form [Ex H, M and N] is unsatisfactory on a number of grounds. In summary form, these are as follows: 1. Traffic and parking: Whilst the traffic and parking experts supported the DA, members of the public oppose it due to concerns regarding safety and inadequacy of parking to be provided on site, loss of on-street parking and the increase of vehicular traffic, particularly on Beattie Avenue in proximity to the site. 2. Locational suitability: Whether the site's location in a low density residential zone, midblock and not on a corner, and sharing a boundary with five (5) other established residential properties make it unsuitable for use for the purpose of a 64 place centre-based childcare centre. 3. Streetscape and character: Impact thereon arising mainly from the front elevation of the proposed building caused primarily by the appearance of the proposed basement which will be set below an upper two storey element and set back approximately 12.5 m from the street boundary. The respondent is also critical of the width of the two way driveway (approximately 6.1 m) necessary to provide access to and from the basement carpark. 4. Sufficiency of natural ventilation of indoor play areas on level 1: This issue is confined to the upper storey of the childcare centre and in particular to the need to close the windows and skylights of two indoor play areas, which are allocated for use by 3-5 year-olds (a total of 50 children) whilst those areas are occupied. The openings referred to are required to be closed in order to meet recommended acoustic limits for noise emanating from those rooms in the direction of neighbouring properties to the south-west of the site. 5. Acoustic impacts: Whether there will be an unacceptable adverse impact on the amenity of neighbouring properties sharing a boundary with the site, resulting from noise from within the proposed building, external play areas, and cars entering and exiting the driveway. 6. Operational plan of management: Whether the proposed plan is sufficiently comprehensive and contains sufficient provisions which are capable of practical implementation and enforcement so as to ensure potential adverse neighbourhood impacts are minimised to an acceptable level.
I will consider each of the above issues in the course of my determination of this appeal.
Other contentions, originally raised by the respondent in an Amended Statement of Facts and Contentions filed on 2 June 2022 [Ex 1] and relating to landscaping, carparking, the layout of the basement, the amount of excavation, fencing, dimensions of indoor and outdoor playspace, the extent of overshadowing and insufficient information were resolved to the respondent's satisfaction by amended plans, supplementary documentation, expert evidence and agreed conditions to be imposed in the event that development consent is granted.

[10]

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (ESEPP) and companion instruments

ESEPP continues to apply to the application because the application was lodged with the respondent before 1 March 2022.
Clause 23 of ESEPP provides: 23 Centre-based child care facility - matters for consideration by consent authorities Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development.
Clause 26 of ESEPP: 26 Centre-based child care facility - development control plans (1) A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility - (a) operational or management plans or arrangements (including hours of operation), (b) demonstrated need or demand for child care services, (c) proximity of facility to other early education and care facilities, (d) any matter relating to development for the purpose of a centre-based child care facility contained in - (i) the design principles set out in Part 2 of the Child Care Planning Guideline, or (ii) the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates). (2) This clause applies regardless of when the development control plan was made.
It follows that any development control plan that infringes cl 26 will not apply to the subject development proposal. Further, the 'Guideline' referred to is the Child Care Planning Guideline 2017 (Guideline) [Ex 2 tab 4] which requires consideration and which contains provisions which call up the Education and Care Services National Regulations (ERegs). These ERegs must be observed by the provider of an education and care service and are thus matters for consideration by the consent authority as part of the determination of an applicable development, which includes the subject DA.

[13]

Traffic and parking evidence

The traffic experts informed the Court that all issues between them were resolved. At the Court's request, they were asked to summarise their points of agreement and in particular, to address the concerns raised by the residents.
They stated:

Beattie Avenue is a residential street with a length of approximately 380 m between its closest intersections. The on-street parking supply was estimated at 85 places, with less than 50 per cent in use during peak periods. In their opinion, the development would have minimal impact on capacity for street parking.
Based on traffic counts undertaken throughout the day on 26 October 2021, existing traffic volumes on Beattie Avenue were agreed as relatively low for a typical residential street. The greatest volume recorded was between 8.15 am and 9.15 am (84 vehicles). With a 50 per cent loading (an agreed correction for COVID) current volumes were estimated at approximately 136 vehicles per hour, which was well within the RMS environmental goal of 200 vehicles per hour.
In terms of projected traffic generation rates for long day childcare centres based on 64 children, the following increases were agreed: 1. 51 morning peak period (7.00 am to 9.00 am) vehicle trips (26 in and 25 out) spread over a two hour period. 2. 19 afternoon peak period (2.30 pm to 4.00 pm) vehicle trips (10 in and 9 out) spread over a 1.5 hour period. 3. 45 early evening peak period (4.00 pm to 6.00 pm) vehicle trips (22 in and 23 out) spread over a two hour period.

Based upon the above information, the experts agreed that Beattie Avenue can accommodate the additional low impact flow arising from the use of the site as a childcare centre without any unacceptable adverse impact.
With respect to off-street parking for staff and visitors, the experts agreed that the provision of six staff spaces (one space per two staff members) for a maximum of 12 staff and eight visitor spaces (one space per eight children) for a maximum of 64 children, was compliant with the respondent's requirements for childcare centres (DCP 2014 Pt 3.2 cl 5.2). They advised that the average drop off and pick up time was 6.8 minutes, which with eight dedicated spaces and 64 children, could accommodate the projected visitor parking even if all the children arrive within a one hour time period. However, in reality, the traffic experts were of the opinion that drop off and pick up would be likely to be far more conservatively spread over two hour periods.
They were satisfied with the use of basement parking and its layout from a safety and traffic engineering perspective.
The proposed 6.1 m driveway width exceeded the respondent's DCP 2014 minimum of 5.6 m-5.8 m and allowed for the forward entry and exit of vehicles. They recommended a parking management system with sensors and a warning light to advise motorists when all carparking spaces were occupied. This would reduce the likelihood of onsite vehicular conflict.
Finally, they recommended that vehicular egress from the driveway into Beattie Avenue be restricted to 'left-turn only' through the provision of a raised triangular concrete median island located on the verge with appropriate sign-posting. This restriction would ensure that the current levels of service at the intersections with Beattie Avenue would be maintained.

[15]

Town planning issues

The concerns with the planning aspects of the development expressed through the respondent's expert, Mr Clendenning, may be summarised as follows:

That the basement carpark and associated support walls would introduce a discordant element within the streetscape of Beattie Avenue, which he stated was currently characterised by at-grade driveways and carparking.
That access to the carpark via a 6.1 m wide driveway would give rise to a dominant streetscape element not otherwise found within the locality.
That the basement carpark with two storeys of development above would result in an uncommon three storey presentation to a viewer in Beattie Avenue. Mr Clendenning stated that he was less focused on the garage door as an uncharacteristic element and was more concerned about the overall presentation of the basement, which he believed detracted from the building's otherwise domestic scale. He confirmed in his oral testimony that 'the materiality and roof design are good' and that he was not concerned about the depth of excavation required for the carpark.
That the location of the site was unsuitable for a childcare centre because it shared a common boundary with five properties, comprising a total of seven dwellings and was located midblock rather than on a corner site. Mr Clendenning relied upon the provisions of DCP 2014 Pt 3.2 cl 2.1.1 which states that such sites "are not preferred" and cl 5.1, control (f) which states that "underground parking is not permitted in low density residential areas".
While Mr Clendenning acknowledged the primacy of the Guideline over DCP 2014 controls with respect to any matter relating to development for a childcare centre contained in the design principles in Pt 2, the matters for consideration in Pt 3 or the regulatory requirements in Pt 4 in the Guideline (cl 26 ESEPP), he did not believe that the aforementioned controls 'competed' with any provision of the ESEPP or the Guideline [Ex 4 page 9].
That the poly-carbonate acoustic fences set in 1.5 m from the site's side boundaries and the limited ability to open windows and skylights were indicative of the unsuitability of the site for its proposed purpose. Further, the height of the fencing (from 2 m to 2.4 m and up to 3 m from the proposed ground level retaining walls) gave rise to an unreasonable sense of enclosure for children playing in the rear outdoor area.
That the childcare centre was designed as a two storey building with the second storey to be used for playroom space rather than for storage and staff facilities, contrary to DCP 2014 cl 3.2, control (c). This issue was not of concern to Mr Clendenning, but it was maintained as an issue by the respondent.

In response to those concerns, Mr Moroz was of the opinion that the design of the centre was domestic in appearance and scale. Any visible partial third storey element incorporating the basement was not out of character in the streetscape of Beattie Avenue due to the basement being set below the existing ground level of surrounding properties and set back 12.5 m from the street's frontage and behind the face of the building, which itself was respectful of the general building line on the northern side of Beattie Avenue.
Mr Moroz was of the opinion that the consequence of the location of the basement was that it was not generally visible in the streetscape unless viewed from directly opposite, and even from that vantage point, was obscured by its position below street level. In addition, Mr Moroz pointed to other dwellings in close proximity to the site which had wide driveways at or above grade, which he believed had a similar, if not greater, impact on the streetscape than the proposed basement. Mr Moroz noted that the proposed building complied with the controls contained in RLEP 2014 relating to height, FSR and that the boundary setbacks were typical of other dwellings in the surrounding area.
With respect to the proposed acoustic fencing, Mr Moroz was of the opinion, supported by the landscape experts [Ex 8 joint report] that the setting in of the fence by 1.5 m from the boundary fencing enabled effective screen planting to be established and maintained on both sides of the acoustic fence. The result was that it would not have an unacceptable visual impact from within or from outside the site.
Mr Moroz stated that in his opinion the provisions of DCP 2014 relating to preferred locations, restriction upon basement parking and upon the use of level 1 for play areas had no effect due to the operation of cl 26 of the ESEPP.
He regarded that the proposed centre was located on a suitable site and he referenced the Guideline Pt 3.1 and the considerations relevant to site selection and location contained therein [Ex 4 par 12].
Finally, he noted that there was no disagreement between the planning experts with respect to visual privacy or overshadowing impacts. He said that the design approach had been undertaken in a way that, as amended, ensured that reciprocal amenity outcomes were afforded [Ex 4 par 67].
Both Mr Moroz and Ms Barnes supported the use of the upper storey for indoor playrooms, as was proposed. In Ms Barnes' experience, multi-level childcare centres were common and were functional. On the issue of the purported unreasonable sense of enclosure due to the acoustic fencing, Ms Barnes did not agree with Mr Clendenning. She stated that the poly-carbonate construction which would allow it to be seen through and which would let light in, together with proposed tall, landscape screening, was entirely acceptable for an outdoor play area. Ms Barnes described the design as likely to create a great outdoor experience. In her professional experience, upon which she elaborated in her oral testimony, the eye-line of children and their focus upon ground based play equipment and facilities meant that they were very unlikely to notice or be concerned with the height of the perimeter fencing [Ex 5 pp 4-5].

[16]

The design of the child-care centre is compatible with the surrounding residential development and the location is appropriate.

I have taken into consideration the planning controls and the evidence of the expert planning and childcare witnesses, and I am satisfied that the proposed childcare centre, with its fencing and parking arrangements, is appropriately located and compatible with the varied streetscape in the vicinity of the site. I am further satisfied that the design of the building responds to and contributes to its context and achieves a scale, bulk and height which is responsive to the existing varied character of the area and the building's purpose as a childcare centre. My reasons are as follows:
First, it may be observed that the aim of ESEPP is: 3 Aims of Policy: The aim of this policy is to facilitate the effective delivery of educational establishments and early education and childcare facilities across the State by Improving regulatory certainty and efficiency through a consistent planning regime for educational establishments and early education and care facilities, and Simplifying and standardising planning approval pathways for educational establishments and early education and care facilities ... , and Establishing consistent State-wide assessment requirements and design considerations for education and care facilities to improve the quality of infrastructure delivered to minimise impacts on surrounding areas ...
As previously noted, cl 23 of ESEPP directs the consent authority to take into consideration any applicable provisions of the Guideline in relation to the proposed development.
Clause 26 of ESEPP, consistent with the aim in cl 3 of ESEPP, mandates that a development control plan that specifies a requirement, standard or control in relation to any matter relating to development for the purpose of a centre-based childcare facility contained in Pt 2, 3 or 4 of the Guideline does not apply.
The above regulatory scheme and the broad wording of cl 26 of ESEPP makes it clear that ESEPP intends that the provisions of a DCP that touch upon design, matters for consideration or the regulatory requirements of the ERegs simply do not apply to this DA. There is no requirement to first establish any inconsistency or contradiction. Rather, the DCP provisions simply will not apply in the circumstances identified in cl 26 of ESEPP.
It follows that many of the provisions of DCP 2014 Pt 3.2 do not apply to the consideration of this DA. This would include requirements, standards and controls regulating basement parking, the location of childcare centres and the restriction on the use of an upper storey for the purpose of play space.
To give but one example, design principle 2 in Pt 2 of the Guideline sets out broad principles for built form of a childcare centre. Clause 3.8 in Pt 3 under the heading 'Considerations' says 'carparking within a basement can provide optimum use of the site area and minimise visual impacts'. By comparison, DCP 2014 cl 5.1 control (f) provides 'underground parking is not permitted in low density residential areas'. In the Court's view, the consequence of s 26 of ESEPP must be that the DCP 2014 control does not apply to the subject development.
Even if the DCP 2014 controls could be said to have continuing application, the consent authority is required to consider them pursuant to s 4.15(1)(a)(iii) of the EPA Act but is not obliged to impose them. Flexibility is required where reasonable alternative solutions are proposed which achieve the objects of the standards (s 4.15(3A) EPA Act). In the Court's opinion the departures from the DCP 2014 controls are acceptable in the present case.
Second, use for the purpose of a centre-based childcare facility is a nominated (rather than innominate) permissible use with consent in the zone. It may be expected that, in most cases, an application for a permissible use warrants approval, provided, of course, that the design of the proposal results in acceptable environmental impacts: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [117]-[118].
Third, the parties have agreed that the proposal is consistent with the relevant object of the R2 zone, which is 'to enable other uses that provide facilities or services to meet the day-to-day needs of residents'.
Fourth, the proposal complies with both the height and FSR controls in RLEP 2014. It complies with all relevant boundary setback controls and incorporates standard domestic design elements which will enable it to be compatible with the varied local domestic character evident in the streetscape.
Fifth, the location of the site is acceptable in traffic and parking terms and the placement of the 14 carparking spaces in a basement garage is far more likely to bring about an acceptable streetscape outcome than locating them on site at grade where they would be conspicuous and difficult to screen with landscaping. I note that all experts agreed that carparking should not be located at grade at the rear of the site.
Sixth, the respondent's planner identified the underlying objective of the prohibition of basement parking as being 'to preserve the streetscape'. That objective is arguably better met by the subject proposal with basement parking with its limited visibility in the streetscape. It is likely to be less obvious than other developments in Beattie Avenue where the parking is external to the dwelling, at grade and, in some cases, elevated.
Seventh, notwithstanding the proposed two storey construction, the experts agree that there are no visual privacy impacts or unreasonable overshadowing impacts upon surrounding neighbours. The impact of the childcare centre upon acoustic amenity will be minimised for the properties which share a boundary with the site by the use of acoustic screens and shielding. In that regard the acoustic experts have agreed that the centre can operate in compliance with acoustic limits relevant to a residential childcare centre. Those acoustic limits will be imposed as a condition of consent and a compliance test will be required when the centre is operational to verify that the imposed limits are not being exceeded. Non-compliance will require rectification and re-testing to confirm that compliance has been achieved.
Eighth, I am satisfied that the DA, as amended, will appropriately address the planning objectives of the Guideline set out in cl 1.3: The planning objectives of this Guideline are to: " Promote high quality planning and design of childcare facilities in accordance with the physical requirements of the National Regulations. Ensure that childcare facilities are compatible with the existing streetscape, context and neighbouring land uses. Minimise any adverse impacts of development on adjoining properties and the neighbourhood, including the natural and built environment."

[19]

Ventilation to level 1 indoor play areas

As a consequence of the need to ensure acoustic compliance with the agreed noise criteria, it will be necessary for the windows and operable skylights to indoor play areas 3 and 4 at level 1 to be closed when those rooms are occupied. To ensure that the indoor spaces used by children are 'well ventilated' as required by Reg 110 of the ERegs, an alternative ventilation solution is required.
The applicant proposes mechanical ventilation via air-conditioning and an acoustically lined fresh air intake duct. The acoustic experts agree that any such ventilation system is required to be certified to Australian Standard 1668.2 (AS 1668.2). This solution would deliver a modicum of fresh air to the relevant indoor play areas.
As previously observed, cl 23 of ESEPP instructs the consent authority to take into consideration any applicable provisions of the Guideline prior to determining a DA for development for the purpose of a centre-based childcare facility.
The Guideline contains 'guidance' on the subject of ventilation. Design quality principles 4 and 6 are relevant. "Principle 4 - Sustainability Sustainable design combines positive environmental, social and economic outcomes. This includes use of natural cross-ventilation, sunlight and passive thermal design for ventilation, heating and cooling reducing reliance on technology and operation costs. Principle 6 - Amenity Good design positively influences internal and external amenity for children, staff and neighbours. Achieving good amenity contributes to positive learning environments and the wellbeing of students and staff. Good amenity combines appropriate and efficient indoor and outdoor learning spaces, access to sunlight, natural ventilation, outlook, visual and acoustic privacy ..."
The Guideline Pt 4 cl 4.4 provides design guidance by way of commentary upon EReg 110 "Design Guidance Ventilation Good ventilation can be achieved through a mixture of natural cross ventilation and air-conditioning. Encouraging natural ventilation is the basis of sustainable design; however, there will be circumstances where mechanical ventilation will be essential to creating ambient temperatures within a facility."
There is some linguistic tension between EReg 110 and the Guideline, and also, within the Guideline itself. The Guideline is more expansive than EReg 110, which only requires childcare premises to be 'well ventilated'. It does not, in terms, require 'natural ventilation' and it further states that such premises must be 'maintained at a temperature that ensures the safety and wellbeing of children'. Obedience to the last-mentioned requirement will inevitably result in sources of natural ventilation being closed except when weather conditions are mild. Further, the Guideline refers to the desirability of natural ventilation and of cross ventilation in the design quality principles, but with respect to design guidance when commenting upon EReg 110, speaks of a mixture of natural cross ventilation and air-conditioning, but acknowledges that there will be circumstances where 'mechanical ventilation will be essential to creating ambient temperatures within a facility'.
The acoustic and planning experts and the childcare expert were asked to comment on their experience with ventilation of modern childcare centres. They agreed that it was not unusual for childcare centres to rely upon mechanical ventilation in order to maintain optimum internal comfort levels. In particular, Ms Barnes, with whom Mr Moroz agreed, advised that a controlled atmosphere was desirable for young children so as to maintain appropriate comfort levels and their attention levels. She said that many centres rely entirely upon mechanical ventilation notwithstanding that accompanying outdoor areas are less open to the sky than what is proposed in the subject DA.
It is also of relevance that the respondent did not submit that the level 1 ventilation restrictions were, of themselves, a reason to refuse the DA.

Basevski v City of Ryde Council

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