Bright Beginnings v Bayside Council

The site and its context

1. The subject site is legally described as Lot 121 in DP 1366, and known as 8 Mimosa Street Bexley. It has a frontage of 51.24m and a total site area of 938.2m². The site currently contains a two storey building with basement parking comprising of a childcare centre on the ground floor and a single residence on the first floor.
2. The surrounding development is predominately low density single storey housing interspersed with low scale villa style housing and occasional two storey dwellings. The adjoining property, 10 Mimosa Street, has a recent approval for a dual occupancy redevelopment that has not been commenced.
3. A light industrial area is located along Forrest Road and some of these sites extend to the rear of the site. There are some industrial/ commercial uses extending along Mimosa Street towards Forrest Road, with a service station located on the corner of Mimosa Street and Forrest Road.

Amended Design:

1. Since the lodgement of the appeal the applicant has made two formal amendments to the proposal. The key changes to the application are listed below:

• Addition of two stacked parking spaces in the basement;
• Increase in height of the proposed acoustic fence on the boundary to 2.1m;
• Increase in outdoor play area at the ground floor by removal of existing doors and creation of a new external wall set back approximately 4.3m;
• Designation of a separate play area for 0-2 year olds;
• Reduction in the size of the upper floor front balcony;
• Provision of separate toilets for children on the upper floor;
• Provision of acoustic screens to the upper floor play areas, generally at 2 metres in height, with the eastern wall at 1.2m; and
• Re-configuration of play areas on both levels.

Planning Controls:

1. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. The following statutory controls are relevant to the assessment of the application: 1. Environmental Planning and Assessment Act 1979 (the Act) 2. Environmental Planning and Assessment Regulations 2000 (Regulations) 3. Education and Care Services National Regulations under the Education and Care Services National Law (National Regulations) 4. State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) 5. Rockdale Local Environmental Plan 2014 (LEP 2011) 6. Rockdale Development Control Plan 2014 (DCP 2011)
3. LEP 2011 is the planning instrument that applies to the whole of the Rockdale Council area. Under this Plan, the Site is zoned R2 Low Density Residential. The proposed development is a land use that is identified as being permissible with consent within this zone.
4. The consent authority must have regard to the objectives for development in the zone when determining a development application (cl. 2.3(2) LEP 2011).
5. DCP 2011 is the Development Control Plan applicable to the proposed development on the Site. The following Parts of DCP 2011 are of relevance in the assessment of this application: 1. Part 3 - Site Analysis 2. Part 4 - General Principles 3. Part 4.2 Streetscape and Site Context 4. Part 4.3 - Landscape planning and Design 5. Part 4.6 - Car parking Access and Movement 6. Part 4.7 - Site Facilities 7. Part 6.1 - Childcare Centres
6. Specifically the DCP includes a control, at cl. 6.1(3), which provides a maximum of 50 children within a child care centre in a residential zone, unless the applicant can demonstrate that a variation does not create unreasonable amenity impacts.
7. The DCP provisions are a mandatory consideration, and a focal point, of the assessment of the application. However Section 79C(3A) of the Act mandates a flexible application of the controls where the alternative solution is capable of meeting the required standards (Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151).

Expert Evidence

1. In line with the issues in dispute in the proceedings the parties engaged experts in town planning, traffic and acoustics. The experts for the applicant were: Mr Andrew Minto - town planning; Mr Stephen Gauld - acoustics; Dr Daniel Martens - traffic; The experts for the Council were: Mr Joseph Vescio - town planning; Mr Steven Cooper- acoustics; Mr Craig McLaren - traffic;
2. Joint expert reports were prepared and filed in each of the disciplines. I have read and considered those reports.

The issues

1. The fundamental issue for determination in this appeal is whether the proposed development is, as contended by the Council, an overdevelopment of the site. Relevant to consideration of that issue are the number of children proposed, and the consequent generation of demand for car parking, the addition of indoor and outdoor play areas on the upper floor of the development, and the consequent need to provide acoustic barriers; and whether those aspects of the development give rise to unacceptable impacts both on the amenity of surrounding residential properties and the residential character of the locality.
2. Subject to being satisfied on the above I will also need to consider the compliance of the proposal and the increase in child numbers with the National Regulations. Does the development rely on a variation to the floor space control?
3. There is a difference of opinion between the planning experts in relation to the application of the floor space control in LEP 2011 to the upper floor terrace.
4. Relevant to the dispute is the definition of Gross Floor Area in LEP 2011: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above. NOT IMPLEMENTED: support for w:pict - without v:imagedata
5. The area in contention is outlined below:
6. The amended plans (Exhibit J) have reduced the eastern balustrade/ acoustic barrier height below 1.4m. The applicant therefore argues that the area of the upper floor terrace (231.23 sqm) does not fall within the definition of gross floor area (GFA). The applicant maintains that the floor space ratio of the development is 0.47:1, therefore compliant with the standard of 0.5:1 in LEP 2011.
7. In the alternative the Ms Reid submits that the acoustic wall surrounding the upper floor area is not excluded by sub paragraph (i) of the definition. She argues that for all intents and purposes the outdoor play area that sits between Indoor Play Area 4 and 5 will function as an internal area and will form part of the GFA of the development. In support of her submission she relies on the decision of Morris C in Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577. In particular the assessment, by the Council expert, that was accepted by the Commissioner in the case: [35] Ms Laidlaw says that although the two ends of the breezeway are open above a height of 1000mm (at each floor above ground level) these openings are proportionally insignificant in the context of the overall area of the external walls of the building and are properly characterised as an architectural detail of the building, rather than a fundamental element of the buildings composition. She says that for breezeways not to be considered as floor area they would be open to the elements by having one full side or two full sides, enclosed by a standard balustrade and topped only by a roof that is sufficient to cover the breezeway itself, She differentiates the proposal as one where both sides are enclosed by walls exceeding 1400mm in height and only the narrow ends of the breezeway open above 1000mm.
8. It is Ms Reid's submission that applied to the facts of this case the same reasoning applies as the space is roofed with the main building roof, enclosed on two sides by a continuous full height wall, a two metre high acoustic barrier, and on the remaining side a full height wall for the length of space excluding approximately 2.8m.
9. If the Court accepts that this area of the development meets the definition of GFA the applicant would exceed the floor space control in LEP 2011, and would require a clause 4.6 variation. The applicant has submitted such a variation request as Exhibit L.

Findings

1. The decision in Landmark v Sutherland follows an earlier decision of O'Neill C in GHD Danks Pty Ltd and CR Danks Pty Ltd v Council of the City of Sydney [2015] NSWLEC1521. In this decision it was the Commissioner's view, that the corridor in question did not form part of the GFA as it was contained on either side by the external walls of the units on either side of the corridor. As the Commissioner pointed out, the external face of the wall cannot be characterised as an internal face because an external wall has a specific function that distinguishes it, that being, weatherproofing. At [31] the definition of GFA must refer to the interior surface of the wall that forms the façade or exterior of a dwelling, being the wall that weatherproofs the interior space, and cannot refer to the exterior surface of the outer wall.
2. In relation to the current proceedings the terms 'Terrace' and 'balcony' contained in the exclusion at (i) are not defined by LEP 2011. However they are defined by the on-line Macquarie Dictionary as: Terrace: an open (usually paved) area connected with a house and serving as an outdoor living area. Balcony: a balustraded or raised and railed platform projecting from the wall of a building.
3. I am satisfied in these circumstances that the covered outdoor play area at the upper floor is appropriately defined as a terrace, that the walls surrounding it are the external face of the building, and that it falls within the exclusion of GFA at (i) as it is not fully enclosed by walls of a height greater than 1.4m.
4. It is my view that this determination is not inconsistent with the findings in Landmark v Sutherland as in this case the eastern opening in the terrace is not proportionally insignificant in the context of the overall area of the external space in question, as was in that case, and is of full height.
5. As a result of this finding the development is compliant with the floor space ratio control and consideration of the applicant's clause 4.6 request is not required. Does the development give rise to unacceptable impacts on the amenity of adjoining properties?

Planning

1. The subject site is within the R2 Low Density Residential zone. The objectives of the zone relevant to the appeal are: … • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that land uses are carried out in a context and setting that minimises any impact on the character and amenity of the area.
2. Mr Vescio argues that whilst a childcare centre is a permissible use on the site, the scale of the use must be considered, and in his view curtailed, by the fundamental zoning objective. In support of his conclusion he argues that DCP 2011, at cl. 6.1.3, places a limit on capacity of childcare centres of 50 children to "strike a balance between the public and private interest of a commercial enterprise within a residential zone, and provides the scope for a centre to be able to perform as a 'good neighbour' within its residential environment" (Exhibit 3). Mr Vescio concludes that the proposal is inconsistent with the zone objectives.
3. The relevant provision of DCP 2011 is: 6.1(3). A maximum number of 50 children is permitted in a child care centre in residential zones, unless it can be demonstrated by the applicant that any additional children will not result in unreasonable impact on the amenity of adjoining properties and/or streetscape.
4. In his assessment of the application for the expansion of the centre Mr Vescio gives weight to the submissions from neighbours [refer paragraph 7]. Having considered these submissions it is Mr Vescio's conclusion that: the existing centre already performs poorly with significant external impacts on the amenity of adjoining properties and intolerable nuisance on the neighbourhood. … The physical impacts grossly exceed any reasonable person's expectations of the living amenity entitlement within a low density residential zone which includes the odours; traffic generation; on street parking impacts; noise; privacy and overshadowing and visual impacts (Exhibit 3).
5. Accordingly Mr Vescio argues that the given the application seeks an increase in the intensity of the use through a variation to Councils planning controls the variation cannot be justified by the applicant in the circumstances of this application as there is a high probability of an exacerbation of the existing significant impacts. He concludes that the development control should not be varied.
6. In the alternative Mr Minto takes the approach that if existing nuisance exists; the application provides an opportunity to address these concerns through appropriate conditions of consent, a new Plan of Management (POM) and new acoustic barriers. The relevant components of the proposal to this reasoning are:

• Provision of a new 2.1m high acoustic fence located behind the building line to both the northern and southern side boundaries;
• Provision of a 2.0m high acoustic barrier around the perimeter of the first floor outdoor play area; and
• The draft POM proposed by the applicant (Exhibit E)

1. Mr Minto's evidence is that the alteration proposed to the upper floor (to convert it to play areas for the childcare use) is acceptable given that the proposed northern and southern elevations will each be provided with a 1500mm setback from the respective side boundary which is consistent with that required by Council for a two storey building. Mr Minto notes that the proposed first floor walls (acoustic walls) will have an overall building height significantly less than the equivalent wall height of a comparable two storey building in a similar location (Exhibit 3). He concludes that, with the inclusion of the components at paragraph 40, the proposal will not result in any unreasonable amenity impacts.
2. In his oral evidence Mr Minto provided a comparison between the built form of the approved dual occupancy development at 10 Mimosa Street, adjoining the subject site. It is his assessment that the character of that development is not materially different to the presentation of the childcare centre to the street. In addition it is Mr Minto's evidence that the proposed expansion of the childcare use at 12 Mimosa has the following advantages over the replication of the adjoining dual occupancy development on the subject site: 1. It provides a greater upper level setback; 2. It has less visual impact; and 3. The active use of the site will cease at 6pm and not operate on the weekends.
3. In response to the evidence of Mr Vescio [at paragraph 36] that the development does not satisfy the zone objectives, Mr Minto argues that:

• The development is of a built form character consistent with the controls and the recent approvals of the Council;
• The proposed built form will be provided with compliant setbacks and have a height at the boundary less than provided by the Council's controls;
• The fact that a use is audible does not result in a conclusion that it is not in compliance with the DCP. If the development meets the relevant acoustic level Mr Minto argues that it achieves the minimisation of impacts.

1. The National Regulation requires that corridors and thoroughfares are to be excluded from the calculation of indoor play space provided for each child. The experts agree that applying this to the current application results in the proposal having a shortfall of indoor space for the requested 92 children. The applicant accepts that if the Court was of a mind to approve the application the centres capacity would be reduced to a total of 88 children. Given this reduction in children the centre has provided open space area in excess of the minimum (20sqm). The applicant has suggested this excess could be utilised to marginally increase the setback of the upper level play areas to the adjoining properties.

Acoustics

1. The acoustic experts retained by the parties have the following principal disagreements about the impact of the proposal: 1. What is the current background noise experienced by the adjoining properties; 2. The appropriate approach to model the additional noise generated by the proposal; and 3. What sound power level is appropriate to attribute to the different age groups of children.
2. The acoustic report (Exhibit F) prepared by Mr Gauld to support the amended application nominates a background noise level of 44 dB(A), based on logged levels from 10 Mimosa Street.
3. The experts agree that the appropriate noise target for the development is to not exceed the background noise level + 5dB(A) for the properties at 6 and 10 Mimosa Street.
4. Mr Cooper does not agree that the logged levels from 10 Mimosa Street appropriately represent the background level for the following reasons: 1. The microphone location was elevated above the appropriate height of 1.5m above ground (it was located on the roof of the shed at 10 Mimosa Street); 2. The approach taken by Mr Gauld is to exclude in the calculation an assumed level of industrial noise, but no industrial noise is observed on the site; 3. He disagrees that the noise levels at 10 Mimosa would be affected by traffic noise from Forrest Road, on the basis of the number of intervening structures that would shield the noise and, that Forrest Road is not visible from the location of the logger; 4. The report did not include any attended measurements taken to correlate with the results from the logger, therefore Mr Cooper argues that Mr Gauld could not verify that the children were indoors at the times he has assumed for his readings; 5. To determine background noise levels varied locations within the site should be utilised to normalise the logger results; 6. The varied assessment locations utilised in Annexure C of the joint report utilise the same background noise level as that determined at 10 Mimosa Street. Mr Cooper's evidence is that this would approach would not be representative of the actual background noise levels at these locations.
5. In the alternative Mr Gauld's evidence refers to the Section 3.1 of the Environmental Protection Authorities publication NSW Industrial Noise Policy. The policy states that the background noise level is by definition the noise that is present at the time of the noise assessment and without the subject development operating (Exhibit 8). It is Mr Gauld's evidence that it is not possible to measure the background noise levels adjacent the site during the week without the childcare centre operating. Therefore his approach was to make some assumptions which is detailed in the following extract from his 29 June 2017 report: The noise logger at 10 Mimosa Street was placed on the roof of a small shed in the backyard. … In appendix B1, the pattern of noise levels for both the Leq and L90 on each weekday is very different to the pattern of noise on the weekend. This is due to the difference in noise levels created by traffic, the childcare centre and industry directly behind 8 and 10 Mimosa Street on weekdays, when compared to weekends. There are times in the middle of each weekday when the noise level drops significantly. These times correspond to the middle of the day when the children are inside during lunch and quiet time. The windows and doors of the child care centre are of heavy double glazed construction and the noise from the children would be inaudible at 10 Mimosa when the windows and doors are closed.
6. Mr Gauld concludes that the logger readings taken from 10 Mimosa Street between 12 and 2pm is representative of the background noise level. In his analysis he contrasts these results with those logged in the secondary location at 19 Mimosa Avenue (further away from both the centre and Forrest Road). This locations results are on average 4bB(A) lower than 10 Mimosa Avenue. His conclusion of the comparison is as follows: … it is clear that the rating background noise level at 10 Mimosa Street Bexley is higher than at 19 Mimosa Street Bexley. Given the location is closer to the Industrial area, it is very likely that the industrial noise, or increased traffic is the reason for this increase.
7. As such Mr Gauld utilises the background noise levels of 44dB(A) at 10 Mimosa Street Bexley and 40 dB(A) at 19 Mimosa Street Bexley in his assessment.
8. Both experts have considered the logged results of the existing operations. Mr Cooper's evidence is as follows: With the benefit of the logger data that has been provided in relation to questions about the ambient background levels one is able to examine the peaks that occur in the time graphs for 10AM - 11AM and 3 PM - 4 PM each day, that from the plan of management that has been submitted with the amended application would suggest that there is "outdoor structured play" by groups of children (noting that there is no outdoor free play appearing in the program) Utilising the results for Wednesday 7th October, Thursday 8th October, Friday 9th October, Monday 12th October and Tuesday 13th October 2015 indicates on a one hour LAeq basis levels from 59 to 64 dB(A). On a 15 minute basis for the same one hour periods the graph reveals LAeq levels between 62 and 68 dB(A). On the basis of such levels recorded at logger location A I formed the view that the operation of the existing childcare centre is giving rise to a significant breach of the permitted noise levels from children activities being significantly greater than background + 5dB(A). (Exhibit 8)
9. In the alternative Mr Gauld argues that analysis of the noise logger results identifies that there are other time periods of increased background noise, outside the operation of the centre, operation, such as during the late evening (9-11 pm on 7 October 2015). It is his evidence that the Leq 15min during this time ranges between 60 to 69 dBA which is created by something other than the child care centre. Similarly the Leq 15min between 6-7am on Monday 12 October ranges from 62 to 66 dB(A). Mr Gauld concludes that it is inappropriate to utilise unattended data to conclude noncompliance of the existing operation.
10. The experts are also in disagreement as to the approach to the determination of the appropriate sound power levels to model the proposal. The contention between the experts is both the choice of sound power level that is appropriate to represent the use, as well as the method of determining the reference points for the noise source.
11. Mr Gauld has approached the task of determining the appropriate sound power levels by firstly utilising sound power levels established by his firm at different childcare centres in the past. He has then verified this sound power level data by attending the childcare centre at 8 Mimosa Street to measure the noise emission from children in a number of 'normal play situations'. These scenarios, and their sound power levels are as follows: (Exhibit M)
12. From these scenarios Mr Gauld has utilised the following Leq Sound Power Levels in his assessment: 1. • 10 Children, 0 to 2 years: 78dB(A) 2. • 10 Children, 2 to 3 years: 83dB(A) 3. • 10 Children, 3 to 6 years: 84dB(A)
13. Mr Cooper's evidence is that the methodology utilised by Mr Gauld to determine the sound power levels is not preferred for the following reasons: 1. There is a conflict between Mr Gauld's single measurement for active play (Scenario 3) and the sound power level for the 3-6 year age group utilised in the assessment. It is Mr Cooper's evidence that the higher level should be utilised to more appropriately model the variability and represent the 'worse case scenario'. 2. Mr Gauld's method of obtaining the reading of the sound power levels is at a distance of between 4-6m from the acoustic centre of the group. This is in contrast to Mr Cooper's methodology of moving throughout the area whilst taking the reading to obtain a spatial average sound level of the area. It is Mr Cooper's evidence that this is more accurate, and more widely utilised, in a circumstance where a noise source is not stationary, such as children at play.
14. Mr Cooper's evidence is that the appropriate approach is to utilise the Association of Australian Acoustical Consultants (AAAC) sound power levels in their Guideline for Child Care Centre Acoustic Assessment, 2010. His reasoning is twofold: these figures have been utilised in a number of proceedings before the Court by a range of acoustic experts; and they are more likely to represent the noise levels generated by 'free play', rather than the structured play examples modelled by Mr Gauld. In the joint report Mr Cooper notes that his measurements have consistently found levels for outdoor play in the 2-3 and 3-6 year old children are towards the upper range of the AAAC ranges.
15. If the AAAC ranges were utilised the following Leq Sound Power Levels would apply:

• 10 Children, 0 to 2 years: 77 - 80 dB(A)
• 10 Children, 2 to 3 years: 83 - 87 dB(A)
• 10 Children, 3 to 6 years: 84 - 90 dB(A) NOT IMPLEMENTED: support for w:pict - without v:imagedata

1. The source locations modelled for noise assessment are identified below, labelled A through D:
2. No assessment was undertaken for children playing in the upper level uncovered outdoor play areas, identified by the dashed box above. A supplementary report was prepared by the Acoustic experts (Exhibit 9). As part of the supplementary report, at Appendix 2, Mr Cooper prepared estimates of the acoustic impact of four groups of five children distributed across the upper terrace (within the dashed box), with the proposed 2m high acoustic barrier. The table indicates a cumulative contribution of this scenario of 49dB(A).
3. In the supplementary report the experts provided the following Utilising the background noise level of 44 dB(A) with the upper range of sound power levels provided by the AAAC results in the following noise controls being required by the development: • 2.5m high boundary fence on the northern boundary from gridline B shown on the proposed ground floor plan to the rear of the site. • 2.8m high boundary fence on the southern boundary from gridline D shown on the proposed ground floor plan to the rear of the site. • 2.8m high fences on the northern side of the first floor outdoor play area • 2.8m high fences on the southern side of the first floor outdoor play area • 1.2 m high fences on the eastern end of the first floor outdoor play areas • No more than 20 children (aged 2-5 years) allowed outdoors at any time. Utilising the background noise level of 40 dB(A) with the upper range of sound power levels provided by the AAAC results in the following noise controls being required by the development: • 3m high boundary fence on the northern boundary from gridline B to E shown on the plan. • 3.5m high boundary fence on the northern boundary from gridline E to the rear of the site. • 3.5m high boundary fence on the southern boundary from gridline D shown on the plan to the rear of the site. • 4m high fences on the northern side of the first floor outdoor play area • 2.8m high fences on the southern side of the first floor outdoor play area • 2 m high fences on the eastern end of the first floor outdoor play areas • No more than 20 children (aged 2-5 years) allowed outdoors at any time.

Traffic

1. As a result of their joint conference the traffic experts agree that the proposal should be amended to incorporate the following. These amendments are agreed by the applicant, and incorporated in the agreed conditions. • The existing nib wall located on the basement entry ramp is to be removed to improve sight lines and accessibility with respect to compliant vehicular passing on the existing ramp; • The internal (secondary) roller door shutter located midway within the car park that separates staff and visitor parking areas is to be removed. A sign is to be erected stating "Staff parking only ahead". • The visitor parking bays, except for the disabled parking bay, are to be managed by signage on the wall (and in the information package to parents) that these spaces are to operate as "Rear to wall only - 10 minute maximum". • The disabled space is to be managed by signage on the wall (and in the information package to parents) that this bay is to operate as "Disabled space only". (Exhibit 4)
2. To address the contentions in relation to traffic and parking safety the experts agree: • A traffic safety management action plan should be prepared as a condition of consent. The plan should include: i. A parent / carer education induction program that describes the basement car park and how it is to be used. ii. A description of street safety requirements, including where not to park, and a list of traffic hazards and how to avoid these. • The basement car park is to be line marked to indicate pedestrian footways in front of visitor parking bays and the disabled parking space, and connect to the lift well. • A condition requiring that a formal road safety audit be undertaken by an RMS accredited Level 3 Road Safety Auditor (RSA) of the workability of the PoM with regard to addressing parent driving behaviour and the operation of the car park, on-street parking and driver sight lines upon exit from the driveway.
3. The traffic experts also agree that a dynamic parking guidance system should be installed to allow users to be advised on the number of available spaces in the basement.
4. The experts disagree whether the provision of additional spaces in the basement car park, via a vertical car stacker or tandem parking, is acceptable; and whether the current preference of staff and users of the centre for on street parking is likely to continue, and is able to be accommodated within Mimosa Street following expansion of the centre.
5. Dr Martens' evidence is that there are three feasible alternatives to accommodate the 13 spaces required by DCP 2011. They are: 1. Option 1 - In the basement utilise the existing spaces for 8 staff and 2 visitors. The remaining visitors will use either the existing 15 minute space or other available nearby street parking in Mimosa Street. 2. Option 2 - In the basement, utilise the furthest 6 existing spaces for staff, provide 2 additional stacked spaces for staff at the end of the parking isle (i.e. 8 staff in basement), provide 4 visitor spaces in the existing basement spaces. The remaining 2 visitors will use either the existing 15 minute space or other available nearby street parking in Mimosa Street. This is the preferred solution (drawn as Option A in Appendix C). 3. Option 3 - In the basement utilise the furthest 6 existing spaces for staff, provide 2 additional stacked spaces for staff as car stackers (ie. 8 staff in basement), provide 4 visitor spaces in the existing basement spaces. The remaining 2 visitors will use either the existing 15 minute space or other available nearby street parking in Mimosa Street (drawn as Option B in Appendix C). There is adequate clearance available for a car stacker system, noting that there are numerous available design options available for car stacker systems. (Exhibit 4).
6. Dr Martens evidence includes a drawing of the basement car park produced by his office from onsite measurements. His oral evidence was that the car stacker proposed in the joint report is capable of being accommodated in the existing basement. His evidence is that the provision of stacked parking for staff is equally acceptable and can be managed with a cooperative approach from staff at the centre.
7. Dr Martens evidence is that the current usage of the basement parking or on street parking at mean daily peak is six cars. Therefore his conclusion is that with the projected increase in numbers to 92 children, the demand would be 10 vehicles parked either in the street or the basement, which is less than the DCP rate of 13 vehicles (Exhibit 4).
8. The comparative occupancy rates between the basement, the 15 min on street spaces and Mimosa Street were assessed within Dr Martens Carpark and Traffic Management Assessment (Exhibit G). Within this report Table 2 concludes that on average the car parking capacity is as follows: 1. AM Peak: 59% Mimosa Street; 120% 15min drop off zone, and 24% basement visitor spaces 2. PM Peak: 61% Mimosa Street; 160% 15min drop off zone, and 36% basement visitor spaces
9. At both the AM and PM peak the demand for short term parking across the front of the site exceeds the capacity, whilst the basement is significantly underutilised. This accords with the submission made to the Court from the adjoining residents.
10. The Matrix Traffic and Transport Data report (Exhibit G) identifies that the peak AM/PM arrival periods are between 9.30-9.50AM and 4.25-4.45PM. The report states: Results indicate that although the 15-minute drop off zone may at times be oversaturated due to situations where 2 cars are parked in the single space, there are still spare parking capacities along Mimosa Street and in the basement car park to substitute for this.
11. In the alternative Mr McLaren evidence is that the DCP parking rate is comparatively low and that the applicant should, in the first instance provide for the parking demand generated by their use on site.
12. Mr McLaren argues that from the parking survey undertaken only the spaces available on the same side of the street and in proximity to the centre should be relied on, therefore three spaces by reference to Exhibit G, in addition to the current short term space directly in front of the centre. Mr McLaren accepted in oral evidence that it was appropriate to include the short term parking across the front of the site as being utilised by the centre. It is his evidence therefore that the remaining shortfall of parking would be required to be accommodated on the street.
13. In relation to the options proposed by Dr Martens to accommodate addition vehicles in the basement [refer paragraph 67] Mr McLaren's evidence is that the option of the car stacker is the preferred option, but not supported on the following grounds: 1. Lack of detail provided by the applicant to determine if the stacker can be accommodated in the existing basement. Mr McLaren's evidence is that as built drawings of the basement should be provided to ensure that it can be installed within the existing constraints and clearances; and 2. That the reduced convenience of the car stacker will impact the usage of the stacker by staff who may continue to preference on street parking.
14. Both experts provided evidence to the Court in relation to the parking usage by clients and staff of the existing centre. The Matrix Traffic and Transport Data report (Exhibit G) identifies the following minimum capacity on the eastern side of Mimosa Street between Forrest Road and the roundabout with Downey Street: 1. 12 spaces in AM peak 2. 9 spaces in PM peak It is Dr Martens evidence that Mimosa Street has adequate capacity for the proposed development.
15. In response to Councils contentions regarding the low usage of onsite parking Dr Martens undertook a survey of how staff and users arrived at the centre and where they parked. The results are summarised as: AM Peak

• 27% of arrivals walked to the centre;
• 26% of arrivals parked in the short term parking along the site frontage;
• 8% parked within the basement parking;
• 39% utilised other on street parking. PM Peak
• 29% of departures walked from the centre;
• 23% of departures parked in the short term parking along the site frontage;
• 9% parked within the basement parking;
• 39% utilised other on street parking.

1. Mr McLaren also undertook analysis of the parking behaviour of the users of the centre through monitoring of the site via video over three weekdays. His data (Annexure A, Exhibit 4) details the maximum occupation of the basement car park as four vehicles during either peak time, with a lower occupancy at other times.
2. In response to the evidence and submissions of the objectors Mr McLaren also observed and recorded the instances of parking across the centre driveway whilst waiting for the short term parking along the site frontage to be available. Over the three days the percentage of illegal parking to the total parking observed was recorded as 16.67%.

Can the impacts be reasonably managed?

1. In addition to the provision of new acoustic barriers, amendments to the basement and the provision of dynamic signage, the applicant seeks to manage any impacts by the centre operating in accordance with a plan of management (Exhibit E).
2. The approach to consideration of whether a plan of management (POM) is appropriate for a particular use and situation is outlined in the form of the questions posed in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 at [54], as revised in Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 at [72]: 1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 6. Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent? 7. Does the Management Plan contain complaint management procedures? 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?
3. Council argues that the POM is reactive to impacts, rather than preventative and provides no complaint management system. In response to the residents submissions the Council seeks the addition of a staff person outside to supervise the drop off and pick up at the AM and PM peak.
4. It was Mr Minto's oral evidence that the applicant proposes to address many of the issues raised by the residents, such as blocking of driveways, through the "family agreement form". This would incorporate and encouragement of the parents to utilise the basement for drop off and pick up.
5. The POM tendered incorporates daily programs for each age group that demonstrates that the limit required by the acoustic evidence that the total number of children playing outside, older than 2 years of age, must be limited to 20.
6. The draft conditions of consent requires the draft POM (Exhibit E) to be amended to specify all required staff on site including primary carers, kitchen staff and administration staff and reflect all conditions of development consent and be consistent with the recommendations of the acoustic and traffic experts, including identification of the of the number of staff required for supervision of outdoor activities of learning, structured play and free play to accord with the acoustic design targets. (Exhibit N)

Submissions

1. Ms Reid submits that by virtue of the impacts that arise from the application it is not consistent with the zone objectives [refer paragraph 35]. In particular she argues it is in consistent with the requirement to ensure that land uses are carried out in a context and setting that minimises and impact on the character and amenity of the area. It is her submission that the Council's control that seeks to limit childcare centres to 50 children reflects the intent of the zone objectives, and has already applied flexibility to the current approval for 57 children.
2. Ms Reid notes that the residents [refer paragraph 7] indicate that the development its direct impacts and the current pattern of behaviour of its customers and are unacceptable to them. She submits that the Court should give weight to this evidence and the likely exacerbation of these impacts with the increase in children in determining the application. In support of her submission she relies on the decision of Preston CJ in Jonah Pty Ltd v Pittwater Council [2006]NSWLEC 99 at [37-38] which states: [37] The above conclusion that mere unlawfulness of past use is not a relevant factor does not mean, however, that past use - without any consideration of its unlawfulness- cannot ever be relevant. [38] For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features such as the past use, secondly, the acceptability of the likely impacts and thirdly, if impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful.
3. It is Ms Reid's submission that the reasoning of the above case applies to the pattern of behaviour of parents who preference on street parking over utilisation of the basement parking as well as the consideration of the cumulative impacts arising from the childcare use.
4. Further Ms Reid submits that in contrast to a more typical use of land in residential areas the child care centre occupies the full extent of the site for the duration of the operating hours. It is her submission that this intensity of the use should be given weight in the Court's determination of the acceptability of the application. On the basis of the evidence from her experts Ms Reid concludes that the development borrows from the public amenity to further the commercial development of the site, and that on the basis the development gives rise to unacceptable impacts it should be refused.
5. Ms Reid argues that the reliance on dynamic traffic signage and stack parking is a further indication that the development proposed exceeds the capacity of the site. It is her submission that the evidence of Mr McLaren makes it clear that parents currently over utilise the short term parking, and the evidence lacks detail as the how the applicant will address this. Ms Reid submits that the application fails to meet the planning principal in Renaldo Plus 3 Pty Ltd v Hurstville City Council as it requires people to act in a manner that would be unlikely, it requires compliance with it for the impacts to be reasonable and given the lack of detail it is unclear how parents know of its requirements.
6. Mr Galasso's submission is that the development is an intensification of the existing childcare use, which through the evidence should be amended to a total of 88 children. He submits that the proposal is compliant with the Council's built form controls (Height and FSR) and results in an overall reduction in floor space. In response to the submission from Ms Reid that the development is not consistent with the zone objectives it is Mr Galasso's submission that the zone objectives are required to be given regard, not to be satisfied and that the application does seek to minimise its impacts through the ameliorative measures proposed.
7. Mr Galasso was critical of Mr Cooper for providing his critique of the acoustic modelling of proposal late in the proceedings and for providing no alternative logged results for background levels. Mr Cooper's oral evidence was that he saw his role as assessment, and in his opinion the onus was on the applicant to the reasonableness of their proposal and to quantify an impacts that arise from it. Mr Galasso also submits that the Court should place less weight on the evidence of Mr Cooper as he had not attended the site prior to the joint conferencing process.
8. It is Mr Galasso's submission that if the development is approved, the installation of the acoustic barriers will result in an improved outcome for the adjoining residents due to their noise attenuation. In terms of the differing evidence of the experts in relation to the sound power levels he submits that the sound power levels measured at the childcare centre in question should be preferred over levels that are a generalised standard. Mr Galasso argues that the evidence demonstrates that twenty children can practically and effectively be managed on the site for outdoor play.
9. In relation to the remaining objections from residents Mr Galasso submits that: 1. The installation of the dynamic signage, and the widening of the entry to the basement, will improve utilisation of the basement car parking; 2. Given that the there is another childcare centre in the street the applicant does not accept that any street litter arises from the subject centre; 3. The issue raised by the residents of the weekend placement of bins on the street has been resolved by the transition to a commercial waste contractor; 4. The POM includes a complaints management system and a complaints log that will provide an adequate mechanism to address any other impacts.

Consideration

1. I accept the evidence of Mr Vescio, detailed at paragraph 39, and his conclusion that a variation to Council's development control that limits a child care centre in a residential area to 50 children is not warranted. I find that the variation is not adequately justified by the applicant and on the evidence there is a high probability of amenity impacts on the area. I am not satisfied that the ameliorative measures proposed by the applicant are sufficient to warrant flexibility (s79C(3A) of the Act).
2. I accept the submission of Ms Reid that it is appropriate to consider the experience of the current childcare operations in evaluating the likely impacts of the requested intensification of use for which consent is sought. It is clear from the resident's submissions that they experience intrusive impacts from the current operations. In considering this application I have given weight to their evidence on the following basis: 1. The evidence from the residents correlates with my own observations during the onsite view. 1. Preference for on-street Parking: During the hearing of oral evidence from objectors, members of the childcare centre staff utilised the on street parking for deliveries, in preference to the basement car parking. This behaviour was also observed by parents who arrived to the centre during the same period to drop off their children. This aligns with the evidence of the residents and the Council experts that the basement parking is underutilised and on street parking is preferred by the centre users. 2. Overflow of rubbish and items from the centre: during the onsite view of the neighbours adjoining property there was clear evidence of an accumulation of toys and other items that the resident indicated had originated from the centre. Their location adjacent the common boundary gives credence to this evidence. 1. I accept the evidence of Mr Cooper that it is not unreasonable to consider that the noise recorded at the logger on 10 Mimosa Street includes the noise of the current operations (Exhibit 8), impacting the establishment of the background noise level. The applicant has not undertaken measurements to assess noise generated by the current childcare centre and whether it complies with the existing consent, which requires it to operate in accordance with the then relevant acoustic assessment (Condition 51, Exhibit 7). Mr Cooper's assessment of the data from the logger at 10 Mimosa [discussed at paragraph 57] indicates the existing operations may be contributing to a noise level between 10-11AM and 3-4PM of 59-64 dB(A) on a one hour Leq basis. I accept analysis of the logger data, is a relevant consideration to the amenity impacts notwithstanding the evidence of Mr Gauld that data from an unattended logger should not be utilised to establish a breach. The purpose of the logger data is not for enforcement but to correlate with the evidence of the residents and as an input into the assessment the potential impact of the proposal on their amenity.
3. I accept the evidence of Mr Cooper that the determination of the background level by Mr Gauld in the applicants acoustic assessment is uncertain for the reasons provided at paragraph 48.
4. In the supplementary report (Exhibit 9) the acoustic experts agree that the consequence of adopting a lower background noise level for the residential properties of 6 & 10 Mimosa Street will be to require a greater degree of noise attenuation to achieve the criterion of background + 5dB(A) or 45dB(A).
5. Given the disagreement between the experts and the evidence of the neighbours I find it appropriate to adopt the more conservative background noise level (40 dB(A)), thus the noise criterion for the development is 45dB(A).
6. Based on the acoustic evidence of Mr Gauld utilising the background noise level of 40 dB(A) in his model results in the following noise controls being required by the development: • 2.5m high boundary fence on the northern boundary from gridline B shown on the proposed ground floor plan to the rear of the site. • 2.5m high boundary fence on the southern boundary from gridline D shown on the proposed ground floor plan to the rear of the site. • 2.5m high fences on the northern side of the first floor outdoor play area • 2.0m high fences on the southern side of the first floor outdoor play area • 1.2 m high fences on the eastern end of the first floor outdoor play areas • No more than 20 children (aged 2-5 years) allowed outdoors at any time.
7. In relation to the competing evidence on sound power levels I accept the evidence of Mr Cooper that the Acoustic assessment prepared by Mr Gauld does not represent the noise impact arising from the centre. My reasoning in preferring Mr Cooper's evidence is as follows: 1. The locations modelled for outdoor play exclude the majority of the upper deck area. This area represents the largest outdoor area for children to play. The evidence of Mr Cooper is that the predicted noise level at the receivers is higher from these locations than the locations modelled by Mr Gauld (Appendix Exhibit 9). 2. I accept Mr Cooper's criticism that the modelled scenario 3 (refer paragraph 55) is affected by the small number of children in active play and that the 84dB(A) utilised is at the lower range of values and is exceeded by the measured result of scenario 3 of 85dB(A).
8. As a result of the preceding I conclude that the acoustic impacts of the development as proposed are uncertain as the methodology preferred has not been utilised in the assessment before the Court. If the worst case combination of the background noise level of 40 dB(A) and the higher sound power levels is utilised it results in the requirement for acoustic barriers of up to 4m adjacent the boundary on the upper floor terrace (Exhibit 9). Such a building form is inappropriate in a low density residential zone [refer paragraph 62].
9. I accept the evidence of Dr Martens that a car stacker can be appropriately utilised to increase the capacity for staff parking within the existing basement.
10. I accept the evidence of the experts that the basement car parking in underutilised by parents and carers. I am not satisfied that the proposal, including the provision of dynamic signage, will affect a changes in this preference. I am satisfied that on the basis of the evidence before the Court that it is likely at least 39% of the parking generated from the increased capacity of the centre will be accommodated within Mimosa Street. In addition a further percentage of parents and carers will seek to make use of the already over utilised short term drop off parking [refer paragraph 72]. This overflow of impacts from the development into the public domain arises from the development seeking a variation to Council's development controls.
11. The Court has established planning principles to assist when making planning decisions where policies are expressed in qualitative terms and allow for more than one interpretation. The objectives of the R2 zone, are such terms. The relevant planning principle for the assessing amenity impact on neighbouring properties is found in Davies v Penrith City Council [2013] NSWLEC 1141, extracted below: Criteria for assessing impact on neighbouring properties The following questions are relevant to the assessment of impacts on neighbouring properties: •How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? •How reasonable is the proposal causing the impact? •How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? •Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? •Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?
12. Applying these principles in relation to the potential impacts of the proposal, and reviewing the analysis of the experts, leads to the following conclusions: 1. I am satisfied that the proposal will detrimentally impact the amenity of the residents at 10 Mimosa Street and 6 Mimosa Avenue. 2. I find that the proposal causing the impact is unreasonable and provides insufficient justification to warrant the variation of Councils control of 50 children in this instance;
13. I agree with the Council's submission that the POM is inconsistent with the planning principles in Renaldo Plus 3 Pty Ltd v Hurstville City Council and is insufficient to ameliorate or manage the impacts that arise from the development.
14. I find that the development as proposed, or amended to a capacity of 88 children, is antipathetic to the objectives of the zone to ensure land uses are carried out in a context and setting that minimises any impacts on the amenity of the area.
15. For the reasons in the preceding paragraphs, I am satisfied that the proposed works have an unacceptable impact on the built environment in the locality (s79C(1)(b)) and the development warrants refusal.

Costs

1. Section 97B of the Act relevantly provides: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application.
2. Prior to the commencement of the hearing, the applicant sought and was granted leave to rely on amended plans (Exhibit A) with no order for costs under s 97B of the Act. At the commencement of the proceedings leave was granted for the applicant to rely on a further amended set of plans that seeks to address the issues and contentions raised by the Council and through the expert conferencing process.
3. In Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 the Senior Commissioner pointed out that for Section 97B to be of effect, two steps are necessary: Firstly, that the Court allows the applicant to file an amended development application. Secondly, that the amended development application not constitute 'a minor amendment'.
4. The decision Pepper, J in Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 [42] articulates the principles that may assist in determining whether amendments are minor, as follows: (a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]).
5. Since the Court provided leave to the applicant for amended plans, a number of design changes that have been made to the plans. These include the following 1. Reduction in the height of the eastern wall enclosing the first floor play area to 1.2m 2. Correction to the Southern elevations in response to evidence from Mr Vescio 3. Amendments to the outdoor play area calculations to correct an error 4. Provision of existing shadow diagrams
6. In Marinkovic v Rockdale City Council [2007] NSWLEC 71 the CJ considered at [22] the reasonableness of amendments by an applicant during a class 1 proceeding and states: 22 There should be a capacity for an applicant in class 1 proceedings before the Court to amend its application to respond to evidence, including evidence of a court appointed expert, and to address concerns of the court that is hearing the appeal. A respondent council should expect that an applicant might need to respond in this way. That is to say, such amendments should be seen to be part of the usual process of conducting a class 1 appeal in this Court. The mere making of an amendment is not by itself a circumstance that always makes it fair and reasonable to make an order for costs. 23 Of course, there must be some limit placed upon this capacity to respond to evidence and to the Court's concerns by means of an amendment.
7. In these proceedings I find that the amendments proposed by the applicant are minor and are consistent with what is stated in Marinkovic v Rockdale City Council at [22] as being part of the Class 1 appeal process and as such I propose no order as to costs.

Orders:

1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. No order as to costs; 3. The appeal is dismissed; 4. Development application DA/243/2016 for alterations and additions to an existing two storey building to accommodate an expanded childcare centre with capacity of 92 children at 8 Mimosa Street Bexley is refused; 5. The exhibits are returned with the exception of exhibits 1 and J. ……………. D M Dickson Commissioner of the Court

Amendments 05 September 2017 - Paragraph 95 deleted - extract of Davies v Penrith City Council [2013] NSWLEC 1141 repeated in judgment. 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: 05 September 2017