Bolic v Penrith City Council

Land and Environment Court (NSW)|2024-10-23

Judgment

COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Ms Bolic (Applicant) against the refusal by Penrith City Council (the Respondent) of Development Application (DA23/0013) (the Application) for a Centre Based Child Care Facility. The Application was refused on 26 May 2023.

The Proposal

Broadly, the Application proposes the construction of a two-storey Centre Based Child Care Facility. The facility would accommodate a maximum of 62 children, plus educators, with basement parking (the Facility). The Application includes ancillary works such as an acoustic fencing solution and landscape works (that seeks removal of several trees).
The Application proposes operation from Monday to Friday between the hours of 7am to 6pm. The Application also seeks approval to operate on Saturdays between 7am and 5pm.
During the appeal process the Applicant sought leave, which was granted, to rely on amended plans on the basis that the adjustments addressed various issues raised in the Statement of Facts and Contentions (SOFAC's).

The Site and Locality

The site is a single parcel of land, which has a legal description of Lot 7109 in Deposited Plan 258855. The land is otherwise known as 2 Coowarra Drive, St Clair (the Site).
The Site is a corner allotment with frontage to Coowarra Drive and Blackwell Avenue, St Clair. The land parcel is regular in shape and has an area of approximately 794.1m², a 21m frontage to Coowarra Drive and 28.965m to Blackwell Avenue. (This image is an extract from the Statement of Facts and Contentions, p 4). Figure 1 - Aerial image of Site and vicinity (Source: Statement of Environmental Effects from Think Planners dated 22 December 2022.)

Public Submissions

The Application was advertised in a local newspaper (Western Weekender) on 26 January 2023 and notified to adjoining and nearby property owners and residents, with the public exhibition period between 30 January 2023 and 13 February 2023. The Respondent received seven submissions which have been considered as part of the assessment process. Oral evidence was provided by objectors at the commencement of the Hearing.

The Assessment Framework for the Application

The state policy, State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) contains specific requirements for a Centre Based Child Care Facility. The relevant sections in the TI SEPP also cross reference further requirements in the Education and Care Services National Regulations (2011 SI 653) (NSW).
A further requirement, in s 3.23 of the TI SEPP, is that the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline (September 2021) (the Guideline). The Guideline was published in the Government Gazette of New South Wales on 1 October 2021.
The Guideline establishes "the assessment framework to deliver consistent planning outcomes and design quality for centre based child care facilities in New South Wales" (the Guideline, p 5). They are an overarching planning document guiding the assessment of centre based child care facilities. The Guideline abbreviates the term "centre based child care facility" to the term "child care facility" (p 5).
The TI SEPP also includes a number of matters that are not applicable in the assessment of centre based child care facilities. Section 3.27, of the TI SEPP, is as follows: 3.27 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 section applies regardless of when the development control plan was made.

The Penrith Local Environmental Plan 2010 (PLEP 2010)

The Site is located within an area of R2 Low Density Residential zoned land pursuant to The Penrith Local Environmental Plan 2010 (PLEP 2010). The proposed development is defined as a Centre Based Child Care Facility, which is permissible with development consent, within the zone. Development for the purposes of a Centre Based Child Care Facility is listed as permissible with consent in the land-use table applying to this Site.
The PLEP 2010 sets the development standard for the maximum Height of Buildings, pursuant to cl 4.3, of 8.5m. It is agreed that the development does not exceed the Height of Buildings development standard.
The PLEP 2010 sets out, in cl 7.30, a number of matters in respect to Urban Heat. The consent authority can only grant development consent when satisfied that planning and design measures are incorporated to reduce the urban heat island effect that - (a) maximise green infrastructure, and (b) retain water in the landscape, and (c) use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and (d) use building, paving and other materials that minimise heat impacts, and (e) reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources. (cl 7.30 (3) of PLEP 2010)
The threshold for compliance with cl 7.30 of the PLEP 2010 is low. The satisfaction of the jurisdictional requirement is achieved by incorporating at least one design solution for each of the subclauses in the list above. A design approach that includes measures from each of the five categories would remove any ambiguity as to whether or not one or all of subclauses (a) to (e) need to be included.

The Penrith Development Control Plan 2014

There is a further level of assessment against the requirements of the Penrith Development Control Plan 2014 (PDCP). The Application of the PDCP is limited by the provisions of s 3.27 of the TI SEPP which exempts the application of development control plans on certain criteria (see [11] above).
A further consideration are the requirements of s 4.15(3A) of the EPA Act. This section gives context to the role of a Development Control Plan (DCP) in the assessment of development applications. In particular, a consent authority must be flexible in applying the provisions of a development control plan and allow reasonable alternative solutions, that achieve the objects of those standards, when dealing with that aspect of the development.

A Question of Jurisdiction - Clause 7.30 PLEP 2010

The Respondent takes the position that the threshold requirements of cl 7.30 of the PLEP 2010 are not met. This is on a two-tiered basis, the first being that the relevant state of satisfaction can only be achieved if planning and design measures, from each of the five categories, are all met. The Respondent takes focus on subcategory (d) which relates to building, paving and other materials.
The second tier is advanced by the Respondent, in part, by an assessment against various aspects of the PDCP. This includes Part 14.3 of C-14 in respect to roofs and exterior walls and control B.1, in respect to materials and finishes, which the Respondent says, have not been achieved. The Respondent draws the conclusion that a failure to comply with some specific aspects of the DCP is a failure to meet the jurisdictional requirements of cl 7.30 of the PLEP 2010.
The jurisdictional requirement does not require an exhaustive list of design solutions to achieve satisfaction. The threshold is informed by the words in cl 7.30 of the PLEP 2010, which are, "planning and design measures are incorporated to reduce the urban heat island effect". A proposal that "incorporates a measure", or "incorporates some measures", that address each of the subclauses, would allow the consent authority to be satisfied that cl 7.30 has been met. The jurisdictional threshold is met simply by inclusion of the measures.
There is no statutory or jurisdictional requirement that requires consideration of the elements of the PDCP in order to assess the compliance with cl 7.30 of PLEP 2010. The Respondent's position, that a failure to comply with an element of the PDCP is fatal to the satisfaction of cl 7.30 of the PLEP 2010, has no utility if the satisfaction of cl 7.30 of the PLEP 2010 is already achieved by other means. The jurisdictional threshold is achieved by the inclusion of those outcomes in the planning and design solution.
The Applicant takes a broader approach by demonstrating compliance with each of the subclauses of cl 7.30 of the PLEP 2010. This includes but is not limited to; significantly improved landscape outcomes, the provision of landscaping and building elements on the roof, the use of insulation, the provision of natural ventilation (operable windows), window design to reduce heat gain (including timber battens on northern facades), provision for the installation of solar panels and locating plant equipment to reduce heat impacts. The Applicant has demonstrated that the proposal includes design solutions that address each of the subclauses in cl 7.30 of the PLEP 2010.
I am satisfied, after reviewing the material provided in the Application, and upon review of the submissions made by the Applicant (as outlined in [22] above), that planning and design measures have been incorporated to reduce the urban heat island effect. I am satisfied that the evidence demonstrates compliance with the jurisdictional threshold created by cl 7.30 of the PLEP 2010.

What are the remaining issues?

The parties rely on evidence prepared by a variety of experts covering the subjects of town planning (Ex 2), landscaping (Ex 3), stormwater (Ex 4), arboriculture (Ex 6), and acoustics (Ex 7). These Reports addressed the issues raised in the amended SOFAC's which included an assessment of the suitability of the Site, the streetscape, the design and function of the proposal and impacts on amenity and the natural landscape. The evidence also covers issues raised by objectors relating to traffic, parking and amenity concerns.
The provision of additional information has either resolved the issues between the parties or enabled a clear articulation of the outstanding issues before the Court. The result of these amendments is that the experts agree that the Application before the Court has satisfactorily addressed many of the merit issues raised in the SOFAC's.
The Respondent, in written submissions, states the remaining merit based issues are: 1. the compatibility of the proposed development with the streetscape character of the local residential area; 2. potential interference with an easement at the rear of the property; and, 3. whether the proposed child care centre should be permitted to operate on a Saturday.

Has the design of the proposed development adequately considered the local character?

Part 1.4 of the Guideline provides an explanation as to the application of the Guidelines and Development Control Plans when seeking to regulate a child care facility. Part 1.4 draws on the wording of the TI SEPP (see [11] above) and explains that the circumstance where the numeric controls in a DCP are applicable, relate to building height, rear and side setbacks and car parking rates.
Part 3 of the Guideline sets out a number of matters for consideration that must be considered by the consent authority when assessing a development application for a child care facility. Part 3 sets out a series of sections where matters for consideration are grouped by relevance. Each of the subsections contain a subheading - Considerations - which contain a number of objectives and "Considerations" to inform the assessment process.
Part 3.2 of the Guideline deals with local character, streetscape and the public domain interface. It is these matters that require deliberation in the assessment of this Appeal. Jurisdictionally, all that is required is that the matters are "considered". The material in the Application provides a depth of information sufficient to allow the required consideration of the proposal against the matters in the Guideline.
Part 3.2 - Local character, streetscape and the public domain interface, has specific objectives followed by Considerations numbered C5 to C10. A relevant "Consideration" in this assessment is a requirement to ensure that the child care facility is compatible with the local character and surrounding streetscape.
Expert evidence on the town planning issues, including the local character, was provided in the form of a Joint Expert Report (Ex 2) prepared by:

Mr Robert Walker - Penrith City Council (Respondent)
Mr Jonathon Wood - Think Planners (Applicant)

The "Consideration for local character" is found in Part 3.2 of the Guidelines and includes an Overview, an Objective and Consideration C5: "C5 The proposed development should: • contribute to the local area by being designed in such a way to respond to the character of the locality and existing streetscape • build on the valued characteristics of the neighbourhood and draw from the physical surrounds, history and culture of place • reflect the predominant form of surrounding land uses, particularly in low density residential areas • recognise and respond to predominant streetscape qualities, such as building form, scale, materials and colours • include design and architectural treatments that respond to and integrate with the existing streetscape and local character • use landscaping to positively contribute to the streetscape and neighbouring and neighbourhood amenity • integrate car parking into the building and site landscaping design in residential areas • in R2 Low Density Residential zones, limit outdoor play space to the ground level to reduce impacts on amenity from acoustic fences/barriers onto adjoining residence, except when good design solutions can be achieved." (the Guideline, p 13)
There are additional Considerations to be found in the subsequent Parts of the Guidelines that deal with building design and landscape settings. The provisions, generally, require consideration of the elements that make up a streetscape and the resultant character. They set out a series of considerations, which are broad outcomes, that a development should be able to achieve.
The evidence of the Respondent is heavily focussed on the Application of the PDCP in the assessment of the front setback. The SOFAC's also include significant references to the PDCP, despite it having limited utility in the assessment given the limitations imposed in the TI SEPP and the Guideline. In particular, Mr Walker provides significant assessment of the proposal against clauses within the DCP (pars 32-41 of Ex 2). This includes a heavy reliance on the numerical controls relating to front setbacks, building envelopes, building footprints, and landscaped areas as a guide as to whether, or not, the development is acceptable.
Mr Walker draws the conclusion that because the proposal is set forward (by 1.0m) of the dwelling to the east (in Coowarra Drive), there would be an adverse impact upon the existing open streetscape. This position, and the overall position of the Respondent, appears at odds with the agreed position of the Town Planning experts, at par 20 in Ex 2, which says, "In relation to particular (j) we agree that, numerically, the proposal is compliant with the DCP front setback provisions other than an encroachment of part of the corner of the building to Coowarra Drive that does not achieve a 7.5m setback on the corner - we disagree as to whether that is acceptable".
Contention 3 also raises the issue as to whether the landscaping solution for the Site positively contributes to the streetscape and neighbouring amenity, specifically quoting Part 3.2, C5 of the Guideline, as a relevant matter. A Joint Expert Report was prepared by Ms Surian (Landscape Architect for the Applicant) and the town planners involved in this matter, Mr Wood (Applicant) and Mr Walker (Respondent) (Ex 3). The experts note that neither Mr Wood, nor Mr Walker, have landscape or horticultural qualifications.
The Respondent provides no expert landscape evidence on this Contention. Mr Walker does not raise any expert response other than to correctly note that Ms Surian's response references provision of the Guidelines (par 11). The evidence of Ms Surian is: "In response to Particular 3(a)(i) I believe that the landscaping detailed in the current landscape drawing (Outside In Design, Revision D, dated 19-09-24) contributes positively to the local neighbourhood and is reflective of the modern style of landscape planting typically seen in new residential developments, i.e. Mixed massed native and mixed exotic species featuring a canopy tree and smaller feature trees which act to anchor the built form and contribute to an emerging landscape character." (Ex 3, par 8)
Mr Wood assesses the character with a broader approach that is consistent with the approach required by the Guidelines. The approach by Mr Wood includes an assessment of the physical and visual impact between a building and its surrounds, a process outlined in the decision of Roseth SC in Project Venture Developments V Pittwater Council [2005] NSWLEC 191.
There are several statements, in the evidence of Mr Wood, which demonstrate a considered assessment against the required local character elements in the Guideline. These found in par 51 of Ex 2: "The 2 storey façade and presentation is suitably articulated and modulated to break up the building and the materials, finishes and colours further assist and adopt residential proportions and features to windows and a pitched roof- embodied on the 3d associated with the amended plans. Therefore the proposal takes cues from other observed built forms in the locality - notably those newer built forms that are emerging and are likely to continue to do so. The built form is responsive to elements of the character of the locality with the face brick, render, and pitched roof elements to the street. The feature timber battens to the curve are appropriate in view. The building form steps in at the upper level as desired by the building envelope control. In relation to setbacks and separation and character the existing setbacks vary in the locality and the newer forms observed are wider and larger than the smaller scale original cottages."
I am satisfied that the matters in Part 3 of the Guidelines, have been adequately considered. The evidence of Mr Wood and Ms Surian is considered, relevant, and addresses the required matters. The Guideline requires a more considered evaluation of the "valuable" aspects of the character which these two experts have undertaken. In particular, the evidence responds to the "valued" aspects of the local character that should be embedded in the design solution.
The overall evidence provided by the Applicant demonstrates that the proposal before the Court achieves the objectives of the Guidelines as they apply to Local Character and Building Design. I agree that the resultant design incorporates the outcomes in C5 of Part 3.2 of the Guidelines, and other considerations in Part 3.3, and will achieve compatibility with the local character and surrounding streetscape.
In closing submissions, the Applicant outlines the decision of Gray C in Carpenter Street Centre Pty Ltd atf The Carpenter Street Centre Trust v Penrith City Council [2024] NSWLEC 1005 ([52] to [55]). I note that the position taken in this judgment is consistent with the approach of Grey C, in respect to the Application or otherwise, of the PDCP.

Are the proposed landscape works within the rear easement acceptable?

Contention 3, Particular (K), raises issues around infrastructure and planting that may impede on an easement (for the purpose of draining water) that is located along the rear of the subject Site. This Contention also raises concerns about the proximity of both landscaping and proposed works which may impede on a Sydney Water sewer main asset.
Mr Walker agrees, both in the Joint Expert Report and in oral evidence, that the proposal meets the Sydney Water requirements. The lingering issue for Mr Walker is whether the proposed landscape scheme would adversely impact upon beneficiaries; accessing, maintaining and replacing any associated drainage infrastructure, within the 2m wide drainage easement located immediately alongside the northern / rear boundary (Ex 3, par 56).
Ms Surian (Landscape Architect) deals with these issues in Ex 3: "53 In relation to the Sydney Water sewer main asset, tree plantings have been repositioned to meet the minimum offsets detailed in Sydney Water's 'Technical Guidelines for Building over and adjacent to pipe assets 2021'. This is detailed in the amended plans being used for JER purposes (Outside In Design, Revision E, dated 14-10-24). (Ex 3, par 53) 54 In relation to the registered easement in the play area, JW raises concerns about future use of this easement corridor and impacts on the landscaping that may happen if the neighbouring lots [that benefit from the easement] seek access to it. It is unclear what this easement is for (i.e. overland flow or for stormwater pipe), however assuming it is for a pipe, then any future works could be done by way of horizontal directional drilling underground thus leaving the landscaping intact. This would also result in no disturbance to the play area and vegetation." (Ex 3, par 54).
As the proposal meets the requirements of Sydney Water, the lingering issue is whether or not there is some future impediment to a beneficiary of the easement. In short, I accept the unchallenged evidence of Ms Surian, in respect to the technical solutions, as to why the proposed development does not warrant rejection on the basis of the proposed landscape solution within the easement.
In reaching that conclusion, I note that Ms Surian has provided a technical explanation as to the nature of the planting that will occupy the easement. The nature of the planting, the use of the common approach of horizontal drilling for piping, and the presence of the shed (which would currently impede overland flow) have also been considered in reaching the conclusion that this aspect of the development does not warrant refusal of the Application.

Should the Facility operate on a Saturday?

The Applicant has pressed the question as to whether the premises can operate on a Saturday. The evidence of both town planners is that "Saturday operations are not characteristic in an R2" (Ex 2, par 79).
The Guideline provides some input on hours of usage. C28 and C29 contemplate extended hours when the proposed facility is adjacent to non-residential land uses. Implied in this consideration is that the non-residential land uses may not be confined to weekday use and therefore, some flexibility is possible where the land use character is different on weekends and the operation of the child care facility is part of that different character.
I concur with the evidence of the town planners. The subject Site is adjacent to a school (across the road). Schools are predominantly a weekday use leaving the weekend significantly quieter. The weekday school use does not, without more considered assessment and analysis, justify extending the hours of the Child Care Facility into the weekend. In the event that development consent is granted to the proposal, a condition can be imposed restricting Saturday operations.

Should the bottle brush trees be retained?

Expert evidence on arboriculture was provided in the form of a Joint Expert Report (Ex 6) prepared by:

Ms Donna Montgomery - Penrith City Council (Respondent)
Ms Catriona Mackenzie - Urban Forestry Australia (Applicant)

The arborists agree, in the Joint Expert Report, that trees 1 and 2 can be retained subject to appropriate conditions being imposed. They agree that trees 3 and 4 will not survive impacts from the proposed development; they disagree as to whether trees 3 and 4 should be retained.
The conclusion reached by Ms Montgomery is that a redesign of the development is required. The reasoning to support this position is that trees 3 and 4 "are in good health, provide screening and shade to the property, are private trees that contribute to the public domain and should be retained (Ex 6, par 40)".
The issues of landscape character, amenity and shading are discussed in the Landscape Joint Expert Report (Ex3). I am satisfied that the criteria raised by Ms Montgomery has been dealt with in the Landscape Joint Expert Report by Ms Surian (pars 8, 9, 14, 149, 154 and 165) and that the overall landscape solution provides the required outcomes in terms of amenity and shading, as well as appropriate streetscape outcomes. As a result, I am satisfied that trees 3 and 4 can be removed as per the proposal.

What are the remaining jurisdictional matters requiring consideration?

Consideration has been given to the potential contamination of the Site, pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), which applies to the Site. The Application was supported by a Preliminary Site Investigation (PSI) Report (the PSI Report) prepared by EIAustralia (January 2023). The PSI Report canvassed the potential environmental risk as well as acid sulphate soils, geology and hydrology issues. The parties are not in dispute that the matters relating to potential contamination have been adequately investigated. I am also satisfied, on the basis of the PSI Report that the requirements of the SEPP Resilience and Hazards have been met.
The PSI Report also dealt with matters raised in cl 7.1 Earthworks and consideration required by cl 7.6 Salinity of the PLEP 2010. The information was supplemented by a geotechnical report prepared by STS Geotechnics Pty Ltd (dated April 2024) which also considered the matters raised by cl 7.1 Earthworks in PLEP 2010. The collective findings have been considered by the Respondent and have not given rise to contentions that are in dispute between the parties. I have considered the material provided in accordance with the requirements of these clauses. I am satisfied that the material also covers the requirements of cl 7.1 and cl 7.6 of PLEP 2010.
State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) requires consideration in the assessment of the proposal. Chapter 6 applies as the Site is within the Hawkesbury-Nepean Catchment Area. The Applicant provided a Water Sensitive Urban Design Strategy, prepared by Engineering Studio, Civil and Structural (May 2024) in concert with stormwater solutions for the Site. These Reports are supplemented by the expert evidence of the Engineers, in the form of a Joint Experts Report, with outcomes that fine-tuned the engineering solutions for the Site (Stormwater Joint Expert Report, Ex 4).
The Statement of Environmental Effects, prepared by Think Planners (dated December 2022) also dealt with the requirements for consideration in the BC SEPP. This was further supplemented by a letter from Horticultural Management Services (dated 2 May 2024). The material provided in the Application has enabled me to ensure that the requirements of the BC SEPP.
In deciding whether to grant development consent, cl 7.4 of PLEP 2010 requires that the consent authority must have regard to a number of sustainability considerations. The Applicant has provided responses to each of the matters raised in cl 7.4 of the PLEP 2010. The material before the Court includes a number of reports addressing various aspects of sustainability, and as a result, I have had regard to the matters raised in accordance with the requirements of cl 7.4 of the PLEP 2010 in making my determination on this matter.
The parties do not raise any issues in respect to the ability to service the Site as required by cl 7.7 of the PLEP 2010. I am satisfied based on the material before the Court that servicing can be provided to the Site.

Development Consent should be granted

I have considered the jurisdictional matters raised in this Appeal and conclude that they have been met. Having been satisfied that jurisdictional threshold have been met, I have undertaken a more detailed consideration of the merits of the proposal, including the required considerations pursuant to s 4.15 of the EPA Act.
The Application has adequately addressed the characteristics of "value" in the local neighbourhood and will build on the streetscape and character elements already in existence. Any potential amenity or operational issues have been resolved through adjustments to the design of the scheme.
A caveat to the grant of Development Consent is that the proposed development should be restricted from operation on a Saturday. An appropriate adjustment has been made to Condition 73 of the proposed Development Consent in Annexure A.

Orders

The Court orders that: 1. The appeal is upheld. 2. That Development Application DA23/0013, as amended, for the construction of a Centre Based Child Care Facility with a maximum capacity of 62 children, ranging from 0 to 5 years, at 2 Coowarra Drive, St Clair, NSW, is determined by the grant of Development Consent subject to the conditions set out in Annexure A to this judgment. 3. The Exhibits, apart from Exhibits A, E, G, H, J, K, N and 8, are returned.

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: 10 January 2025

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (2)