Creative Drafting Services v City of Parramatta Council

Concurrence requirements of the Regulatory Authority

The Council's evidence and submissions

1. As previously indicated, whilst there is no jurisdictional impediment to the Court granting consent and exercising the concurrence powers of the Regulatory Authority (unlike the Council which does not have this power and notwithstanding the Department had refused such concurrence), the Council argued that, on merit, the Court ought not exercise that power as there were good merit reasons why the Department refused to grant concurrence and those reasons remained relevant.
2. In terms of the first reason given by the Department, being current vacancies in child care centres 'within surrounding suburbs', the applicant relied on a Supply and Demand Analysis prepared to address this concern (Exhibit P). However, that analysis only examined vacancies within the Silverwater postcode of 2128, not within surrounding suburbs as the Department referenced.
3. The Council had undertaken research through the Internet which demonstrated that there were 25 child care centres within a 2.9km radius, 16 of which had vacancies, showing a serious lack of demand in the broader locality as identified by the Department. Therefore, the 'ill-fitting' location proposed for the child care centre was not justified on the basis of demand. This of itself ought to be sufficient reason to refuse the application particularly in circumstances where the proposed site is so highly constrained as to have unacceptable and significant impacts on its occupant children.
4. In terms of the second reason given by the Department, the CCP Guideline allows for departure from the required amount of outdoor play area being provided, to be substituted with indoor simulated space, only where there are 'exceptional circumstances'. Establishing these exceptional circumstances was a threshold issue. Yet the Court had not been advised by the applicant what it says those exceptional circumstances are. The Court would therefore draw its own conclusion that there are no such exceptional circumstances.
5. For example, simply because an adequate outdoor play area cannot be provided due to existing site constraints, and simulated space is provided instead, that should not automatically be considered as comprising exceptional circumstances. Otherwise every non-compliant child care centre could meet the test of 'exceptional circumstances' making such circumstances meaningless. The application should fail on this ground in the absence of any exceptional circumstances being demonstrated.
6. The third reason was air quality, dealt with extensively in evidence elsewhere, demonstrating this was, and remains, a basis for refusal. Further, the applicant has not engaged in any site reconfiguration or any skilful design to address the Department's concern in this regard, rather only retrofitting an existing building.
7. Mr McDonald, in the planners' Joint Report, stated that the conversion of the existing commercial/light industrial building, its location on the site, and the site itself, significantly constrain the ability to accommodate a child care centre or to introduce mitigation measures to address the 'hostile environment' of Silverwater Road (Exhibit 4, p9). However, those constraints themselves could not comprise exceptional circumstances simply because the applicant proposes retrofitting rather than redesigning. On the contrary, the inability to comply with the outdoor play area is a symptom of a greater problem, namely that the retrofitting of a building in this location for such a sensitive use is totally inappropriate.
8. Finally, in relation to the requirements for views of trees, this is with the objective that there is, at the very least, an ability to have a green outlook, including to trees. In this application, any green outlook including trees is limited (at best) to virtually non-existent (at worst) and would be potentially made even worse if later measures to address acoustic impacts are imposed following construction, an issue raised when dealing with acoustic compliance.
9. In this regard, there are no street trees within either the Carnarvon Street or Silverwater Road frontages of the site and only one small tree on the western side of Silverwater Road across 6 lanes of traffic. There is one further street tree on the northern side of Carnarvon Street visible in the foreground of the industrial building to the north to which there may be angled views from the simulated outdoor play area on the first floor, and a second street tree to the north east. The lack of any substantial treed outlook was yet another example as to why the proposal is inappropriately located.
10. The lack of concurrence for all of these reasons is therefore a sufficient ground alone to refuse the application. Further, Mr Eastman submitted that, notwithstanding that it was a threshold issue, the Court had not been told by the applicant what it says the 'exceptional circumstances' are because there are no exceptional circumstances. The Court should not exercise the power to grant the concurrence the Regulatory Authority denied for all of the reasons it was denied in the first place.

The applicant's evidence and submissions

1. In response to the Department's refusal to grant concurrence, Mr Pocock sent a letter to the Council in 2018. The letter advised that a Supply and Demand Analysis of child care services within the Silverwater area established that there are currently no long day care facilities within Silverwater (Exhibit P). There are also no child care facilities in the suburb of Newington located to the east.
2. The Supply and Demand Analysis stated that, within Silverwater and Newington combined, the number of persons under 6 represented a ratio of 1 child place per 9.47 children which indicated a significant undersupply warranting further child care places (with any ratio over 1 place per 5 children being reflective of an area that may require more child care places).
3. In responding to the issue of 'exceptional circumstances', the letter simply states that the design and layout of the proposed simulated outdoor space on the first floor is considered to provide the features, experiences and qualities of an outdoor space as detailed within the (CCP) Guideline.
4. In terms of this space, Dr Smith noted cl 3.1 of the CCP Guideline states that child care centres should be located near or within employment areas, town centres, business centres, and shops. In order to achieve an acceptable area of play space in such locations, where development is constrained by air quality and noise, the CCP Guideline envisages the use of simulated outdoor space. Otherwise there would be no child care in the Sydney CBD or in any commercial or industrial area.
5. He considered the simulated and indoor spaces to be acceptable because: 1. A total of 7.59m² of unencumbered common outdoor space is provided per child which exceeds the 7m² requirement in the Regulations, albeit provided primarily in a simulated outdoor environment; 2. The unencumbered indoor play space and outdoor play space provided comply with the Regulations; and 3. The simulated area incorporates features and experiences of an outdoor space. On the first floor, it has external full glass wall heights and sections of the roof sheeting will be removed to facilitate light and ventilation and introduce an aspect of the natural environment.
6. In terms of acceptable air quality, this had been addressed in the EnRisks Reports and in an Air Quality Impact Assessment prepared by Todoroski Air Sciences in November 2018. The EnRisks Report (Exhibit L) provides an incremental concentration that is 'protective of the health of young children and staff of the child care centre'. It also notes that, for the assessment of risks related to traffic pollution, exposure to PM2.5 is the most sensitive. Consequently, meeting an incremental guideline for PM2.5 would also be protective of risks posed by other pollutants such as PM10 and NO2.
7. Following the completion of the EnRisks Report, the design of the centre was modified to ensure air quality would be acceptable for young people in the centre. In particular, the report concluded that the modelling results show that 24 hour average PM2.5, and 1 hour average and annual average NO2 levels at the outdoor play area would be below the NSW EPA cumulative impact criterion. The annual cumulative concentration of PM2.5 is already at or above the 8µg/m3 NSW EPA criterion in this locality due to background levels, hence the incremental health criteria is used to assess whether additional PM2.5 exposure to road traffic emissions at the proposed outdoor play area would be within an acceptable level. The results indicate that the outdoor play area complies with this health risk criterion.
8. In terms of having views to trees outside the facility, the letter advises that the proposed simulated outdoor space incorporates extensive curtain wall glazing to the Carnarvon Street and Silverwater Road frontages. Children within the simulated space would have views of substantial canopy street trees located within these road reserves and these trees have an approximate height of 6m or more. An Indicative Street Tree Canopy plan was produced in the amended plans showing their location relative to the site. Further, the landscape planting proposed to the perimeter of the outdoor play area within the Carnarvon Street frontage would also be visible to children within the simulated outdoor space given the first floor glazing.

Air quality and health risk

1. The Council argued, and the applicant agreed, that air quality, and to a lesser degree noise, pollution impacts are threshold issues for the Court in the determination of the application.
2. This was not only from a merit perspective but because of the mandatory requirements for the Court to be satisfied under cl 101(2) of the ISEPP and under the various child care regulations.
3. As indicated, four experts gave concurrent evidence on air quality and health risks associated with it: the health experts, Dr Cowie for the Council and Dr Wright for the applicant; and the air quality experts, Ms Barnett for the Council and Mr Todoroski for the applicant.
4. The health experts in their Joint Report (Exhibit 6 p4) agreed that: traffic related air pollution comprises a range of pollutants from vehicle exhaust that include particulate matter (PM2.5), nitrogen dioxide (NO2), black carbon and other volatile organic compounds; there is no safe level or threshold for PM2.5 or NO2; concentrations of these pollutants will be higher adjacent to major roadways including Silverwater Road; where there are higher concentrations there will be higher levels of exposure and health risk; and children are a vulnerable group. The experts disagreed that these factors would preclude use of the site for a child care centre.
5. The National Environmental Protection Measure, or NEPM (Exhibit R), establishes a one year average level for PM2.5 of 8 micrograms per cubic metre (or 8µg/m3), with no maximum allowable exceedance. The PM2.5 of the surrounding area as required by cl 18 of the NEPM is regularly exceeded in the nearest monitoring station being Chullora. Rates there in 2017 were 9.5µg/m3.
6. The air quality experts agreed (Exhibit 5) that: 1. All practical and feasible measures should be taken to reduce human exposure to PM2.5, where possible. 2. In NSW, the Office of Environment and Heritage (OEH) monitors background pollutant concentrations for a range of pollutions including PM2.5 and NO2. The data recorded is used to create daily email and SMS forecasts and alerts for Sydney. Anyone can subscribe for free to receive the forecasts or alerts when the regional Air Quality Index is forecast to be high. The child care centre operators could subscribe to the forecasts and alerts, and use them as part of the day to day management of the centre. For days on which the OEH issues a "poor" or worse forecast or alert for the Sydney East region, the centre should limit outdoor activities to ensure that exposure of staff and children to air pollutants is minimised. 3. Measures should also be taken to reduce the risk of pollutant exposure from any new neighbouring operations in the IN1 zone. In this regard, the centre operators should seek that the Council review the appropriateness of the neighbouring proposal and, if it approves the proposal, that it includes a requirement to mitigate air pollution that may impact the centre.
7. The air quality experts did not agree that the site is an acceptable location for a sensitive development such as a child care facility or that simply meeting the criterion derived for the site will ensure the facility is safe, with respect to air quality.
8. Mr Todoroski argued that there is some scope to further reduce exposure (relative to the modelled results) for any individual child, or group of children, at the centre by limiting their potential outdoor play time during peak traffic periods (when emissions are highest).
9. Ms Barnett argued that there is no safe limit for PM2.5 and placing a child care centre adjacent to a road as busy as Silverwater Road will more often than not increase the exposure rather than reduce it. Further, that the applicant must demonstrate best practice principles even when criteria are met. In this case, where the applicant cannot control the emission source, best practice would be to locate the facility away from heavily trafficked roads. Given that background levels of annual average PM2.5 in Sydney are already elevated and above the assessment criterion, it is best to ensure that sensitive developments are not located near 'hot spots' where concentrations will be even more elevated. The site chosen is far from ideal.

The Council's evidence and submissions

1. The primary concern of the Council related to health impacts on children and environmental risks associated with having a child care centre in the location proposed, namely adjoining a major road carrying heavy vehicles.
2. Mr Eastman submitted that the development ought to be refused under s 4.15(1)(c) of the EPA Act, having regard to the (lack of) suitability of the site for the development. He cited the recent decision of the Senior Commissioner in Antoine Street Holdings Pty Ltd v Parramatta City Council [2019] NSWLEC 1317 (Antoine Street) at [5] where she said, "(p)ut simply the proposal is not suitable for the site".
3. The same conclusion about lack of suitability of a site for a child care centre was reached by Commissioner Bish based on a site's proximity to a classified road in Lu Projects v Fairfield City Council [2019] NSWLEC 1021 at [70].
4. Critical to the assessment of the development is the requirement to meet cl 101 of the ISEPP. This clause is cast in mandatory language in that the Court must not grant consent to a development unless it is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. As the proposal could not demonstrate this, it must fail.
5. The Council did not accept the applicant's claim that there is an acceptable level of incremental risk in terms of the air quality children at the proposed centre will be exposed to. Such an approach does what no regulatory, academic, Government or other body has done before in seeking to create an objective standard for exposure when the consensus is otherwise that there is no safe exposure.
6. The applicant's expert, Dr Wright, set that standard at 1µg/m3 of PM2.5 as being an acceptable risk. However, the Council argued: 1. The approach to adopting a fixed numeric criterion is wrong; 2. The criterion adopted by the applicant is entirely unreliable and unsafe; and 3. Even rejecting these two arguments, the applicant's proposal fails the test applied by Dr Wright of 1µg/m3 of PM2.5 in any event.
7. The major issue for the Council was not with the modelling, per se, it was whether or not a safe level of PM2.5 can be set and whether or not the modelling demonstrates 'compliance' with that level. Further, to a large extent, the HRA undertaken by Dr Wright had been based on her experience with HRAs to set safe exposure levels arising from major road or infrastructure projects. These were not directly comparable to a site specific child care centre.
8. Nine volumes of material were filed by the Council dealing with this issue (Exhibits 14-22), of which the majority comprised some 3,000 pages of primarily academic research, technical reports or regulatory guidelines referenced by the Council's health expert, Dr Cowie.
9. Mr Eastman took the Court only to particular pages to highlight findings in terms of the deleterious impacts of traffic emissions on the health and development of children. This evidence was not disputed by the applicant.
10. Extracts from the findings of that research are reproduced below with the folio numbers provided from the nine exhibits. Authors include regulatory authorities, the World Health Organisation (WHO), the American EPA, UNICEF, medical practitioners and academics: "Infants, children and the elderly and those with cardiopulmonary disease are the most susceptible to adverse health effects from criteria pollutants." (folio 611). "Because the law requires the most vulnerable groups to be protected when setting or revising … air quality standards, the potential effects of air pollution on the foetus, infant and child should be evaluated and all standards should include a margin of safety for protection of children." (folio 616). "There has been mounting concern about the cancer causing potential of diesel exhaust…" (folio 621). "The adverse effects on health of particulate matter (PM) are especially well documented. There is no evidence of a safe level of exposure or threshold below which no adverse health affects occur." (folio 632). "The scientific conclusions of the 2005 update to the WHO recorded guidelines about the causal link between PM2.5 and adverse health outcomes in human beings have been confirmed and strengthened…" (folio 637). "In conclusion, the evidence of the harmfulness of particulates from traffic has increased substantially since the 2005 global update of the WHO air quality guidelines. However, because of limited data and large variability in outcomes and available source indicators…, traffic can't be ranked yet, relative to other particular sources with respect to harmfulness." (folio 652). The Health Effects Institute Panel identified an exposure zone within a range of up to 300-500 metres from a highway or a major road as the area most highly affected by traffic emissions - the range reflecting the variable influence of background pollution concentrations, meteorological conditions, and season". (folio 700). "The health reviews show a current understanding that there is no threshold for the health effects of air pollution. This means that wherever standards are set there will be some residual risk associated with them." (folio 962). "Clean air is critical for children's health and well-being". (folio 1248). "Children are among those most vulnerable to suffering adverse health effects due to exposure to high levels of air pollution. Due to their higher breathing rate to the body size ratio, and less developed natural barriers in the lungs warding against inhaled particles children are subject to heightened sensitivity to airborne pollutants in their environment…These barriers have been shown to be compromised in young urbanites exposed to air pollution, thus reducing the brain's capacity to protect itself against potentially dangerous toxicants/particles. Children also consume more air and water per unit of body size when compared to adults and spend a significant amount of time outdoors. This factor, in particular, elevates a child's risk exposure to air pollution, especially when considering that …the children's organs (are) developing…" (folio 1250). "There is ample evidence that PM exposure impacts the health of children. PM exposure in children has been associated with deficits in lung function growth, increased respiratory illnesses and symptoms, increased school absences and hospitalisations for respiratory disease. There is also substantial and growing evidence that air pollution is a risk factor for increased mortality in infants and young children." (folio 1320). "In a practical sense, it is clear that the term risk always implies uncertainty, and that the concept of risk is inherently probabilistic in nature. Risk assessment is therefore concerned with making technical decisions as to the nature and magnitude of a risk, where there is uncertainty both as to whether the undesirable action or event will happen, and what its consequences will be if it did happen". (folio 1341). "We need to help families reduce their children's exposure to air pollution and this means reducing the time spent in areas where pollution is high, such as near or around areas of severe traffic congestion…". (folio 3069).
11. The material talks about 'distance decay gradients' which, in layman's terms, I understood to be, in essence, the decline in the amount of pollutants over a specified distance to reach an 'acceptable' level of exposure. The applicant claimed, based on their health risk assessment (HRA), that this distance was 10m. However, the literature quoted much greater distances, in the order of 100m-500m for different pollutants from major traffic sources before 'acceptable' limits of exposure to those pollutants (including PM2.5 and NO2) were achieved, depending on local site conditions.
12. Mr Eastman submitted that what the material demonstrated was the burgeoning evidentiary basis since 2009 (being a significant date because data from that year is used in Dr Wright's HRA) of the serious detrimental impacts of air pollutants on children and their development. Given the absence of any proper objective standard against which to measure the acceptability of this impact, this information is of significant importance as the risks and detriments are high.
13. In this regard, Dr Cowie's evidence was that, at the Chullora air quality monitoring site, emissions are already at national standard levels for PM2.5 and close to the standard for NO2, for annual averages. Given that the Chullora monitoring site is not located along major roads, the pollutant levels along Silverwater Road will be higher than national standard levels for ongoing average exposures. Adjoining sites are also highly likely to experience higher short-term acute pollutant concentrations. Siting the child care centre along Silverwater Road will mean that those children attending the centre will experience air pollutant levels higher than the population average and higher than the national standards for a substantial portion of their waking active time.
14. Further, peak expert groups and governments are moving towards an exposure reduction approach to minimise risk as far as practicable. Siting a new child care centre along a main road is incongruous with minimising risk. Additionally, the ISEPP Interim Guideline (p9) states that "Where new schools and childcare centres are being considered, the design should ensure that there is sufficient separation from 'busy' roads and rail corridors to avoid adverse noise and air quality impacts".
15. In her view, the weight of evidence indicates that siting a child care centre on Silverwater Rd will increase risk of adverse health effects due to exposure to traffic emissions, and that this goes against an exposure minimisation paradigm and is incongruous to peak expert groups' advice, especially given there is a choice of siting the child care centre away from busy roads.
16. Dr Cowie therefore considered Dr Wright's HRA to be inappropriate for a number of reasons, summarised as follows: 1. Children attend child care centres for long exposure periods, typically up to 8 hours a day sometimes 5 days a week. People spending substantial time near busy roads are vulnerable due to their increased exposure. 2. The site will experience significantly higher than average pollutant concentrations and would mean the attending children will spend a large proportion of the day at a site with higher than average pollutant concentrations with the potential that peak concentrations may even be much higher. Children being exposed for long periods of time to air pollutant levels which are greater than the Sydney average goes against the exposure minimisation paradigm. 3. A substantial proportion of the high traffic encountered at the site comprises heavy vehicles with proportions ranging from 5% to 17% whilst the child care centre is operating and up to 28% at 3-4am. By the time the centre opens, emissions could be expected to still not have fully dispersed. 4. Heavy traffic almost exclusively consists of diesel fuel. Diesel exhaust emissions are more polluting and known to result in substantially greater emissions of fine respirable particulate matter, including black carbon and toxic compounds, which have a more deleterious effect on health. 5. Children are vulnerable. Their brains, hearts, lungs and immune systems are still developing, their rates of inhalation of pollutants are significantly greater than for adults as their breathing rate is faster, and they spend significantly more time in outdoor environments than do adults.
17. In the health experts Joint Report (Exhibit 6), Dr Cowie states that, whilst it is usual to use a HRA based approach when an existing site undergoes a change in use, a risk minimisation approach should be adopted to prevent or avoid exposure. She noted that, whilst many motorway projects lead to an overall net benefit, this is not the case for the proposed child care centre where the majority, if not all, attending children will experience increased pollutant concentrations modelled to already be above national standards. In this case the relevant questions to ask is: Is it safe to site the child care centre at the proposed site knowing the scientific evidence on the adverse effects of traffic related air pollution and knowing that health risks could be minimised by siting the centre elsewhere. In her view, the answer is no.
18. She argued that, given the context, using incremental criteria (to try and establish a 'safe' level of exposure) is not an appropriate base for a HRA because the site will facilitate a potentially susceptible group to be exposed to pollutant concentrations levels higher than the national standard and alternative risk management approaches are available (such as siting the centre in a lower risk location). A HRA is only one of the inputs required for making risk management decisions and it may not be the most important input in any given situation.
19. She also considered it important that HRAs include some sensitivity analysis, as changing the inputs has the potential to substantially impact on the final risk assessment outcome and therefore alter conclusions made about risks. The case for a sensitivity analysis can be made for this proposal, but none was undertaken.
20. Finally, Dr Cowie noted that this is a retrofit of an existing commercial building where the applicant has not tried to utilise the site itself to achieve the best air quality outcome. This does not assist in minimising the impact, such as by enabling a greater distance from the emissions' source.
21. Mr Eastman submitted that this latter point is of particular significance given cl 101 of the ISEPP requires the Court to be satisfied that the centre is appropriately located and designed to ameliorate traffic noise and vehicle emissions from adjacent busy roads. This test is not met because it must be accepted that the site is sensitive to vehicle emissions and, in retrofitting a building, there has been a failure to ameliorate potential vehicle emissions within the site. The Court could not be satisfied of the matters required by the ISEPP.
22. This was, he claimed, even before analysing deficiencies with Dr Wright's methodology which was a complicated mathematical formula with three specific data inputs. These were: the target risk, a beta coefficient based on relevant studies, and a baseline incidence of health input. In terms of the actual three inputs used, the target risk was set at 10-5, the beta coefficient at 0.0058, and the baseline incident at 0.005252 (being mortality).
23. The Council took issue with the first two of these inputs noting that there is no objective, industry, academic, or regulatory acceptance that an increment of 1µg/m3 of PM2.5 is a correct or acceptable standard to use to determine safe exposure of children in a child care centre (or anywhere else). To the contrary, the experts agreed there is no safe limit. This has not prevented the applicant coming up with a subjective non-industry non-academic non-regulatory approach to settle upon 1µg/m3. This was the incremental standard on which basis Mr Todoroski's model projects a required setback from Silverwater Road, until that incremental standard is met, which he considered to be at 10m. This is despite the research indicating dispersal of pollutants does not reduce significantly before between 100m and 500m.
24. In terms of Dr Wright's HRA, which concluded that 1µg/m3 could be achieved and would be acceptable with a 10m setback, the deficiencies claimed by Mr Eastman were as follows.
25. Firstly, using 10-5 means adopting a low-moderate risk approach as opposed to adopting 10-6 (a negligible risk approach), being 1 in 100,000 versus 1 in 1 million. The Council questioned why you would allow any risk at all. The literature comprehensively contains evidence that air pollutants can have a serious detrimental impact on children, and having regard to what is at stake, surely the only acceptable criteria is a negligible risk? Further, the CCP Guideline, being itself an express mandatory consideration called up by cl 28 of the Child Care SEPP, says a development should 'avoid' risks.
26. If the negligible risk criterion is adopted, the formula would change and the development would not 'comply' even using the applicant's definition of compliance, being 1µg/m3.
27. The criticism of the beta coefficient was that it was based on an academic study from 2009, referred to in the proceedings as the 'Krewski Study', to derive a very specific number to feed into the formula being 0.0058. If this number changes, the outcome of the HRA changes significantly. The Krewski Study's failing is that it was not an 'all ages study' and did not measure mortality rates in children but only for people aged 30 years and over. It is not therefore relevant to the population being exposed. This means the figure selected is too low and should be considered a fatal flaw. Further, it is a decades-old study.
28. Dr Wright then adjusted the calculated figure of 0.33µg/m3 to be 1µg/m3 because she used 240 days rather than 365 days for the operation of the centre and assumed 12 hours per day. However, nowhere in any literature is this approach supported or warranted. It is only self-serving to the applicant in order to achieve the 'compliant' figure the applicant themselves came up with.
29. She also adopted a number of assumptions which the Council contended were wrong; i.e. the centre only operated 48 weeks per year (which may be reasonable) and assumed a 5 day per week operation. The application as proposed was for 6 days per week but was then amended by the applicant because, if it was 6 days, the proposal would not comply with the applicant's own minimum risk standard.
30. Finally, at the very least to address uncertainties, a sensitivity analysis should have been undertaken. That it had not been done was seen as a significant failure in the methodology. A HRA of this type in the absence of any sensitivity analysis must be flawed as it leaves no margin for error, does not calibrate with the potential for uncertainties which may vary, and is in circumstances where serious risk to child development is at stake.
31. Mr Eastman submitted that, based on the precautionary principle and approach which had been the subject of a number of Court decisions, where there was scientific uncertainty, the precautionary approach should apply and the application not be approved. Dr Wright herself had indicated that some uncertainty will be inherent in any estimate and there is no better justification for a precautionary approach than could be derived from her own evidence.
32. The Council was concerned that, if the Court accepted the applicant's HRA criteria and methodology, a precedent would be created not by scientific verification, not by sensitivity analysis, and not by acceptance of academic studies and literature, but based on a scientific assessment by one expert but disputed by other experts.
33. If the Court accepted this figure, it could become a future point of assessment for child care centres or other sensitive uses adjacent to major roads. The Court, therefore, needed to be absolutely certain of the veracity of the approach, and the applicant could not provide that certainty.
34. In this regard, it is not surprising that the criterion of the type adopted by Dr Wright does not exist. If her criterion was accepted by the Court as a safe exposure standard, there is no reason it would not be utilised as a justification for air quality impacts on sensitive development sites. Therefore, very close scrutiny ought to be had to any suggested 'compliant' standard designed by the applicant's experts for the purpose of obtaining consent in this case where no such standard has been formulated to date. What are incontrovertible facts are that there will be pollution impacts on the site, no impacts are safe, and children are an especially vulnerable group. If the Court was minded to accept the applicant's standard as being appropriate, then it ought to do so having regard to the detailed literature referred to by the Council's experts none of which establishes a safe basis for acceptable impacts for children or child care centres.
35. Mr Eastman also questioned the acceptability of the evidence of Mr Todoroski. As an air quality expert in a recent child care centre case before the Court, Chahda v Liverpool City Council [2018] NSWLEC 1371 (Chahda), Mr Todoroski had said in the Joint Report of the air quality experts, in giving evidence on behalf of Liverpool City Council (Exhibit 23, p7), that: "i. Motorway projects can have both positive and negative impacts on air quality depending on, amongst other things, the locations of receptors, but a childcare centre introduced near to a busy road is likely to lead to net negative health effects on the occupants. ii. The metric used for the motorways is based on population effects on adults over 30 years of age, whereas the effects of the childcare centre are on young children that are most susceptible to health impacts from air quality. Children breathe in a similar amount of air as adults, but as they have many times less mass and this receive a greater dose (sic). iii. Motorway projects are built where they are needed, but there are reasonably available options for the better siting of a childcare centre to minimise impacts. iv. It is important to not lose sight of the importance of the total cumulative level for annual average PM2.5 being as low as possible to protect health. v. There is no standardised value that can be applied (to childcare centres, other roads, or other developments), and the motorway metric is indicative only."
36. Mr Eastman was critical that Mr Todoroski appeared to now change his mind albeit Mr Todoroski said it was on the basis of the scientific input provided by Dr Wright. However, the Council contended that Mr Todoroski was correct in his advice in Chahda, and there is no basis for him to change his opinion now unjustifiably.

The applicant's evidence and submissions

1. Dr Wright was commissioned by the applicant to determine an incremental criterion for particulate matter, specifically PM2.5. The criterion was required to assist in interpretation of the assessment of air quality impacts related to the application.
2. Her study was in response to concerns being raised in relation to the impact of air pollution from traffic on Silverwater Road. An Air Quality Impact Assessment was undertaken by Todoroski Air Sciences of air pollution impacts from vehicle emissions on Silverwater Road. This included an assessment of potential increased concentrations of fine particulates, such as PM2.5.
3. As there are no guidelines available in Australia or internationally in relation to what increase in PM2.5 is considered to be of concern to human health, Dr Wright's study was to provide an incremental PM2.5 concentration that is protective of the health of young children and staff at the child care centre. For the assessment of risks related to traffic pollution, exposure to PM2.5 is the most sensitive. Meeting incremental guideline for PM2.5 is therefore also protective of risks posed by other pollutants.
4. The HRA undertaken by Dr Wright is detailed in the EnRisks Report and advices. As I have already outlined, it determines what Dr Wright considers to be an acceptable incremental criterion of (additional) emissions that can be received at the child care centre of 1µg/m3 of PM2.5 based on a mathematical formula comprising three inputs, those inputs being already summarised in overviewing the Council's position on the HRA.
5. Dr Wright summarises her reasons as to the appropriateness of her HRA methodology and input in the expert Joint Report (Exhibit 6), generally as follows: 1. While there is no safe threshold for particulate matter and nitrogen dioxide, there are national standards for these pollutants, which are deemed to be protective of health. 2. In a planning context, the mere presence of pollution, or higher levels of pollution (such as those adjacent to a road) should not be the basis for concluding health risks are not acceptable. For these situations, it is appropriate to enable an assessment of health risk to inform the suitability of use when considering the presence of any pollutants, whether in air, water or soil. 3. Any such planning decision in relation to children at a child care centre would equally apply to all children, including residents, as all children in all land uses should be considered as a sensitive group. 4. When assessing health risks associated with traffic related air pollution, the risks are dominated by fine particulates (PM2.5). Hence, while there may be a number of other pollutants also present in vehicle emissions, assessing health risks for PM2.5 will be protective of health risks for the other pollutants from traffic. This is based on experience in the assessment of health risks from traffic emissions for major projects such as NorthConnex, WestConnex, F6 Extension and the Moorebank lntermodal Terminal, where health risks were calculated for a significant number of traffic related pollutants. In all these assessments, the most significant risks related to PM2.5.
6. In her view, it is appropriate to use a risk-based approach to the assessment of health risks when determining the suitability of a site for a particular land use. This is consistent with what is done when assessing other types of contamination or pollution present on a property when land use is being changed. Such an approach is regularly undertaken for the assessment of site contamination for industrial properties proposed to be redeveloped for child care or residential uses in accordance with the NEPM.
7. Providing an incremental criterion for pollutants that do not have a safe level (or threshold) is also consistent with the approach adopted for setting guidelines for carcinogenic pollutants. Many carcinogens do not have a safe level and there is a high baseline (existing) level of cancer in the community. There are guidelines for assessing human health risks from environmental hazards which provide guidance on assessing risk from pollutants on the basis of an incremental guideline - that is a guideline based on an increased level of risk - over and above the existing risk. The incremental level of risk adopted for setting the incremental PM2.5 criterion was consistent with that used for contaminated sites utilising a risk-based approach and was based on the most significant risks relevant to traffic emissions, namely PM2.5 and mortality.
8. Whilst Dr Wright agreed that pollutant exposures near roads will be higher than away from roads, the incremental criteria derived by her specifically relates to how much higher the pollutant levels may be before health risks related to exposure at the site are considered unacceptable. This is an incremental criterion, over and above the existing regional levels, and in her view the derived increment of 1µg/m3 of PM2.5 resulting from her HRA was appropriate and safe to apply.
9. She justified adopting a target incremental risk factor of 10-5 as it is the upper value of accepted mortality risk from particulates provided by the National Environmental Protection Council (NEPC) for mortality rates. It is also the same value NEPC sets for considering risks from contaminated land. Typically a risk factor of 10-4 is considered an unacceptable risk and she had adopted a more conservative factor than this.
10. Dr Wright accepted in her HRA that determining an acceptable level of risk for the proposed child care centre is challenging when no specific guidance is available but she considered other approaches. She also accepted that there were uncertainties and limitations in any HRA but she maintained that her assessment, which considered the specific risks to children's health, was robust and appropriate.
11. Referencing the Joint Report of the air quality experts (Exhibit 5), and noting what had been agreed between the health experts, Dr Smith submitted that the air quality experts had agreed as follows: 1. If the indoor air quality at any inlet of a building is acceptable then, assuming there is no significant source of internal air pollution, it follows that the indoor air quality would also be acceptable. 2. The results of the air quality modelling over predict the impacts of the site and are otherwise compliant with the adopted health criteria. 3. There is no safe limit for any pollutants, however, criteria and limits are applied to such pollutants based on the level of risk that has been determined to be acceptable. For example, health based criteria or limits set by governments and regulatory authorities. 4. The use of an incremental criterion is an appropriate method for assessing impacts. 5. Sufficient consideration has been given to future vehicle emissions (in the modelling undertaken).
12. The question then is: What is the starting point for the Court's assessment of air quality impacts having regard to the requirements of s 4.15 of the EPA Act? The applicant submitted that, as required by s 4.15(1)(a), it is the relevant planning controls.
13. A detailed review of these controls and guidelines establishes that there is no specific setback, development standard or other control which stipulates the required distance of a child care centre from classified roads. The controls therefore require a merit assessment and recommend a risk based approach to this.
14. In this regard, the site is zoned B6 Enterprise Corridor under the LEP and the zone objectives include to promote businesses along main roads and to encourage a mix of compatible uses. Child care centres are permissible in the B6 zone and the B6 zone is isolated to land adjacent to classified roads.
15. The ISEPP Interim Guideline, at cl 4.3.2 and figure 4.4, points out that pollution concentrations can be expected to reduce by around 65% of roadside levels in the first 10m from the road. Clause 4.4.2 otherwise sets out when design considerations are required in relation to air quality and simply states that any sensitive uses, such as child care centres, should be far as practicable from the major source of pollution.
16. Mr Todoroski's oral evidence was that during his preparation of these guidelines a specific distance control was recommended to address air quality. However it was specifically rejected, including by the Council, during consultation.
17. Clause 25 of the Child Care SEPP establishes a number of non-discretionary development standards and location requirements but these relate only to distances from existing and proposed centres. It otherwise provides that Parts 2, 3 and 4 of the CCP Guideline prevails over any provisions of the DCP.
18. Clause 3.1 of the CCP Guideline deals with site selection and location. Control C1 envisages, not prohibits, child care centres in industrial and commercially zoned areas whilst Control C2 considers retrofitting existing buildings and Control C4 suggests a risk-based location assessment. Clause 3.6 refers to air quality and controls C27 and C28 require the preparation of an air quality assessment report to demonstrate the development can meet the air quality standards in accordance with relevant legislation and guidelines. However, no specific setback control is stipulated.
19. The DCP has a specific chapter dealing with child care centres. Clause 1.4 provides both performance criteria and development controls for their location but states nothing more is required than to be located away from any environmental health hazard or risk. Clause 2.3 otherwise envisages that a proposed child care centre could be situated on a collector or main road.
20. Whilst the Court is entitled to depart from the DCP standards it is not appropriate to take a different view than that embodied in the DCP as to the applicable general policy and substitute an approach for the DCP standard. Otherwise, the DCP provisions are a focal point in the decision-making process but not determinative; s 4.15(3A)(b) of the EPA Act requiring flexibility in the application of the DCP provisions and allowing reasonable alternative solutions which achieve the objectives of the standards.
21. Finally, on the issue of relevant controls, the Child Care Regulations are silent in relation to any specific setback or distance requirements from major roads or otherwise specific air quality criteria.
22. The Court would therefore conclude that a merit assessment is required.
23. In this regard, Dr Smith was critical that there was no evidence from Council experts which identified what the air quality criteria should be, what alternative assessment approach should be undertaken, or what distance from the classified road would be acceptable. The Council simply considered that the centre would be better positioned somewhere else away from the road and the site used for another purpose that posed less risk. The fundamental problem with the Council's experts was a failure to address and quantify the acceptability of the proposed development at the proposed location.
24. Dr Smith considered this not dissimilar to the approach taken and rejected by the Court in BSDI Pty Ltd v Manly Council [2009] NSWLEC 1067, upheld on appeal. In that instance, the Council had contended that the site was not suitable being located at the intersection of two classified roads which would expose children to vehicle emissions and traffic noise. The air quality expert for the applicant concluded that the emissions would not have a detrimental effect on the children provided appropriate conditions were incorporated into the consent. At [61], the Commissioner found: "61 It is self-evident that the site has a major constraint by its location at a busy corner of two arterial roads. The site itself is dominated by the road and noise, however, the surrounding area is predominantly low density residential development in garden settings with a quieter vegetated ambience. The role of the Court is not to determine whether the subject site is the most ideal or best location for a child-care centre but whether the site is suitable on a merits assessment."
25. The applicant was offering the same air quality monitoring conditions as were proposed in that matter. Dr Smith also cited Court decisions where consents were issued imposing similar air quality conditions, and therefore to do so was an accepted approach.
26. He reiterated that the air quality experts had agreed that the use of an incremental criterion was an appropriate method for assessing impacts. Dr Wright, having developed the air quality incremental criterion for nearly every major road project in Sydney, was clearly qualified to generate the criterion. Mr Todoroski, being the author of the Approved Method for the Modelling and Assessment of Air Pollutions in NSW (Exhibit 14, Tab 11) is clearly well placed to undertake the air quality modelling and the air quality experts agreed that his model was correct and compliant with the health criterion.
27. Therefore the Court should prefer his evidence which was unaltered as distinct from the evidence of Dr Cowie who nevertheless did agree that risk assessment is one of several tools that can be used for making risk management decisions. Also, that of Ms Barnett who conceded she was not qualified to determine what an incremental criteria should be.
28. Dr Smith submitted that the criteria the applicant was applying are actually better than any other available methodology. The Court has the benefit of two experienced experts including Dr Wright who developed the risk assessment criteria for the F6 and most motorway projects in consultation with the Department of Health to identify an appropriate risk methodology and standard.
29. The applicant's two experienced experts had turned their minds to this project to determine what an appropriate standard would be. The applicant did not cavil with the world's academic literature dealing with the impact from air quality. The site already has an elevated criteria for PM2.5 but so does every other residential house in the local government area. If you accept the Council's case you would have no residential development in this part of Sydney. Given these circumstances, the next appropriate step would be to do a risk assessment. Mr Todoroski's model shows that a 10m setback would result in the exposure of a 1µg incremental increase in exposure of PM2.5, if his work was accepted, and Dr Wright's scientific assessment had determined this level of risk to the health of the children would be acceptable.
30. It is not the role of the Court to determine if there are better locations. It is about whether this site is acceptable or not. Rigorous risk profiles had been developed. If the applicant's expert evidence was not accepted, it would throw the assessment of all planning matters in terms of air quality back 10 years and ignore what the Department of Health has already agreed with road authorities in developing criteria.
31. There was therefore sufficient evidence before the Court for the purposes of cl 101 of the ISEPP to be satisfied the proposed development is appropriately designed and includes measures to ameliorate potential vehicle emissions within the site arising from the adjacent classified road.
32. In terms of compliance with the ISEPP, Dr Smith noted that child care centres are permitted in the B6 zone and the advice in the Interim Guideline states (p5) as follows: "As part of taking a strategic planning approach, noise and air quality issues should be considered at the strategic level to avoid or minimise the need to address them at the site specific stage. For example, site selection and consideration of site layout and urban form can assist in reducing adverse health impacts from motor vehicle emissions. Similarly considering traffic noise issues upfront at the site selection and design stage is essential for residential hospitals childcare centres, schools, places of public worship and other sensitive development."

Noise impacts

1. In their first Joint Report (Exhibit 9), the acoustic experts agreed that, subject to the appropriate treatments and conditions recommended, including the 2.1m acoustic wall then proposed, a number of the noise contentions could be resolved. However, they disagreed on the acceptability of the road traffic noise intrusion on the centre.
2. Subsequently however, in considering the amended application, the Council's expert, Mr Haydon, raised concerns with the modelling that was undertaken and sought to undertake his own modelling using different software. As previously indicated, the proceedings were adjourned to enable this to occur. It was also of concern to the Council that the applicant's expert, Mr Raymond, had not undertaken the noise modelling himself. As a consequence, leave was granted for the modeller, Mr Carney, to also give evidence. A second acoustic Joint Report (Exhibit 25) was provided along with an addendum to that report (Exhibit 26).
3. The experts agreed that the relevant controls are derived from the Association of Australian Acoustic Consultants Guidelines for Child Care Centre Acoustic Assessment (the AAAC Guidelines - Exhibit W). This sets the noise limit of 40dB(A) for internal areas and 55 dB(A) for external areas. For their most recent Joint Report the experts modelled the results based on 3.4m and 4.3m high barrier fencing being provided (including a 1m cantilever) and also whether the receiver was a child (modelled heights of 0.7m and 1m) or an adult (1.5m).

The Council's evidence and submissions

1. The Council contended that cll 101 and 102 of the ISEPP were not met in terms of acceptable noise impacts from traffic on the child care centre.
2. This was on the basis that the modelling clearly demonstrated non-compliance with required noise levels even with a wall up to 4.3m high, which was higher than the wall proposed in the amended application. At that height Mr Haydon's modelling gave an estimated 58 dB(A) for the children and 59.8 dB(A) for the carers in terms of noise exposure within the outdoor play area.
3. Mr Eastman submitted that Mr Haydon's evidence should be accepted as he had exposed significant deficiencies in the applicant's modelling despite the applicant's experts producing multiple versions of the models by way of updates and corrections to errors Mr Haydon had pointed out.
4. The Council was critical that the applicant suggested a condition of consent be imposed to audit the acoustic treatments once installed and prior to occupation of the centre and that, if noise compliance was not achieved, ameliorative measures could be imposed including limiting the hours of use of the outdoor area to times when noise volumes would be lower.
5. Mr Eastman submitted that a condition cannot be imposed if it leads to the balance of the approval being uncertain, as various Court decisions had held. The results of such 'adaptive management' were unknown. What was known was that even a 4.3m barrier/wall with a cantilever would not adequately mitigate the noise impacts.
6. There was also no guarantee that ameliorative measures such as a higher wall or fixing absorption panels to the barrier/wall would work and, if required and installed, whether such structures would have adverse impacts such as further enclosing the outdoor area or removing the ability for external viewing of landscaping and trees. By this stage of the assessment of the application there should not be any uncertainty as to the ability to meet noise attenuation requirements. The applicant should be able to say exactly what mitigation would be undertaken to ameliorate the adverse acoustic impacts, as the ISEPP specifically requires.
7. It was agreed that the proposal is sensitive to traffic noise. The modelling indicates what is proposed will result in non-compliant noise levels. The applicant has not adequately demonstrated the potential to ameliorate the potential traffic noise to an acceptable level. Therefore the application again fails cl 101 of the ISEPP.

The applicant's evidence and submissions

1. The applicant argued that the revised Acoustic Impact Assessment (Exhibit G) predicted that the proposed child care centre can operate in an acoustically compliant manner subject to implementation of a number of design measures. These include upgrading glazing and installation of a solid 2.4m high barrier to the ground floor external play area which now forms part of the amended application.
2. Clause 2.3 of the DCP envisages and recommends acoustic attenuation in circumstances where a child care centre is likely to be affected by heavy traffic noise and situated on a main road, rather than not permitting them at such locations.
3. Since the assessment, there had been extensive further modelling, and checking and re-running of the models, by all of the acoustic experts. Their evidence is detailed in four expert Joint Reports (Exhibits 9 and 24-26). This evidence was that: 1. Clause 7 of the AAAC Guidelines (Exhibit W) establishes a relevant indoor noise level of 40 dB(A) and, for outdoor play areas, 55 dB(A) for child care centres. 2. There are no outstanding issues in relation to acoustic impacts to the play space on the first floor or inside the ground floor. 3. The AAAC Guideline requirements in cl 7 are the actual operational requirements as opposed to a modelled or simulated requirement. 4. Options for further mitigation measures if required include: installing outdoor absorption panels; increasing the barrier height; installing overhead panels that are semi-enclosed; and allocating the outdoor play time to be between 3pm and 5pm when the noise in the outdoor play area is 2 dB(A) lower. 5. Therefore, the acoustic experts agreed that it was within the realms of possibility that the outdoor play space could achieve acceptable noise levels of 55 dB(A).
4. Dr Smith submitted that the objective of ACCC Guidelines is to protect children from excessive noise which may be experienced due to the close proximity to roads. Accordingly, it is inappropriate to apply the criterion in these Guidelines to receivers other than children (i.e. to include the child care centre workers).
5. The plans and PoM identify the ground floor outdoor play area is only to be used by children of 0-2 years of age. Accordingly, the appropriate reference height for the noise modelling is 0.7m, not 1.5m, as advocated by Mr Haydon which is clearly for an adult where the relevant criteria is 85dB(A) in accordance with NSW work, health and safety regulations. The AAAC Guidelines were not drafted for, and therefore should not be used to establish, workplace noise criteria.
6. When modelled at the correct receiver height, the Council establishes a potential 1 to 2 dB(A) margin of error in the applicant's modelling. The human ear cannot distinguish sound levels generally less than 3 dB(A).
7. Accordingly, the applicant's acoustic experts considered that margin of error to be acoustically insignificant and should also be considered in light of the modelling limitations. These include: the inability of the applicant's modelling to account for noise reduction caused by absorption, therefore it estimates higher sound levels; truck noise was overestimated in the modelling, being simulated 100% of the time from both 1.5m and 3.6m source height; and acceptance by Mr Haydon, in relation to traffic noise sources and alleged scaling errors, that the degree of this impact is difficult to speculate without further analysis and modelling.
8. Therefore, there is sufficient evidence for the purposes of cl 101 of the ISEPP that the Court would be satisfied that the proposed development is appropriately designed or includes measures to ameliorate (the estimated) potential traffic noise within the site arising from the adjacent classified road.
9. In any event, although actual noise testing and construction of the acoustic barrier/wall is likely to demonstrate compliance, the applicant has proposed a noise condition which requires auditing and further measures to be imposed if necessary before the issue of an occupation certificate. Such an approach has been consistently applied by the Court. A number of authorities were provided by Dr Smith to demonstrate this.

The Council's evidence and submissions

1. The Council argued that the development was inappropriate given the proximity to the IN1 industrial zone. This was contrary to the IN1 zone objectives which include: to minimise any adverse effect of industry on other uses and to support and protect industrial land for industrial uses.
2. The proposed area of outdoor play space facing Carnarvon Street and Silverwater Road is directly opposite the IN1 zoned land on the northern side of Carnarvon Street which is an area used by industry and serviced by heavy vehicles. A wide range of uses exist and are permissible in the IN1 zone, such as freight transport terminals, panel beaters, heavy industrial storage, and waste disposal facilities as well as general industry. Child care centres are prohibited in the IN1 zone.
3. A relatively high proportion of the traffic on Silverwater Road comprises heavy vehicles and heavy vehicles also access Carnarvon Street with no practical alternative to service the sites fronting Carnarvon Street other than to go past the site.
4. Land use conflicts may become inevitable with such a sensitive use proposed on the site which would be incompatible with industrial uses, and limit future opportunities for uses consistent with, and permitted in, the IN1 zone and with the objectives of that zone. It was Mr McDonald's evidence that the site is exposed to existing and potential industrial uses surrounding it being adjoined to the east and south by these uses accessed by heavy vehicles. Effectively 'the site is an island surrounded by roads and industrial uses' (Exhibit 4, p10).
5. The applicant relied on the permissibility of child care centres in the B6 zone. Mr Pocock's initial evidence was the child care centres were also permissible in the IN1 zone by virtue of cl 24 of the Child Care SEPP. However, he advised in oral evidence that he accepted that this was not the case and they were in fact prohibited, as they were prohibited in the LEP and cl 24 only applies if child care centres are permitted by the LEP.
6. Whilst the Council accepted that weight should be given to the permissibility of a child care centre within the B6 zone, the development must still be found to have acceptable environmental impacts or be acceptable on merit. Further, the applicant had provided little expert evidence on the land use conflict issue in terms of the site's location adjoining an industrial zone other than Mr Pocock (incorrectly) stating that child care centres were permissible in the B6 zone.

The applicant's evidence and submissions

1. The applicant argued that the proposed development must be compatible in the zone as, had the Council intended child care centres to be prohibited within the zone, they would have prohibited them, as occurred for a range of other uses. The development meets the objective of the B6 zone, being designed to provide a range of employment uses and, being located in this zone, and also complies with s 3.1 control C3 of the CCP Guideline as it is within an area intended to provide employment.
2. The Council argued that the development should not be allowed given the uses that are permitted or exist in the IN1l zone opposite and could sterilise land from development in that zone. However, there is no evidence that any of the structures surrounding the site are about to be redeveloped or that any proposed use would be incompatible with a child care centre. Any such redevelopment would be constrained, including by the adjacent intersection, the safe introduction of heavy vehicles, and the close proximity to a residential zone. These constraints are more confining than the child care centre with its proposed mitigation measures.
3. Finally, although the site is located adjacent to an industrial zone, the Court must consider the objectives of the zone in which the application is actually situated.

Other remaining contentions

1. The Council submitted that the quality of the outdoor space was poor and in the most affected location in terms of impacts from adjacent roads. Access to vegetation and trees was minimal and an acoustic wall could be required up to some 4.3m in height cantilevered to semi-enclose this area, further reducing its amenity.
2. Dr Smith submitted that the proposed 2.4m high acoustic wall would not prevent children from interacting with the natural environment, having regard to views to substantial canopy street trees.
3. Concern was also raised in terms of ease of access between the play areas on different levels. Mr Pocock agreed that the separation of the play areas was not ideal but he considered it satisfactory given the proposed development involves refurbishment of an existing commercial building.
4. However, Dr Smith submitted that the amended application substantially encloses the staircase between the ground and upper levels and the PoM (Exhibit U) provides a logical and effective management of movement between play spaces and limits the number of movements required.
5. Ultimately it was agreed that the PoM could assist with addressing this issue but it further reinforced to the Council that the site was unsuitable, particularly as a retrofit, for a child care centre.
6. Finally, the Council contended that the application did not meet the requirement for ventilation as required by s 4.4 of the CCP guideline. It was unable to rely on a mixture of natural cross ventilation and air conditioning due to the requirement to ensure windows remained closed because of the hostile external environment.
7. The unsatisfactory amenity that resulted from a reliance only on air conditioning for ventilation was one of the reasons why Commissioner Bish had refused the child care centre in Lu Projects and concluded that the child care centre site proposed was unsuitable, having regard to the provisions of s 4.15(1)(c) of the EPA Act.
8. However, the applicant argued that the proposed reliance on mechanical ventilation to provide a controlled temperature environment within the centre is essential to achieve the requirements of regulation 110 so that the centre is maintained at temperatures that ensure the safety and well-being of children. It is not contrary to the CCP Guideline which acknowledges that there will be circumstances where mechanical ventilation will be essential to creating ambient temperatures within a facility.
9. Further, in light of temperature variations in the area, mechanical ventilation is essential to maintain ambient temperature and natural ventilation would defeat the requirement to maintain a temperature that ensures the safety and well-being of children.
10. Finally, the Council argued that the application had not adequately addressed or resolved the proposed method of evacuation and provision of a safe assembly area despite this being required by the Regulations. The Council argued that the manner in which children will be moved to or placed on other land external to the site did not comprise part of the application. An area on or adjacent to the footpath would be insufficient to accommodate 96 children and all of the staff, and the building fronted two major roads.
11. The applicant argued that there would be adequate emergency evacuation space within Barker Avenue which is a side road accessed from Carnarvon Street to the rear of the site to adequately accommodate any evacuation required.
12. There were several other, more minor, design issues raised by the Council such as the design of sleeping areas, but these were not determinative of the application and the evidence indicated they could likely be resolved.

Disputed conditions of consent

1. Following the hearing, the parties filed agreed conditions of consent. However, there were a number of conditions not agreed and reasons were provided for the alternate conditions proposed.
2. The key conditions in dispute included a proposed deferred commencement condition sought by the Council to obtain approval to the restricted left in left out access from Carnarvon Street and for the agreed works to be installed prior to the consent being operational, arguing that the condition was a basic and essential requirement to confirm safe egress at the site. The applicant argued this requirement should be left to the detailed design stage as part of the operational consent.
3. The applicant also proposed a condition requiring an air quality management plan but the Council did not accept reference to the methodology advocated by Dr Wright, as it was not a methodology approved by any government agency. The applicant argued the condition reflected the applicant's expert evidence.
4. There was also disagreement as to how long the applicant should be given to undertake remediation works if compliance with air quality requirements was not achieved. A two week period was proposed by the Council. The applicant sought one month claiming it would be impractical to complete remedial works within two weeks. The Council did not accept this amendment, given the serious health impacts on children of exposure to vehicle emissions if the limits are found to be higher, and urgent remedial action should be undertaken to protect the health of the children. Two weeks was considered sufficient time to take the required steps.
5. Finally, the Council sought compliance with noise requirements for a receiver at 1.5m height, being the height adopted for a child care worker, whereas the applicant maintained a receiver height for a child of 0.7m was more appropriate for the reasons outlined in their evidence.

Findings

1. The critical contentions to be resolved in this appeal relate to the fact that what is proposed is a sensitive use, a child care centre, adjoining two major roads. Such a location will result in adverse impacts on the children at the centre, unless those impacts can be satisfactorily resolved.
2. In this regard, on the threshold issues, the application fails on a number of jurisdictional grounds, even before the related merit tests are considered.
3. Firstly, concurrence was refused by the Regulatory Authority to the application and is a mandatory requirement to the granting of consent. The Court has the power to overturn this decision and issue the required concurrence. However, given the advice of the Regulatory Authority, and the circumstances, I fail to find any reason to do this.
4. Specifically, the issues raised by the Department in not granting concurrence were not adequately resolved or addressed by the applicant to the extent that would warrant the Court not accepting the reasons provided by the specialist Department in not granting concurrence to such an application. The weight of the evidence was that these reasons were, and remain, valid.
5. In particular, and most critically, there was no evidence offered by the applicant of any exceptional circumstances which warrant or require the use of this site for a child care centre necessitating simulated outdoor play space in lieu of the unencumbered actual outdoor play space which is required, but not able to be provided, given the form and location of the development proposed.
6. It is the locational constraints associated with the site chosen and the decision to retrofit an existing building, rather than designing a new development, that limits where usable and acceptable outdoor play areas can be located.
7. In this regard, I do not accept that a hostile external environment constitutes an exceptional circumstance, unless there are no other alternatives to locate a child care centre in the area, and the area requires such a centre. There was no evidence that this was the case.
8. To the contrary, I consider that it is likely that there are other sites within the B6 zone, or the locality, where such a use could be better located and where the constraints of retrofitting a commercial building, thus limiting where outdoor play space can be provided and appropriately treated, do not exist. I will deal with whether this is a relevant consideration shortly.
9. Whilst I do accept that, for example, in the Sydney CBD there are few options to provide outdoor play space other than in simulated environments, that is not the case in a suburban location, such as Silverwater, which is not a major commercial hub or constrained by existing high rise built form and limited available sites with sufficient area to provide outdoor play spaces with the required level of amenity.
10. The applicant simply failed to demonstrate what the exceptional circumstances are. I agree with Mr McDonald that the site is surrounded by a hostile external environment but I also agree with Mr Eastman that, if a site with a hostile external environment constitutes exceptional circumstances, there could be many poor outcomes in terms of where child care centres may be situated in the future, notwithstanding the site context.
11. Turning to the other grounds cited for withholding concurrence, for reasons which I will outline shortly, I do not accept that the air quality impacts were adequately resolved.
12. Nor do I accept that viewing a few trees in the reserves of heavily trafficked roads, or in proposed landscaping visible in gaps between acoustic walls, would provide the treed outlook for children from the simulated outdoor space as sought by the Department in order for concurrence to be issued.
13. Finally, the applicant did not adequately address the specific concern raised by the Department that there were child care vacancies 'in the surrounding suburbs', instead relying on an analysis which only considered the Silverwater postcode (2 suburbs) and with findings of likely demand not supported by other evidence before the Court.
14. In summary, there is no basis, nor any justification provided, to warrant overriding the decision of the Regulatory Authority, with specialised knowledge in child care centres, not to issue concurrence.
15. As concurrence is a jurisdictional issue which must be satisfied in order to issue consent, and I do not intend to provide that concurrence, the application fails and must be refused.
16. I now turn to the (related) second jurisdictional issue which I consider warrants refusal of the application, being insufficient evidence to demonstrate that the mandatory compliance requirements of the Infrastructure SEPP, or ISEPP, have been, or could be, met.
17. The most significant factor to consider in this regard, also being a mandatory requirement to consider under s 4.15(1)(c) of the EPA Act, is the suitability or appropriateness of the proposed site for the intended use, that use agreed by the parties to be a sensitive use. In this regard, the site is on the corner of two busy roads, one of which (Silverwater Road) is a classified State road carrying in excess of 60,000 vehicles per day, including a high percentage of heavy vehicles, and the other road also carries heavy vehicles servicing the industrial area which is directly opposite the site.
18. The applicant referenced the ISEPP Guideline advice that, at the strategic planning phase, the Council should have considered noise and air quality issues, to avoid or minimise the need to address these issues at the site specific stage, when deciding that child care centres should be permitted in the B6 zone, particularly given that all of the B6 zone in the vicinity adjoins classified roads. That is a reasonable criticism.
19. However, the ISEPP Guideline goes on to say that site selection and consideration of site layout and urban form can assist in reducing adverse health impacts from vehicle emissions and that considering traffic noise issues upfront at the site selection and design stage is essential for sensitive development, specifically including child care centres.
20. The applicant did not address why this particular site was selected or considered to be an appropriate location for a relatively large child care centre given that it is situated on the corner of a classified state road and a secondary busy road.
21. Nor did the applicant advise why the layout and form of the development did not minimise the potential adverse external impacts by designing a new facility which located outdoor play areas as far as possible from adverse sources of noise and air pollution and would enable better treatment of those areas, rather than proposing to retrofit an existing commercial building and limiting where and how such play spaces could reasonably be located and treated.
22. I understand that there would be cost implications for such a course of action and design outcome. However, considering the noise and air quality impacts on an agreed vulnerable group, being children, cost should not be the overriding consideration for such a development in such a location.
23. Instead the applicant sought the assistance of experts to recommend ways to try and resolve adverse impacts arising from the site's location whilst retaining the existing building on it. This included engaging experts, such as Dr Wright, to undertake assessments to determine how much additional air pollution would be acceptable for a child care centre on a site in a location where exposure to pollutants already exceeds the national average and where the adjoining roads not only carry significant volumes of traffic but, as I have indicated, a proportionally high percentage of heavy vehicles which have even more noxious emissions than standard vehicles.
24. In making these comments, I am not critical in what Dr Wright sought to do in this regard. Nor do I dispute that she has expertise in undertaking health risk assessments, or HRAs, to determine an acceptable level of emissions that can be received before adverse health impacts arise.
25. However, these assessments have generally applied to new major road projects where the objective is to minimise adverse emissions from these projects on adjoining land uses, where those uses already exist or are likely to occur. There was no evidence of such a HRA being applied to a site specific child care centre where the starting point is that elevated levels of 'toxic pollutants' (my words) already exist, there is no agreed regulatory standard to apply, but there is agreement that no such safe standard exists, particularly having regard to the sensitivity of the future occupants of the site.
26. I accept that Dr Wright applied a scientific and objective approach to her HRA notwithstanding what she was asked to try and determine, and she stood by her methodology in the absence of any regulated or accepted methodology or incremental criteria which should apply. She also stood by what she considered to be an acceptable risk outcome for exposure by young children to traffic emissions should the centre proceed, that being 1µg/m3, and recommended a design outcome to achieve this based on the air quality modelling undertaken by Mr Todoroski which suggested this criterion could be achieved 10m from the intersection. The applicant accepted this conclusion and undertook amendments to meet that requirement albeit under a retrofit scenario and notwithstanding the context constraints in which the development is proposed
27. However, by Dr Wright's own admission, there are margins for error in any HRA, including in her assumptions, and she accepted that any adverse consequential health impacts would be on a particularly vulnerable group. If any of the criteria in her assessment altered, it would likely be that even the 'compliant' emission levels she determined as being acceptable to be received at the centre could not be achieved.
28. The consequences of such an outcome were not in dispute as documented in the voluminous material provided by the Council demonstrating the risk to children's health and development from adverse exposure to traffic emissions. On this basis, I agree with the Council that the acceptable risk to children's health should not be set in any HRA as 'low' or 'moderate' but must be 'negligible' given the evidence of the health consequences, particularly for young children. This is in circumstances where exposure would be for extended periods of time and in the early years of a child's development, as would be expected in a child care centre.
29. Mr Todoroski's evidence was that he had tried to establish a setback that would result in acceptable levels of exposure to pollutants from road traffic but the regulatory authorities had resisted any numeric setback being set.
30. To accept such a setback now solely on the basis of Dr Wright's HRA, given the concerns with this assessment by another equally credentialed scientist, Dr Cowie, is not a course of action, or risk, that I am prepared to take given the vulnerability of the recipient group and the nature of the known pollution to which they will be exposed. There simply is no basis to put at risk the future health and development of some 96 children by allowing development on a site such as this.
31. It would be beneficial to all, and it would certainly assist this Court in regularly dealing with child care centres, to have an accepted numeric setback, or even an agreed HRA methodology to determine such a setback, from major roads, for emissions such as PM2.5 and NO2. However, I also understand the difficulties in dictating such a standard as Mr Todoroski encountered in trying to do exactly that.
32. What is required is for more rigorous and targeted academic and specialist regulatory analyses of such matters given the potential consequences to children's health and development of having no agreed standard or methodology to assist decision-makers in determining applications for such uses based on likely risk outcomes.
33. I accept that, in the interim, child care centres exist and are approved on such roads. However, in this instance, there are just too many development constraints which restrict the ability to minimise exposure to high levels of traffic emissions, too little robust and independent review to support the assessment undertaken and therefore its findings, and too many unknowns, for me to agree that acceptable health outcomes will result. If the HRA assumed outcome did not eventuate, what is proposed would result in unacceptable levels of exposure from traffic emissions and agreed adverse health consequences for a number of young children.
34. It is on this basis that I have some sympathy for the Council's position that, in the absence of scientific certainty as to the exposure levels that will be received at the child care centre but the high likelihood that pollution levels at the site already exceed national safe standards, and where the adverse health outcomes with excess exposure are known, the precautionary principle should apply, and the application be refused.
35. I am also concerned at the contradiction in Mr Todoroski's advice on this issue relative to the evidence he recently gave the Court in other proceedings as to the unacceptability of using sites on classified roads for child care centres where there is a high risk of exposure to pollutants. Yet he now considers this risk can be resolved by a 10m setback from those emissions despite the material tabled by the Council that indicates separations of between 100m and 500m are required to achieve adequate dispersion of emissions.
36. Finally, both HRAs and modelling are by their very nature predictive tools and not a guarantee of an actual outcome that will be acceptable. This is a site where any lesser outcome could have, based on the undisputed evidence of all of the experts, severe and avoidable impacts on the health and development of attending children and which is already exposed to elevated levels of air pollution. Therefore, as I have already indicated, in this instance, applying the precautionary principle of avoidance of such a risk, given the lack of scientific certainty of the extent of impacts but the known consequences of extended exposure on young children, is the only responsible decision the Court could make in terms of this application.
37. Imposing a condition to try and redress higher emission levels, if they are encountered, is not an appropriate mechanism to address a mandatory requirement to be met before the consent can be issued. It is also difficult to contemplate what retrospective works could in any event be undertaken to make emissions exposure 'compliant', without further adversely affecting the amenity of occupants of the centre, given the siting and layout of the development proposed.
38. I now turn to the other mandatory requirement to be met in the ISEPP, being noise exposure.
39. The revised acoustic modelling undertaken indicated that, even with the acoustic barrier and treatments proposed in the amended application, the noise levels would exceed the required maximum 55 dB(A) in the ground floor outdoor play area which is proposed to be used by the youngest children attending the centre, being in the age group of 0-2.
40. The applicant argued that this non-compliance could not however, be confirmed until the development was finished and, therefore, proposed that a condition of consent be imposed to ensure that, if 55 dB(A) was not met following construction, and prior to an occupation certificate being issued, ameliorative measures could and would be implemented. However, I am not persuaded, given there was no evidence to confirm this, that any such measures would achieve the necessary compliance or, if they did, to what extent the additional works required would have adverse impacts, such as on the amenity of (and outlook from) the outdoor play area, including to trees, or on the streetscape.
41. As with my findings on air quality, I do not consider that trying to make a development compliant post development approval is an appropriate approach when it is a mandatory consideration that the development not be approved unless I am satisfied that the design and mitigation measures will achieve the required outcome. The evidence indicated that noise compliance could not be achieved even with amendments to the application and the new mitigation measures proposed.
42. The applicant argued that the modelled non-compliances were 'marginal'. However, there is still non-compliance and, as with air quality, the modelled or assumed outcome could be better or worse than the actual operational outcome. However, in this application, there is no margin for error in terms of any worse outcome during operations given the vulnerability of the group being impacted and the mandatory requirements of the ISEPP.
43. Further, whilst it may be that compliance is demonstrated once the centre is operational, on the evidence, it would seem more likely that this will not be the case and ameliorative measures would be required.
44. In this regard, at best, the experts could only offer that it was 'within the realms of possibility' that the outdoor play space could achieve acceptable noise levels of 55 dB(A). That is no comfort that a noise compliant development could be achieved, and enough retrofitting was already proposed in the application to try and achieve compliance with criteria without also flagging likely additional retrofitting to ensure adequate amenity and safe noise exposure levels result in the future.
45. Therefore, whilst I accept that there have been examples where conditions of consent require auditing and/or monitoring once works have been undertaken in accordance with recommended acoustic measures, my experience has been that such monitoring or auditing is undertaken assuming that it will confirm that the approved works have resulted in compliant noise levels being achieved. Otherwise, consent should not have been issued in the first place.
46. However, in this instance, the modelling indicated non-compliance at the outset and it was suggested that the auditing/monitoring would provide the opportunity to determine that (likely) non-compliance as the starting point for proposing new ameliorative measures. That is not an appropriate application of conditions.
47. As with air quality emission levels, no matter how 'marginal' the non-compliance with acceptable criteria may be, the adverse impacts that could result will be on a vulnerable group, being young children, for extended periods at a time, which is what provisions such as cl 101 of the ISEPP seek to avoid.
48. In Antoine Street, the noise impact from the child care centre to adjoining residential dwellings was the issue. However, the basis for consideration of the acceptability of these impacts was the same. In this regard, the Senior Commissioner noted that, whilst amendments to the application had been made and had reduced some of the impacts, the changes did not overcome the problems arising from a retrofit of the existing built form to accommodate the proposed child care use.
49. At [24] and [25] she states: "24…However, the opportunity to reduce those impacts is, in this case, constrained by the fact that the applicant is trying to "retro fit" a new childcare use into an existing built form. In those circumstances, there are limited opportunities to maximise the separation of buildings and outdoor play spaces. Dr Tonin acknowledged this when he said it is simply not feasible to design features to position external areas to act as a noise barrier because the building shape cannot be changed… 25 With these constraints in mind the issue then becomes one of satisfactory mitigation of impacts. Accepting that the design and layout of the centre do not achieve the acoustic criteria…, the applicant relies on the "acceptable acoustic solutions" set out in the DCP to mitigate noise impacts. Measures, such as a noise barrier fence - albeit exceeding the 2m height in the DCP on the basis that this is acceptable because this is a sloping site, absorptive surfaces/materials in play areas, mechanical ventilation and fixed windows at the centre and acousticly treated windows at the adjoining residential receptors to minimise noise. The applicant also relies on measures which are explicitly discouraged by the DCP … for example; … restricting time periods outside and times of day."
50. The Senior Commissioner goes on to say, at [43], that, whilst she must assume compliance with conditions of consent, that does not displace the requirement to assess the reasonableness of a mitigation measure offered in any particular case based on the evidence. Hence her conclusion that, put simply, the proposal was not suitable for the site and she was therefore not satisfied, as required by s 4.15(1)(c) of the EPA Act, that the site was suitable for a child care centre.
51. Commissioner Bish drew the same conclusion in Lu Projects in terms of the unsuitability of a site for a child care centre on a classified road where the mitigation measures required to respond to the external environment would lead to poor amenity for the (vulnerable) occupants of the centre.
52. I draw the same conclusion with this application, which is a third jurisdictional reason why the application must be refused, namely that I am not satisfied, as I am required to be by s 4.15(1)(c) of the EPA Act, that the site is suitable for a child care centre.
53. This is, in essence, based on the same conclusions I reached in considering the mandatory requirements of the ISEPP. In summary, the development is of a type that is sensitive to traffic noise and vehicle emissions, it is not appropriately located and designed, and I was not satisfied that the measures to ameliorate potential traffic noise or vehicle emissions from the adjacent roads would adequately achieve that outcome. Accordingly, the application must be refused.
54. In coming to that conclusion, I accept that child care centres are not prohibited in the B6 zone. However, this does not mean that all sites in that zone are equally acceptable in terms of being an appropriate location for a child care centre even if they are all adjacent to a classified road. Not all sites are on the corner of a classified road and a secondary busy road which also services an industrial area. No site requires that a child care centre must comprise retrofitting an existing building which constraints the location of the only outdoor space that can be provided requiring it to be located immediately adjacent to two busy roads with high levels of air pollution and noise, the worst possible location for a children's outdoor play area.
55. Whilst I agree that it is not usually appropriate that the Court considers whether or not there is a better location for a proposed development, that is not the case in this instance where the Court is required to consider whether exceptional circumstances exist which warrant a particular site being given 'exemptions' from certain requirements which are in place to protect the amenity of children in such facilities.
56. I therefore believe it is relevant in such circumstances to consider whether or not better locations are available, if a demand for a child care centre in the area exists, where simulated outdoor open space is not required to be provided in lieu of the unencumbered outdoor play space because of what, I agree, is a hostile external environment and where the application responds to the environment in the design and nature of the development proposed.
57. Given I have determined that consent cannot and should not be issued as the jurisdictional pre-conditions to the granting of consent are not met, it is not necessary for me to address the other issues of concern to the Council with this proposal: such as the acceptability of the evacuation area; the appropriateness of the indoor play spaces or ventilation proposed; or the proximity of the site to an industrial area, notwithstanding that these concerns of themselves may also have been grounds for refusal, or contributed to those grounds.
58. It is therefore also not necessary for me to address the conditions in dispute.

Orders

1. The orders of the Court are: 1. Leave is granted to the applicant to rely upon amended plans. 2. The applicant is to pay the costs of the respondent thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 3. The appeal is dismissed. 4. Development Application No. DA 855/2017 for a centre-based child care facility at 24 Carnarvon Street, Silverwater is refused. 5. The Exhibits are returned other than Exhibits A, C and 1.

Jenny Smithson Commissioner of the Court

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: 04 September 2019