C & J Corporation Pty Ltd v Canterbury-Bankstown Council

Land and Environment Court (NSW)|2020-08-18

Judgment

COMMISSIONER: On the corner of Clissold Parade and Browning Street, in Campsie, C & J Corporation Pty Ltd ("C & J") seek development consent for the demolition of existing structures and the construction of a 3-storey centre-based child care facility. A development application seeking the same was lodged with Canterbury-Bankstown Council ("the Council") on 6 November 2018. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act").
Following amendments made in the course of the appeal proceedings, the proposed development that is now before the Court is a 3-storey child care facility with basement car parking at 84 Clissold Parade, Campsie. It is designed with both vehicular and pedestrian entrance on Browning Street, where it has a wider frontage, but is designed to address Clissold Parade. The back portion of the building, furthest from Clissold Parade, comprises three storeys of built form. Each level also has outdoor play area adjacent to the Clissold Parade frontage, with an outdoor play area located on the ground floor between the built form and Clissold Parade, and outdoor play areas located on each of the first and second floor within large balconies projecting from the built form toward Clissold Avenue.
The proposed hours of operation are 7am to 6pm, Monday to Friday (excluding public holidays). The centre is proposed to accommodate up to 82 children, comprised of 12 children aged between 0-2, 40 children aged between 2-3 years and 30 children aged between 3-6 years.

The site and the locality

The hearing commenced with a site inspection with the parties' legal representatives and town planners present. The site is known as 84 Clissold Parade, Campsie, and is legally identified as Lot 15 in DP 4869. It is regularly shaped with a total area of 846.6m2, a frontage of 15.24m to Clissold Parade and a rear boundary of 15.375m. It also has a frontage of 56.56m to Browning Street to the east, and a western boundary of 54.539m. The site has a moderate fall of 0.75m from the rear to the street.
The site is located on the southern side of Clissold Parade and on the corner of Browning Street, with vehicular access from Browning Street.
The local built environment is characterised by a mix of single dwellings, townhouse developments and residential flat buildings. Residential flat buildings directly adjoin the site to the south and to the west, and dominate the southern side of Clissold Parade between the site and the B2 Local Centre zone further to the west. An aerial photograph of the site and surrounds is at Figure 1.

The planning controls

The site is zoned R4 - High Density Residential pursuant to the Canterbury Local Environmental Plan 2012 ("CLEP 2012"). Centre-based child care facilities are a nominated permissible use in the zone. The zone objectives, which are required to be considered in determining a development application, are as follows: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Clause 4.3 of the CLEP 2012 provides for a maximum height of 11.5m, with which the proposal complies.
Clause 4.4A(2) of the CLEP 2012 limits the FSR for non-residential development in the R4 zone to 0.75:1. The FSR, as calculated by C & J, is 0.67:1 and excludes the floor area of the outdoor play areas. The Council disputes this FSR calculation and instead says that the FSR of the proposed development is in excess of 1.2:1.
If the Council is correct in its position that the proposed development does not comply with the FSR development standard, cl 4.6 of the CLEP 2012 precludes consent from being granted unless a written request is provided that justifies the contravention of the standard. Clause 4.6 provides, at (3) and (4): (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
The State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 ("SEPP EE") applies to the proposed development. Clauses 23 and 26 provide as follows: 23 Centre-based child care facility - matters for consideration by consent authorities Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development. … 26 Centre-based child care facility - development control plans (1) A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility: (a) operational or management plans or arrangements (including hours of operation), (b) demonstrated need or demand for child care services, (c) proximity of facility to other early education and care facilities, (d) any matter relating to development for the purpose of a centre-based child care facility contained in: (i) the design principles set out in Part 2 of the Child Care Planning Guideline, or (ii) the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates). (2) This clause applies regardless of when the development control plan was made.
The effect of cl 26(1)(d) is that where there are provisions in Parts 2, 3 and 4 of the Child Care Planning Guideline ("CCPG") that address matters contained in the controls in the Canterbury Development Control Plan 2012 ("CDCP 2012"), the controls in the CDCP 2012 do not apply. The only exception to this is the words in brackets of cl 26(1)(d)(ii), which operate to prevent those parts of Part 4 of the CCPG concerning building height, side and rear setbacks or car parking rates from precluding the operation of applicable controls concerning these matters in the CDCP 2012.
The relevant provisions of the CCPG include Part 3.2, which concerns local character, streetscape and the public domain interface. Specifically, it provides the following controls with respect to compatibility with the local character, at C5: "C5 The proposed development should: • contribute to the local area by being designed in character with the locality and existing streetscape • reflect the predominant form of surrounding land uses, particularly in low density residential areas • recognise 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 • use landscaping to positively contribute to the streetscape and neighbouring amenity • integrate car parking into the building and site landscaping design in residential areas."
C9 and C10 concern front fences and retaining walls, and provide: "C9 Front fences and walls within the front setback should be constructed of visually permeable materials and treatments. Where the site is listed as a heritage item, adjacent to a heritage item or within a conservation area front fencing should be designed in accordance with local heritage provisions. C10 High solid acoustic fencing may be used when shielding the facility from noise on classified roads. The walls should be setback from the property boundary with screen landscaping of a similar height between the wall and the boundary"
Part 3.3 concerns building orientation, envelope and design. It includes the following, at C11 to C15: "Objective: To respond to the streetscape and site, while optimising solar access and opportunities for shade. C11 Orient a development on a site and design the building layout to: • ensure visual privacy and minimise potential noise and overlooking impacts on neighbours by: - facing doors and windows away from private open space, living rooms and bedrooms in adjoining residential properties - placing play equipment away from common boundaries with residential properties - locating outdoor play areas away from residential dwellings and other sensitive uses • optimise solar access to internal and external play areas • avoid overshadowing of adjoining residential properties • minimise cut and fill • ensure buildings along the street frontage define the street by facing it • ensure that where a child care facility is located above ground level, outdoor play areas are protected from wind and other climatic conditions. Objective: To ensure that the scale of the child care facility is compatible with adjoining development and the impact on adjoining buildings is minimised. C12 The following matters may be considered to minimise the impacts of the proposal on local character: • building height should be consistent with other buildings in the locality • building height should respond to the scale and character of the street • setbacks should allow for adequate privacy for neighbours and children at the proposed child care facility • setbacks should provide adequate access for building maintenance • setbacks to the street should be consistent with the existing character. Objective: To ensure that setbacks from the boundary of a child care facility are consistent with the predominant development within the immediate context. C13 Where there are no prevailing setback controls minimum setback to a classified road should be 10 metres. On other road frontages where there are existing buildings within 50 metres, the setback should be the average of the two closest buildings. Where there are no buildings within 50 metres, the same setback is required for the predominant adjoining land use. C14 On land in a residential zone, side and rear boundary setbacks should observe the prevailing setbacks required for a dwelling house. Objective: To ensure that the built form, articulation and scale of development relates to its context and buildings are well designed to contribute to an area's character. C15 The built form of the development should contribute to the character of the local area, including how it: • respects and responds to its physical context such as adjacent built form, neighbourhood character, streetscape quality and heritage • contributes to the identity of the place • retains and reinforces existing built form and vegetation where significant • considers heritage within the local neighbourhood including identified heritage items and conservation areas • responds to its natural environment including local landscape setting and climate • contributes to the identity of place."
Part 3.4 provides guidelines with respect to landscaping, and includes C18 as follows: "Objective: To provide landscape design that contributes to the streetscape and amenity. C18 Appropriate planting should be provided along the boundary integrated with fencing. Screen planting should not be included in calculations of unencumbered outdoor space. Use the existing landscape where feasible to provide a high quality landscaped area by: • reflecting and reinforcing the local context • incorporating natural features of the site, such as trees, rocky outcrops and vegetation communities into landscaping."
The CDCP 2012 contains chapter F2 concerning child care centres, which provides a number of controls. At F2.3, control C5 states that "Child care centres should be located on corner sites, where possible". At F2.8, control C7 provides that "Outdoor play areas between the front alignment of the building and the street will not be supported." F2.9 concerns landscape plan requirements, which requires boundary security fencing 1.8m high.
At F2.4, C3 states that "Child care centres are generally not supported in two (2) storey buildings", and at F2.5, C2 provides that "Child care centres located in a residential zone must be residential in external appearance and finishes and must be consistent with the nearby residential streetscape." However, I consider that these two controls concern the design of the development and therefore do not apply by virtue of cl 26(1)(d) of the SEPP EE.
There are no setback controls within the CDCP 2012 that apply to child care centres, either within chapter F2 or elsewhere. The Council argues that the setback controls from Chapter C4, which applies to residential flat buildings, should be applied to the proposed development. This is discussed further below.

The expert evidence

Expert opinion evidence on the town planning issues was given by Mr Andrew Minto, a town planner engaged by C & J, and by Ms Andrea Elias, a town planner employed by the Council.
Mr Minto's evidence is that the proposed development will not result in any adverse impacts on adjoining properties and the public domain. He considers that the design of the proposal is consistent with the desired future character of the locality, on the basis that it complies with the height and FSR development standards, has compliant front and rear setbacks, has side setbacks that are consistent with the side setbacks of development within the vicinity of the site, includes adequate landscaping that is consistent with the current character of the area, and has a front fence treatment consistent with the requirements of the CDCP 2012. He also opines that the proposed building length is acceptable in circumstances where the overall length is broken into two key building components, which make up the internal and external play areas.
Ms Elias' evidence is instead that the proposed development has inadequate deep soil landscaping, inadequate side setbacks, excessive balcony sizes and excessive building depth. Ms Elias opines that these elements make the design of the proposal visually obtrusive and out of character in the locality. In support of the Council's position on the correct calculation of the FSR, Ms Elias considers that the outdoor play areas on the ground floor, first floor and second floor should all be considered in the calculation in circumstances where they are all enclosed by a wall height of 1.8m or higher for more than 50% of their perimeters.

The floor space ratio of the proposed development

The first and second contention raised by the Council concern its assertion that the outdoor play areas should be included in the calculation of the FSR, and that therefore the proposed development does not comply with the FSR development standard.
Clause 4.5 of the CLEP 2012 sets out the definition of "floor space ratio" for the purposes of cll 4.4 and 4.4A. At (2), it states: (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.
The "gross floor area" is a defined term in the CLEP 2012, as follows: 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.
This definition has been applied numerous times by the Court. In GGD Danks Street Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1521, Commissioner O'Neill explained the chapeau to the definition of gross floor area in the following way, at [31]: "The internal face of an external wall in 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. Therefore, the sum of the floor area of each floor of a building measured from the internal face of external walls requires the floor area that is included in the GFA calculation to be internal floor space."
In each of Bright Beginnings v Bayside Council [2017] NSWLEC 1425, JK Canterbury Holdings Pty Ltd v Marrickville Council [2016] NSWLEC 1142 and Antoniou v Bayside Council [2018] NSWLEC 1584, the Court applied the exception in (i) to outdoor play areas within terraces or balconies. In Bright Beginnings v Bayside Council, this exception was applied notwithstanding that the space was "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" (at [28]). In that case, Commissioner Dickson found 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" (at [32]).

The parties' submissions

C & J submits that the interpretation of the definition should not depart from its clear language. As submitted by C & J, quoting 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 224 LGERA 301; [2017] NSWCA 191, there is not "some general principle requiring laxity or flexibility in construing delegated legislation, or statutory instruments generally" (at [45]) and "the primary focus must remain upon the text" (at [51]).
C & J submits that the plain meaning of the text in the definition of "gross floor area" should be applied in the present proceedings, and that the balconies in the present development application can be excluded from that definition for two reasons. Firstly, C & J submits that they are excluded on the basis that they are not floor area "measured from the internal face of external walls… measured at a height of 1.4 metres above the floor", and therefore don't fall within the chapeau. Secondly, C & J submits that they are excluded on the basis of the specific exemption for balconies in (i). C & J submits that the interpretation and application of the definition in this manner is consistent with the previous decisions of the Court, which ought to be followed on the basis of judicial comity.
The Council instead submits that the areas of the outdoor play areas are too large to be considered balconies within the meaning of (i), and constitute gross floor area as they are relied upon for the proposal to meet the regulatory requirements for outdoor play areas. It also submits that since the areas are enclosed by walls of greater than 1.8m for more than 50% of their perimeter and the first floor area is enclosed by a roof, they meet the definition of gross floor area. Further, the Council submits that as FSR is used by the Council to assess bulk and scale, it should include elements that add to the bulk of the proposal. The Council submits that each of the cases relied upon by C & J concern floor areas of balconies or breezeways that are much smaller in size than the balconies in the present appeal, and that the present appeal can be distinguished on that basis. Further, the Council argues that the findings of the Commissioner in JK Canterbury Holdings Pty Ltd v Marrickville Council concerning the calculation of the FSR were obiter dicta.

The outdoor play areas do not constitute gross floor area

There is no substance to the Council's submissions. The size of an area is entirely irrelevant to whether it falls within the definition of gross floor area. Further, that the Council uses the FSR to assess bulk and scale does not, somehow, permit the calculation of the FSR to bend beyond the words of the instrument to incorporate areas that the Council wishes to include in its assessment of bulk and scale. Both the Council and the Court on appeal are bound by the words of the instrument. In this instance, those words are the definition of gross floor area and the calculation of the FSR.
On a plain reading of the text of the instrument, the definition of "gross floor area" is sufficiently clear to apply it to the circumstances of the present case. I accept the submission of C & J that the Council's position requires a departure from the plain text. The Council has not submitted that the application of the plain reading leads to an absurdity of the kind described in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, such that another interpretation should be adopted by the Court. Even if that is the case that the Council intended to put to the Court, the Council has not offered a competing interpretation of the definition of "gross floor area" other than to restrict the interpretation of terraces and balconies in some unspecified manner. In circumstances where the text of the instrument is clear, where that text has been consistently applied by the Court and where an absurdity has not been established, the plain language of the instrument should be applied.
In doing so, I accept the submissions made on behalf of C & J that there are two reasons why the floor space within the outdoor play areas does not fall within the definition of gross floor area. Firstly, none of the three outdoor play areas are floor area within the internal face of external walls. On the ground floor, the external play area of 195.32m2 is outside the external walls of the building and is bounded by a 1800mm high brick fence with horizontal timber slat infill panels. I do not accept that the fence is an external wall. On the first and second floors, the external play area is bounded to the western side setback by a 1800mm high solid fence, and to the north and east frontages at Clissold Parade and Browning Street by a 1350mm high solid fence. There are also vertical aluminium slats located along the external face of the fence of the north and east frontages, which project above 1350mm. At no point are any of the west, north or east sides of the outdoor play areas enclosed by something that constitutes an external wall. Secondly, even if the two balconies were floor area within the meaning of the chapeau (which I do not consider them to be), they nonetheless clearly fall within the exception at (i) which excludes balconies "with outer walls less than 1.4 metres high", as they fall within the plain meaning of the word "balcony" and have outer walls on the north and eastern sides that are less than 1.4m high.
I therefore accept that the outdoor play areas are not gross floor area that need to be included in the calculation of the FSR of the proposed development. The FSR of the proposed development is therefore that which is calculated by C & J and supported by the evidence of Mr Minto, which is a FSR of 0.67:1. This complies with the FSR development standard. Accordingly, a cl 4.6 request is not required and I need not consider the request tendered by C & J.

Bulk, scale and setbacks

The Council contends that the proposed development is of excessive bulk and scale, on the basis that it does not meet the objectives of the FSR development standard, does not provide adequate setbacks, has inadequate deep soil landscaping, is of excessive building length, and has a lack of articulation. This is particularised in the contention (contention 3) as follows: "i. its FSR is well in excess of that of surrounding development; ii. it fails to provide adequate setbacks consistent with the existing streetscape and Part C4.3.2.3 of the DCP, specifically; (a) the inadequate setbacks offer poor building separation and contribute to the bulk of the building; (b) the fire stairs encroach within the western side setback; (c) the ramp encroaches within the setback area of the eastern side setback; (d) the encroachments in the side setbacks result in inadequate deep soil side setbacks, minimising the opportunity for landscaping which serves to soften the appearance of the building. iii. it has a building depth of approximately 40m in circumstances where Part C4.3.2.5 of the DCP permits 35m and where surrounding development does not exceed the DCP control; and iv. the lack of articulation in the building form and the materials and finishes proposed create an increased perception of bulk; and Both individually and when taken in combination, these circumstances lead to a building that is of excessive bulk and scale."
The bulk and scale of the development is raised not only as a stand-alone contention, but also in the context of the character of the streetscape and locality. My consideration of the issues with respect to the character of the streetscape and locality are considered separately.
This contention is supported by the evidence of Ms Elias, who opines that the proposed building depth, together with inadequate deep soil, inadequate side setbacks and excessive balcony sizes result in a development that has excessive bulk and scale. She opines that the building design and envelope mimics that of a residential flat building, and that therefore the controls for residential flat buildings in Part C4 of the CDCP 2012 should be utilised as a guide for the proposed building envelope. She considers that this is consistent with the objective to C13 in Part 3.3 of the CCPG, which is "To ensure that setbacks from the boundary of a child care facility are consistent with the predominant development within the immediate context."
The setback controls in Part C4, at C4.3.2.3 and C2 are that: "C2 Development must comply with the minimum setbacks as follows: (a) A minimum setback of 6m from the front and rear boundary. (b) A minimum setback of 4m from the side boundaries."
C12 allows minor building elements to project up to 1m into the minimum side setback area, including "Stair or ramp access to the ground floor".
The objectives of the setback controls are: "O1 To establish the desired spatial proportions of the street and define the street edge. O2 To limit the scale and bulk of development by retaining landscaped open space around. O3 To contribute to the natural landscape by retaining adequate space for new trees and conserving existing visually prominent trees. O4 To provide sufficient separation between buildings and adjacent land to limit the visual, environmental and likely potential amenity impacts of new development. O5 To minimise stormwater run-off by retaining deep soil areas that facilitate rainwater infiltration."
The proposed development complies with the front and rear setback controls for residential flat buildings, but does not comply with the side setback controls. The setbacks along the western side boundary range from 2.4m to 3.09m, and range from 1.6m to 2.7m along Browning Street. Basement egress stairs encroach into the western side boundary setback for a distance of around 9.5m, and the pedestrian entrance and access ramp encroach into the eastern side boundary setback for a distance of around 16.5m. Where the structures associated with the access are located, there is a nil setback.
Ms Elias opines that the zero side setbacks, the lack of landscaping and the lack of articulation in the physical building is not appropriate and inconsistent with the controls and objectives in C4.3.2.3 of the CDCP 2012.
Part C4 of the CDCP 2012 also contains controls with respect to building depth. At C2 of C4.2.2.4 the control states: "C4 The building depth may be increased to 35m in the R4 Zone provided facades incorporate deep soil courtyards that are: (a) Parallel to front or rear boundaries (or that have an orientation which is generally parallel to those boundaries) provided that the adjacent deep soil setbacks each accommodate at least three major canopy trees; or (d) Parallel to side boundaries (or have an orientation that is generally parallel to side boundaries) provided that the facades will incorporate deep soil courtyards that each have a minimum area 6m by 6m and will each accommodate at least one major canopy tree."
Ms Elias opines that the building depth, which is around 40m, contributes to the bulk and scale of the proposed development.
Ms Elias also considers the development against the objectives of the FSR development standard, which are as follows: (a) to provide effective control over the bulk of future development, (b) to protect the environmental amenity and desired future character of an area, (c) to minimise adverse environmental impacts on adjoining properties and the public domain, (d) to optimise development density within easy walk of the railway stations and commercial centres.
Ms Elias opines that the proposed development fails to meet objectives (a) and (b) due to its "inadequate deep soil, inadequate side setbacks, excessive balcony sizes and building depth" and its "form, presentation, massing and setbacks". She also considers that the proposal is contrary to objective (c) as the location of the outdoor play areas "is visually obtrusive from the public domain" and the nil setback to Browning Street contributes to "perceived visual bulk" and is "not considered to be a proportionate building envelope with respect to the site width".
Mr Minto's evidence to the contrary is that the proposed development will not result in any adverse environmental impacts on adjoining properties and the public domain, and that it is consistent with the objectives of the FSR development standard. Mr Minto notes the compliance of the proposed development with the height and FSR development standards and with the front and rear setback controls in the CDCP 2012. He opines that the proposal also has landscape treatment, side setbacks and front fence treatments that are "not inconsistent with", or comparable to, development within the immediate vicinity of the site.
Further, Mr Minto opines that the side setbacks are appropriate. He points out that Part F2 of the CDCP 2012, which contains provisions with respect to child care centres, does not contain any requirements with respect to side setbacks, but instead require a childcare centre to be located on a corner site and that the site have a minimum frontage of 15-20m. Mr Minto points out that the proposal complies with these controls. Mr Minto opines that the side setbacks are appropriate and "will not result in any unreasonable streetscape or amenity impacts upon the adjoining properties". He considers that setbacks provide adequate area for landscaping. He also opines that whilst there are encroachments into the side setback, they are by building elements that are typical of development within the vicinity of the site. This is also supported by the Statement of Environmental Effects, in which it is stated that the western side setback is sufficient to provide landscaping and visual separation, and that "the sites western boundary adjoins a driveway of the adjoining development which provides further separation".
Mr Minto also opines that the proposed building length of 40m is acceptable in circumstances where the design is broken by two building components, the built form containing the internal play area, and the balconies containing the outdoor play area. He considers that this is then complemented by a range of building materials and finishes "which enhance the aesthetic appearance of the proposal". Mr Minto also points out that the building to the south has a building length of approximately 46m.

Consideration of the bulk and scale

I do not accept the Council's position that the bulk and scale of the proposed development is excessive on the grounds set forward by it on this contention.
Firstly, I cannot accept that non-compliance with the CDCP 2012 controls for side setbacks and building depth for residential flat buildings can form a basis for refusal in circumstances where they do not apply to a childcare centre. There is no basis upon which the controls for one type of permissible use in the zone can be applied to all permissible uses in the zone. There is nothing in either Part C4, Part F2 or Part B (General Controls) of the CDCP 2012 that indicates that the controls with respect to residential flat buildings can be applied to other forms of development in the R4 zone. Nevertheless, these controls can be taken into account in considering the desired future character of the area, which is separately considered further below.
As such, there are no applicable controls for building depth to regulate bulk and scale in this way.
With respect to the side setbacks, there are no applicable controls within the CDCP 2012, which means that Part 3.2 of the CCPG at C14 applies and the side setbacks "should observe the prevailing setbacks required for a dwelling house". There is no evidence with respect to compliance of the proposed development with the setbacks required for a dwelling house. I accept the evidence of Mr Minto that the setbacks along the western side boundary (which range from 2.4m to 3.09m) and along Browning Street (which range from 1.6m to 2.7m) are adequate, and sufficient to accommodate landscaping. Further, whilst the encroachments into those setbacks result in a zero setback where the ramp and stairway are located, which is not desirable, the extent of the zero setback is limited and there are no discernible impacts either along the western side boundary (where the driveway of the adjoining property is located) or along the Browning Street frontage (where a footpath is located on the Council's land).
Secondly, I accept the evidence of Mr Minto that there is articulation in the built form, particularly by the design of the two building components comprising the built form containing the internal play area, and the balconies containing the outdoor play area.
Thirdly, there are no controls relied upon by Ms Elias to support her opinion that the proposed development provides inadequate landscaping. That is, she has not given any measure by which the landscaping can be assessed as either adequate or inadequate. The proposal includes 280.86m2 of deep soil landscaping (33%), and 283.7m2 of landscaping in total. The comparison of the proposed landscaping with the local character is considered separately further below.
Fourthly, there is no basis upon which to assess the acceptability of the bulk and scale against the objectives of the FSR development standard. There is no applicable operative provision in the CLEP 2012 or the CDCP 2012 that requires satisfaction that the proposed development is consistent with those objectives. In any event, it can be assumed that a development that complies with the FSR development standard meets the objectives of that standard. This is consistent with the decision of Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, in which his Honour stated: "The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved."
Finally, there are no actual discernible impacts caused by the bulk and scale of the development. I accept the evidence of Mr Minto that there are no adverse environmental impacts on adjoining properties or the public domain. There is nothing to support Ms Elias' opinion that the outdoor play areas are "visually obtrusive" on the public domain. On the evidence, the only view of the site from which the size of the outdoor play areas can be perceived are the "view from the sun" diagrams. This is not sufficient to demonstrate that the play areas are visually obtrusive along the street level of the public domain.
For the above reasons, none of the reasons put forward by the Council in contention 3 are a basis upon which the bulk and scale of the proposed development can be considered unacceptable. Instead, I consider that there is adequate articulation and setbacks, and the outdoor play areas are not visually obtrusive when viewed from the street level.

Consistency with the local character and streetscape

The Council contends, in contention 4, that the proposed development is not compatible with the character of the local area and streetscape. This is based on cl 23 of the SEPP EE, which requires that the Court, in exercising the functions of the consent authority, "take into consideration any applicable provisions" of the CCPG. The operative provisions of the CCPG are numbered, and headed with an objective that is sought to be achieved by the provisions. I note that there is no level of satisfaction that is required to be achieved in taking those provisions into account. As such, even if there is a provision from which the proposed development departs, I would need to consider whether that the departure is sufficient to warrant refusal.
As set out above in [15], C5 of Part 3.2 of the CCPG provides that the proposed development should "contribute to the local area by being designed in character with the locality and existing streetscape" and "reflect the predominant form of surrounding land uses, particularly in low density residential areas."
There are various elements that the Council argues make the proposed development inconsistent with the local character. These include the side setbacks, the landscaping, the building length, the size of the balconies, the location of the ground floor outdoor play area, and the proposed 1.8m high front fencing along Clissold Parade.

What is the character of the locality and streetscape?

In discussing the concept of the character of the urban environment in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191, Senior Commissioner Roseth said (at [26]): "In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character."
With respect to the site and the locality of the proposed development, there is no description of the locality or its desired future character in the CDCP 2012.
Further, despite the Council's position on this contention, Ms Elias did not give any evidence that defines the character of the locality and the existing streetscape. The only evidence concerning the same is that the zone "envisages residential character", and that residential flat buildings are the predominant development within the immediate context. At the site inspection, she gave evidence that the detached housing stock in the area will eventually be replaced with higher density development. Her written evidence describes the ways in which she considers that there is inconsistency between the proposed development and the character of the area, but she fails to define that character. In Ex 5 she conducted a streetscape analysis, but the analysis only contains photographs of development in the locality and lists their features. The analysis does not contain any definition of the character of the locality by reference to "the relationship of built form to surrounding space".
The Council submits that, given the area is in transition, compatibility with the future character is more important than the current character. This is consistent with the planning principle in Project Venture Developments v Pittwater Council, in which the Senior Commissioner stated (at [23]): "There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing."
The Council submits that the desired future character is reflected in the setback and built form controls for residential flat buildings. This is supported by the evidence of Ms Elias, who considers that the setback controls in the CDCP 2012 "facilitates in establishing the future desired character of the area".
Mr Minto opines in the joint report that: "The area surrounding the subject site is considered to be an area in transition with the areas original detached housing stock being replaced by townhouse and residential flat developments. More recently constructed developments in the vicinity of the site exist at 24-25 North Parade and 90-94 Clissold Street. Both of these developments appear to have a higher bulk and scale and presumably FSR than the proposal."
Mr Minto has also undertaken a streetscape character analysis (Ex E), which includes the following descriptions of the relationship of the built form within the local area in the executive summary: "Different forms of residential accommodation are found along Clissold Parade and Browning Street such as detached dwelling houses, multi-dwelling housing with on-grade or basement car parking, residential flat buildings and one boarding house. Detached dwellings typically exist on allotments that are lesser than 615m2 in size. The streetscape is not located within a Heritage Conservation Area, and therefore there is a mixture of modern and ageing developments. The most dominant external finish across the streetscape is face brick. Developments constructed approximately within the last 15 years are typically 3 storeys in height. Street trees are located within the road reserve, adjacent to the pedestrian pathway. The front setback of each property typically comprises of maintained lawn areas that do not support any large trees. … None of the corner allotments has their primary street frontage orientated towards Browning Street. Browning Street has secondary front setbacks that range from approximately 500mm 1o 5m, with an average of less than 2m. … The front setback on the southern side of Clissold Parade has a range between 6m - 7.5m. The proposal is considered to be consistent with the front building line of the residential development located on the southern side of Clissold Parade. The front setback on the northern side of Clissold Parade has a range between 2.85m and 6.5m."

The evidence in support of the Council's position on consistency with the local character

Ms Elias opines that the zero side setbacks where the ramp and stairs are located, and the lack of articulation in the physical building form contributes to the "commercial" appearance of the building, which is not consistent with the residential character intended for the area.
She also considers that the proposed development "fails to establish the desired spatial proportions within the street" as a result of the inadequate side setbacks, and that there is inadequate landscape treatment to soften the visual appearance of the building. Again, due to the inadequate setbacks, Ms Elias opines that the lack of separation between the boundary and the built form is "inconsistent with the rhythm of the streetscape" and creates "uncharacteristic building bulk when viewed from the street", and is therefore out of character with the local area.
Ms Elias also opines that the balcony sizes are excessive. Her evidence is that their size, together with the use of them as an outdoor play area, is visually obtrusive from the public domain. She points out that there are no buildings in the immediate vicinity of the site with balconies of this size.
Finally, she considers that the front fence height measuring 1.8m is out of character with the existing streetscape.

The evidence in support of C & J's position on consistency with the local character

Mr Minto's streetscape character analysis sets out the manner in which the proposed development is consistent with the existing locality. In particular, he considers that the setbacks proposed are consistent with the existing developments located on the corner of Clissold Parade, Browning Street, North Parade and Frederick Street.
In light of his analysis that Browning Street has secondary front setbacks that range from approximately 500mm to 5m, with an average of less than 2m, he considers that the proposed setback from Browning Street is consistent with the prevailing secondary frontage setback. Further, he opines that the eastern elevation of the proposed development is articulated and will contribute to the streetscape of Browning Street, and will sit in harmony with the residential flat building at 24-25 North Parade.
With respect to the front setback, Mr Minto considers that the proposed development is consistent with the front building line of the residential development located on the southern side of Clissold Parade, where the front setbacks range from 6m to 7.5m.
Further, he considers that the landscaping provides a range of trees and shrub plantings together with ground covers which will make a positive contribution to the landscape character of the streetscape and neighbouring properties. He opines that this will be superior to the landscaping typically found on a number of the surrounding properties.
He also considers that the outdoor play area within front setback is consistent with the CCPG, which includes at C11 of Part 3.3: "Orient a development on a site and design the building layout to: • ensure visual privacy and minimise potential noise and overlooking impacts on neighbours by: facing doors and windows away from private open space, living rooms and bedrooms in adjoining residential properties placing play equipment away from common boundaries with residential properties locating outdoor play areas away from residential dwellings and other sensitive uses • optimise solar access to internal and external play areas"
Mr Minto opines that in applying the above provisions to the subject site, this predicates the locating of the proposed outdoor play area at the front of the site to the north of the proposed building, where it is located away from interfaces with residential development and in a location that receives solar access. As such, he considers that the location of the outdoor play area within the front setback of the property is appropriate in the circumstances.
Mr Minto notes that the proposal includes the 1.8m high front fence, comprised of 1.2m solid masonry base with a 600mm high horizontal slat screen installed above. The proposed fence is to be setback 1m from the front boundary with the area in front of the fence to be landscaped. He considers that the fencing and the landscaped setback will "provide for an appropriate balance between ensuring that appropriate visual privacy and security are provided to children within the centre whilst also ensuring that the streetscape of the locality is not unreasonably impacted upon". At the site inspection, he pointed out a number of front masonry walls of similar heights, which are also included in his streetscape character analysis. This includes 24-25 North Parade, 95 Clissold Parade, 87 Clissold Parade and 80 Clissold Parade.

The proposal is in character with the locality and streetscape

Given that there are existing residential flat buildings and multi-dwelling housing developments in the locality, and that these uses are the predominant built form anticipated in the R4 zone, I consider that the character of the locality and streetscape incorporates the current built form of those developments. I accept Mr Minto's analysis and description of that existing character (recorded above at [69] and [70]). However, in other locations where detached housing stock is likely to be replaced by higher density development, the controls for residential flat buildings and multi-dwelling housing establish the predominant future character. As such, both the current character and the future character need to be taken into account in considering the matters required by C5 of Part 3.2 of the CCPG. Accordingly, a child care centre development is not inconsistent with the provisions in C5 merely by reason of it not complying with the controls concerning residential flat buildings. Further, residential flat buildings dominate the southern side of Clissold Street and comparison with the existing character along that part of Clissold Street is therefore appropriate in considering the provisions in C5.
I accept that the proposed development is largely consistent with the provisions in C5, as it is designed in character with the existing streetscape with front and rear setbacks that are compliant with the future character for residential flat buildings. I reach this view for the following reasons.
Firstly, the design is rectilinear, which is consistent with the majority of the existing residential flat buildings that front Clissold Street. The moderate articulation along the side setbacks of the proposed development is comparable to that found in those existing rectilinear residential flat buildings, particularly at 26 North Parade and 80, 86, 88, 96 and 98 Clissold Street. In that respect, I do not accept Ms Elias' evidence that the design of the built form stands in contrast with the rhythm of the street. Given the existing rectilinear form of the residential flat buildings along the southern side of Clissold Street, the built form of the proposed development is consistent with that rhythm.
Secondly, the front and rear setbacks of the proposed development are compliant with the setback controls for residential flat buildings, found in in Part C4, at C4.3.2.3 and C2 of the CDCP 2012.
Thirdly, the side setbacks are consistent with the majority of the existing residential flat buildings, particularly at 86, 88, 96 and 98 Clissold Street. The only side setbacks of the latter that exceed the side setbacks of the proposal are where driveways are within the side setback. As such, a landscaped side setback such as that proposed by the development, without a driveway running the length of the side setback, will contribute positively to the local character and streetscape, and will achieve the objectives of the setback controls for residential flat buildings to "contribute to the natural landscape by retaining adequate space for new trees and conserving existing visually prominent trees" (O3) and to "provide sufficient separation between buildings and adjacent land to limit the visual, environmental and likely potential amenity impacts of new development."
Fourthly, the encroachments into the side setbacks, although undesirable, do not cause the design to be out of character with the locality and existing streetscape. To the contrary, the existing developments at 86, 88, 96, 98, 100, 102, 76 Clissold Parade all have driveways, pathways or other encroachments into the side setbacks, some of which are driveways that extend the full length of the boundary and exclude all landscaping. In that context, the extent of the encroachments into the side setbacks by the proposal, which are limited to a length of 9.5m on the western side boundary, and a length of around 16.5m on the eastern side boundary, are minimal when compared to the surrounding development and are therefore acceptable in an assessment of compatibility with the local character.
Fifthly, I accept the evidence of Mr Minto that the landscaping provides a range of trees and shrub plantings together with ground covers which will be superior to the landscaping typically found on a number of the surrounding properties. The landscape plan shows an area of 283.7m2 of landscaping, which is far greater than the landscaping provided to the sites to the west. Further, it shows landscaping along the Browning Street frontage, which will enhance the character of the streetscape of Browning Street, which has very little landscaping at present (and where it appears, from the site inspection, that landscaping within the setback of the adjoining development to Browning Street may have been removed or poorly maintained).
Sixthly, I also consider that the building length of around 40m, although not a favourable feature of the design, is not so significant so as to cause the building to be out of character with the locality and streetscape. It is less than that of the adjoining development at 24-25 North Parade, which is 44.47m, and the perception of its length will be softened by the landscaping and the moderate articulation in the built form. Further, whilst the building will be longer than any of the residential flat buildings that currently front Clissold Parade, its length is consistent with the rectilinear form of development described above.
Seventhly, I also consider that whilst the size of the balconies are large and create a presentation to the street that is different to that of surrounding development, they do not cause the building to be out of character with the locality and streetscape. It is well established that "compatibility" does not equate to sameness: see Project Venture Developments v Pittwater Council at [22]. Similarly, to achieve consistency with the local character and streetscape the design need not precisely replicate the design of existing development. Balconies are predominant in the façade of the adjoining development at 24-25 North Parade, where solid concrete balustrades run for a large proportion of the length of the second and third storey along Browning Street. Similarly, balconies at the second and third storeys feature in the front facades of the buildings at 76 and 92 Clissold Parade. In this context, the large balconies of the proposed development are not out of character with the local character and the streetscape.
Further, there is no basis upon which the height of the front fence along Clissold Parade could be considered out of character in circumstances where it complies with the applicable controls in the CDCP 2012. In particular, at F2.9 at C1 requires that the landscape plan include "Boundary security fencing minimum 1.8m high and that is non-climbable". As such, the compliant height of the front fence is consistent with the desired character for childcare centre developments in the zone. The front fence is also setback by 1m and screened by landscaping, which will soften its appearance. It is also not out of character in an area where there are a number of front masonry walls of similar heights, including at 24-25 North Parade, 95 Clissold Parade, 87 Clissold Parade and 80 Clissold Parade.
Finally, I accept the evidence of Mr Minto that the location of the outdoor play area in the front setback is acceptable in the circumstances. The location of children playing in a front setback in a residential zone, in my view, is not an aspect of a design that could be considered as being out of character with the locality and existing streetscape.
For all of the above reasons and in the streetscape context in which the site is located, I do not accept the Council's position that the design of the proposed development is not compatible with the character of the local area and streetscape.

Outdoor play areas

The Council contends that the outdoor play areas are unsatisfactory in relation to their area, solar access and crime prevention. Ms Elias' evidence is that the outdoor play areas can be overlooked from the public domain and do not have sufficient visual privacy. She also considers that "the failure to provide the required outdoor area for each child on their associated floor of the proposed development is an inconvenient arrangement" and "is unlikely to be carried out in practice".
However, the Department of Education has provided a written Notice of Concurrence dated 5 August 2020 that confirms that the provision of the outdoor space is compliant with the required outdoor play area for the total number of children proposed by the development, consistent with the requirements of cl 108 of the Education and Care Services National Regulations. The letter states (emphasis added): "The applicant has provided plans indicating a total of 673.24m2 of actual outdoor space. The calculations are not clearly defined as unencumbered on the plans however the space provided overall is sufficient for the intended number of children. It is noted that the plans provided indicate the ground floor to accommodate a total of 36 children between the ages of 0-3. The outdoor space provided on the ground floor alone provides only 180.14m2, which provides enough space for only 25 children to be outdoor at any one time. It should be noted however that space calculations are assessed as an overall figure and overall the service provides sufficient outdoor space for the intended number of children. The Department also notes the applicant has addressed this matter by providing a statement acknowledging that the service intends to operate via a structured timetable whereby the different age groups rotate between the various spaces to ensure that space requirements are adhered to."
This structured timetabling is found in the Plan of Management that supports the development application.
I do not accept Ms Elias' opinion evidence that such a schedule is unmanageable or unachievable. Ms Elias gives that evidence as a town planner, without any details of her expertise in the provision of centre-based child care, and without any details of the basis for that opinion. The timetable is clearly set out in the Plan of Management. Such a timetable is clearly considered appropriate when having regard to the Notice of Concurrence from the Department of Education, and there is no basis put forward by the Council or Ms Elias on which it could be considered "unmanageable or unachievable".
I also do not accept there is any issue with respect to visual privacy to the ground floor, given the height of the fence and the landscaping between the footpath and the fence. I accept the evidence of Mr Minto that the design of the proposed fencing, in addition to the 1m landscaped setback in front of the fence, will provide for "an appropriate balance between ensuring that appropriate visual privacy and security are provided to children within the centre whilst also ensuring that the streetscape of the locality is not unreasonably impacted upon". Further, given the balustrade height of 1.35m around the upper level outdoor play areas and the oblique angle from which the balconies would be viewed from the street level, there is similarly no issue with respect to visual privacy of children using the upper level outdoor play areas.
In closing submissions, Mr Bonanno made a submission, on behalf of the Council, that the Plan of Management did not meet the planning principle concerning management plans in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 ("Renaldo") at [54]. However, this was not raised in the Statement of Facts and Contentions filed in the proceedings, was not supported by any evidence, and the submissions did not particularise which element or elements of the principles in Renaldo are not met by the Plan of Management. Having reviewed the Plan of Management (amended 31 July 2020), there is nothing immediately apparent that is contrary to the questions raised in Renaldo, and without evidence or articulation of what elements of the principles are not met, the Council's submission on this point must fail.
Accordingly, the outdoor play areas are acceptable, and the contention raised by the Council with respect to those areas is not established.

Outcome of the appeal

For the above reasons, none of the contentions raised by the Council are established. In carrying out the assessment of the development application against the contentions raised by the Council, the Court is required to apply the terms of the applicable environmental planning instruments and the CDCP 2012. The proposed development complies with the FSR development standard, is consistent with the built form controls in the CDCP 2012 that apply to childcare centres (other than some of those that are excluded by cl 26(1)(d) of the SEPP EE), and is compatible with the local character and streetscape given the site's context. As there are no other contentions raised by the Council, development consent should be granted subject to the conditions of consent that are agreed between the parties.
The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for the demolition of existing structures and the construction of a 3-storey centre based child care facility with basement car parking at 84 Clissold Parade, Campsie, subject to the conditions of consent in Annexure A. 3. Exhibits 1, 3, 4, B, D, H, L, O and P 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: 16 September 2020

(2017) 224 LGERA 301

(2007) 156 LGERA 446

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