Daher v Penrith City Council

Land and Environment Court (NSW)|2024-04-25

JUDGMENT

COMMISSIONER: This is a Class 1 appeal of the refusal of DA22/1148 for the demolition of existing structures and construction of a two storey centre based child care facility (DA) at 23 Barker Street Cambridge Park (Lot 193 DP 13531) (site).
The Applicants, Nasser Daher and Zalfa Daher (Daher), appeal Penrith City Council's (Council) refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The key issues left in contention are whether the built form is consistent with the character of the area, acceptability of the impacts on adjoining neighbours and whether the landscaping and swale can co-exist in the same area to perform both their functions.

Amended Application

On 2 February 2024, leave was sought and granted by the Court to make the following amendments to the DA:

Basement rear setback increased from 1m to 4.09m to retain the three existing trees on the adjoining property,
Building setbacks increased from:
Ground floor rear from 14.96m to 15.14m
Ground and first floor front setback from 5.5m to 9.085m
First floor setback rear setback from 10.4m to 18.05m
Side setbacks changed from footpaths to landscaped areas

Site description and locality

The subject site is generally rectangular with a total site area of 929.03m2, frontage of 15.24m and depth of 60.96m. The site slopes to the rear.
In accordance with the Penrith Local Environmental Plan 2010 (PLEP), the site is zoned R2 Low Density Residential. The site is mapped as flood affected and within the overland flood map path.
Development in the area is generally characterised as older, established low density dwellings. As observed at the site viewing, and highlighted by the parties, new development in the area is starting to emerge. The Court was taken to various developments in the street and nearby streets, which included comparatively large dual occupancies (compared to existing development) with varying front setbacks of landscaping, trees and hard stand driveway access to garages. In particular, the developments at 41 Barker Street and 168 Oxford Street were observed.

Issues

The following contentions are said by Council in its Amended Statement of Facts and Contentions (ASOFAC) filed 16 February 2024 (Ex 1) to warrant refusal of the application:

Contention 1 - Site suitability due to the site's narrow frontage width and scale of development
Contention 2 - Inconsistency with the established and desired future character of the locality
Contention 3 - Insufficient landscaping
Contention 4 - Tree protection, retention and viable growth
Contention 5 - External and internal amenity
Contention 6 - Sustainable development
Contention 7 - Stormwater management and OSD design
Contention 8 - Flooding
Contention 9 - Evacuation arrangements
Contention 10 - Waste management
Contention 11 - Public interest
Contention 12 - Insufficient information.

On the basis of the joint expert reporting and amendments / further information provided during the hearing, it was agreed by the parties that contentions 4, 6, 9, 10 and 12 have been resolved. Contentions 7 and 8 in relation to stormwater and flooding have been resolved, subject to the evidence about the vegetation impacts on the swale.
The issues in dispute can be distilled as:

Built form and character,
Impacts to adjoining neighbours,
Ability for the swale and landscaping to co-exist and function in the same area.

On site viewing

The hearing commenced on site. The Court heard oral evidence from one objector who raised a number of issues which were generally consistent with the written submissions, discussed at [15]. Also detailed at [10], the parties drew the Court's attention to the site conditions, rear adjoining trees, adjoining development and development in the street. Observations of development in the street included the existing built forms and several newer developments with a focus on built form, landscaping, driveway/concrete areas and setbacks.

Public Submissions

The original development application made to the Council was notified between 16 December 2022 to 30 January 2023. Four submissions were received and a summary of the oral concerns from an objector were tendered (Exhibits 2, 3 and 4). The submissions raised the following concerns:

Overshadowing impacts to 25B Barker Street located to the rear of the adjoining site, including impacts on the solar system, landscaping and reduced house value
Request for a reduction to a single storey development
Out of character and presentation to the street
Number of child care centres in the area
Noise impacts, impacts when working from home and existing noise from site
Traffic impacts, including on street car parking
Alleged drug dealer in the street and associated anti-social behaviour

Expert Evidence

In accordance with its usual practice, the Court directed experts in planning, landscaping and stormwater/WSUD to confer in relation to nominated contentions prior to the commencement of the proceedings.
Expert evidence for the landscaping and aboricultural issues was submitted in a joint expert report (landscaping JER) (Ex 5) by Rebecca Surian and Scott Freeman for Daher and Donna Montgomery for Council. Oral evidence by some of the landscape experts was provided during the hearing.
Expert evidence for the stormwater and WSUD issues was submitted in a joint expert report (stormwater JER) (Ex 6) by Joseph Dagher for Daher and Ganesh Bista and Tim Gowing for Council. Oral evidence by some of stormwater experts was provided during the hearing.
Expert evidence for the planning issues was submitted in a joint expert report (planning JER) (Ex 7) by Jonathon Wood for Daher and Gavin Cherry for Council. Oral evidence by the planning experts was provided during the hearing.

The Planning Framework and Policies

In accordance with the ASOFAC, the following planning legislation, environmental planning instruments, development control plans and policies apply or are contented apply to the proposed development:

Environmental Planning and Assessment Act 1979 (EPA Act)
Environmental Planning and Assessment Regulation 2021 (EPA Reg)
State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)
State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI)
Chapter 3 Education establishments and child care facilities
Education and Care Services National Regulations
Child Care Planning Guideline 2021 (CCP Guidelines)
PLEP
Clauses 1.2, 2.3, 2.7, 4.3, 7.1, 7.4, 7.7, 7.30
Penrith Development Control Plan 2014 (PDCP)
Penrith City Council Stormwater Drainage Guidelines for Building Developments 2020
Penrith City Council Water Sensitive Urban Design Policy 2017
Penrith City Council Cooling the City Strategy

Issues - Built form, character and impacts to adjoining properties

Council pressed contentions 1, 2 and 5 that the amended DA is inconsistent with the established and desired future character of the area, that the site is unsuitable and that the first floor encroachments result in amenity impacts to the adjoining dwelling to the south (the front dwelling).
The further JER details the expert's agreement that the particulars in relation to privacy, overshadowing to the rear dwelling, building length, safety, deep soil, front and internal fences, internal amenity and the vent shaft have been resolved through the amended DA or through agreed conditions of consent.
SEPP TI Part 3.3 early education and care facilities contains the following relevant provisions: 3.22 Centre-based child care facility - concurrence of Regulatory Authority required for certain development (1) This section applies to development for the purpose of a centre-based child care facility if - (a) the floor area of the building or place does not comply with regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, or (b) the outdoor space requirements for the building or place do not comply with regulation 108 (outdoor unencumbered space requirements) of those Regulations. (2) The consent authority must not grant development consent to development to which this section applies except with the concurrence of the Regulatory Authority. … 3.23 Centre-based child care facility - matters for consideration by consent authorities Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development. … 3.25 Centre-based child care facility - floor space ratio (1) Development consent must not be granted for the purposes of a centre-based child care facility in Zone R2 Low Density Residential if the floor space ratio for the building on the site of the facility exceeds 0.5:1. … 3.26 Centre-based child care facility - non-discretionary development standards (1) The object of this section is to identify development standards for particular matters relating to a centre-based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters. (2) The following are non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of a centre-based child care facility - (a) location - the development may be located at any distance from an existing or proposed early education and care facility, (b) indoor or outdoor space (i) for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies - the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or (ii) for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies - the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause, (c) site area and site dimensions - the development may be located on a site of any size and have any length of street frontage or any allotment depth, (d) colour of building materials or shade structures - the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area. (3) To remove doubt, this section does not prevent a consent authority from - (a) refusing a development application in relation to a matter not specified in subsection (2), or (b) granting development consent even though any standard specified in subsection (2) is not complied with. 3.27 Centre-based child care facility - development control plans (1) A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility - (a) operational or management plans or arrangements (including hours of operation), (b) demonstrated need or demand for child care services, (c) proximity of facility to other early education and care facilities, (d) any matter relating to development for the purpose of a centre-based child care facility contained in - (i) the design principles set out in Part 2 of the Child Care Planning Guideline, or (ii) the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates). (2) This section applies regardless of when the development control plan was made.
Part 3.3 of SEPP TI contains a number of sections that either override or displace planning controls.
Section 3.26 of SEPP TI contains non-discretionary development standards in relation to location, indoor/outdoor space, site area and dimensions and the colour of buildings. This section prevents a consent authority for requiring more onerous standards for these matters. 'Non-discretionary development standards' is defined in s 4.15(6) of the EPA Act as being standards in relation to an environmental planning instrument (EPI) or regulation.
EPI's are defined as LEP's and SEPP's (s 3.13 of the EPA Act). A DCP is not an EPI. With respect to the PLEP, there are no development standards relating to the provisions of s 3.26 of SEPP TI.
Section 3.27 of SEPP TI is in relation to DCPs. A DCP control, requirement or standard does not apply where it relates to any of the matters referred to in this section. DCP controls in relation to building height, side and rear setbacks or car parking rates are exempt from exclusion (s 3.27(d)(ii)). Referred to in 3.27(1)(d), parts 2-4 of the Child Care Planning Guideline (CCPG) are detailed and consider a wide range of matters. These include site suitability, character, site dimensions, location, road conditions, landscaping, acoustic, privacy, environmental characteristics, pick up/drop off areas, feasibility, colours/materials, fences, amongst others.
As a result, and jointly submitted by the parties, there are no relevant controls for child care centres in the PDCP that apply in relation to this issue except for the allowance in s 3.27 for height, setbacks and car parking rates.
Council submits that the references in the expert evidence to the PDCP can be considered as a guide, as the CCP Guidelines emphasise a site's context, character and residential amenity in a low density zone.
Daher submits that many of the controls relied upon by Council do not apply.

Evidence

The Council submits that the amended DA is unsuitable for the site, inconsistent with the low density residential character of the area and proposes an uncharacteristic basement entry and first floor projection which is disproportionate to the façade. The amended DA is also said to cause overshadowing and visual impacts to the adjoining neighbour at 25A Barker Street (the front dwelling) as a result of the breaches to the building envelope control.
Mr Cherry, town planning expert for Council, considered that the site itself was unsuitable for this form of development based on its attributes and constraints. These included the site frontage, which at 15.24m did not meet the 22m frontage control of the PDCP or a hypothetical 18m site which the planning experts agreed would accommodate the proposed development, basement car parking and increased landscaping in the side setbacks. With reference to the CCP Guidelines and the PDCP, Mr Cherry undertook an analysis of minimum basement, built form and landscaping calculations and said that a development with those characteristics could not be accommodated on a site of less than 16.2m wide. Therefore, the site was not suitable for this form of development. The two metre landscaping calculation has been informed by the PDCP's multi dwelling controls for basement carparking on the basis that the height, length and provision of basement carparking is more akin to a multi-dwelling form of development than a dwelling or dual occupancy.
In addressing the CCP Guidelines, Mr Cherry says that the existing and future character should be informed by existing development and controls for anticipated built forms including building setbacks, landscaping setbacks, building length, building envelope and streetscape presentation. He says that the existing character is predominantly single dwellings with building lengths between 10-15m. Mr Cherry acknowledges two other developments that reach up to 27m in length but says these are still smaller than the proposed development. Mr Cherry says that future development in the area will most notably be for dwellings and dual occupancies in landscaped settings up to 50%.
Mr Cherry says that the site frontage and proposed built form do not provide adequate side setbacks and presents an incongruent relationship with the existing single storey traditional dwellings. The basement entry and the cantilevered, bulky first floor addition accentuate the disproportionate built form. As the driveway occupies more than 50% of the front façade, the built form is inactive, lacks front landscaping and offers little passive surveillance. Mr Cherry says that the building length, its blank wall, building envelope encroachments, overall massing and visibility from the rear yards of adjoining development is incompatible and disproportionate to any development in the area. Mr Cherry says that the CCP Guidelines emphasise a contextual response and that the scale and massing of the proposed development does not respond to the low-density context of Barker Street or future character of the area.
Council submits that the amended DA does not present as a typical dwelling, presents as two and a half storeys and is further incompatible due to the large first floor overhang, driveway width and fire stairs location.
Mr Cherry says that insufficient and inconsistent information has been provided regarding the overshadowing to 25A Barker Street. On the current shadow diagram plans, the non-compliant building envelope results in unreasonable overshadowing to the front dwelling at 25A Barker. Mr Cherry says that the two southern windows are impacted by the proposed development from 9am to 3pm. Mr Cherry said the first floor should be amended to retain solar access.
Ms McKelvey submits that there is an inconsistency between the 2D and 3D shadow diagrams that have not been resolved by Daher and that a more skilful design would resolve the issue.
Mr Wood, town planning expert for Daher, says that the site frontage and character issues are related. Mr Wood says that as the child care provisions within SEPP TI 'turn off' certain planning controls, the only relevant controls in the PDCP are side and rear setbacks and car parking. He says that part D5.2 Child Care Centres in the PDCP does not specify setbacks or landscaped areas and that the CCP Guidelines revert to the dwelling controls for this zone. As set out at paragraph 52 of the planning JER, Mr Wood says that the amended DA complies with or exceeds the minimum setback controls and has a minor breach to the building envelope control.
Mr Wood relies on an analysis of the streetscape to support the proposed building length, which he says is a function of the property allotment. At paragraph 55 of the planning JER, Mr Wood agrees that most of the existing dwellings are modest however newer development in the local area contain longer building lengths between 24m to 31m.
Mr Wood says that whilst the proposed development is larger than existing development, most dwellings were likely built in the 1960's and redevelopment is expected to occur. Mr Wood relies on the compatibility planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, which sets out key compatibility elements including height, setbacks and landscaping. Mr Wood outlined a large visual catchment comprising the street, Richmond Road, Eton Road and Oxford Street.
Mr Wood says that the proposed development is compatible, with a greater emphasis on the future character. Mr Wood says that new development will be larger, two storey built forms with increased hardstand from dual driveways and less landscaping in the front setback, referring to examples of newer development at 168 Oxford Street and 41 Barker Street. He says that the proposed development is compatible with the future character through its two storey building, façade articulation, roof form and residential colours and materials which have taken cues from existing development. In cross examination, Mr Wood agreed that the building envelope for 41 Barker Street appeared to comply with the building envelope control. Mr Wood's evidence about landscaping is that the proposed development has a consistent landscaping to hardstand ratio with recent redevelopment.
Regarding 25A Barker Street, Mr Wood's evidence is that the amended DA has considered its context and surroundings, and further inset the first floor away from the southern neighbour and the rear. The view from the sun diagrams demonstrates solar access to the majority of the southern windows for at least three hours, as required by Part D2 2.2.9(e) of the PDCP. Mr Wood says that the first floor play area does not cause any acoustic or privacy concerns as it is further setback from the side boundaries, complies with the building envelope control, contains privacy screening and adequate acoustic measures.

Consideration

For the reasons that follow, I accept that the site is suitable for the proposed development and that the proposed built form, as amended, is acceptable.
The objectives of the CCP Guidelines seek to promote quality design, compatibility with the context of the streetscape and land uses, minimise adverse impacts to the local area and provide certainty to stakeholders on the requirements for a proposed child care facility.
The design quality principles in Part 2 of the CCP Guidelines provide guidance on how proposed development is to consider its context, built form, landscaping and amenity (amongst other principles not directly relevant to this issue in dispute). Principle 1, Context, of the CCP Guidelines encourages a responsive approach to enhance the qualities of the area.
Principle 2, Built Form, seeks a well designed built form as set out in the below extract: 'Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the surrounding area (emphasis added). Good design achieves an appropriate built form for a site and the building's purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Good design also uses a variety of materials, colours and textures. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. …'
Principle 5, Landscaping, seeks an integrated approach between the built form and landscaping that is a contextual fit within the character of the streetscape and area. The principle sets out that landscaping is an asset for learning and contributes to the natural features, coordination of water management and preserving green networks. Principle 6, Amenity, is concerned with internal amenity as well as the amenity of neighbouring properties.
In considering the principles and the matters for consideration in Parts 3 and 4 of CCP Guidelines, it is apparent that when designing a child care centre, the CCP Guidelines place an emphasis on compatibility with the local character and impacts on adjoining neighbours when located in low density residential areas.
In considering compatibility with the local area, I'll firstly address the evidence relating to utilising the multi dwelling controls as a guide. Council submitted and Mr Cherry gave evidence that the proposed built form could be considered as a similar overall envelope that featured basement parking that is akin to multi dwelling development. I understand the temptation to seek guidance from those controls, particularly where there might be a lack of planning controls relating to this aspect of the development. However, I accept Daher's submissions that the controls do not apply and do not assist as the proposed development is a child care centre and multi dwellings are not permissible in the zone. Therefore, the multi dwelling controls do not provide relevant guidance to the character of the area or anticipated built forms in the zone.
I accept Daher's submissions that this is consistent with the decision of Gray C in Carpenter Street Centre Pty Ltd atf The Carpenter Street Centre Trust v Penrith City Council [2024] NSWLEC 1005 (Carpenter). Consistent with Carpenter, I accept that the 50% landscaping control for dwellings does not apply as the CCP Guidelines provide guidance on landscaping (s 3.27 of SEPP TI).
I also accept Ms McKelvey's submissions that the PDCP's controls that inform the character of the area and zone can be relevant in understanding the desired character.
In relation to the character of the area, I accept the mostly agreed evidence of the experts that existing development is primarily older, low density single storey dwellings. Whilst I accept that the proposed development will be larger than most, if not all, existing development in the area, I find that the existing development will redevelop in due course and greater weight should be given to the desired future character. This is consistent with Principle 2 of the CCP Guidelines, that well designed built forms will achieve a scale that is consistent with the existing or future design character of an area. I accept Mr Wood's evidence that the amended DA incorporates some elements of the existing character, including the roof pitch, articulated form and selection of materials as sought by C5 of the CCP Guidelines.
In my view, the two key contrasting components for character are the proposed basement and building length.
In relation to the basement, I accept that there are no basements in the local area in this zone. However, the PDCP does not contain any planning controls restricting basements for dwellings and dual occupancies. The proposed basement will be a new element, however consistent with Ms Nurpuri's submissions, not incompatible with the area's character just because it is new. Given that the planning controls permit basement parking, the future character contemplates this design element emerging into the streetscape. I prefer Mr Wood's evidence that the proposed hardstand to landscape ratio is consistent with likely future development (be it for basements or dual driveways leading to garages for dual occupancies) and that adequate landscaping with appropriate plantings have been proposed in the compliant setbacks.
As ultimately amended, the issues raised about the proportion of the basement to the front façade as well as first floor projection are not so great as to warrant refusal. The architectural plans show that the basement entry would comprise approximately half of the front façade. Whilst I accept that parking facilities should not dominate a front façade, the width of the basement entry is not abstract from what is permitted for garages and other low density development in the PDCP, including various controls for garages to be less than 50% of the frontage or less than 6m in width. I find that the reduced first floor projection assists in this regard and reduces the perceived visual impact of the descending basement driveway on the front façade. The proposed basement entry and first floor projection impacts on the front façade do not overwhelm the façade or warrant refusal.
In relation to the building length, reduced to 33m in the amended DA, the resultant rear setback is 15.14m on the ground floor and 18.05m to the first floor. The minimum rear setback control of 6m is met (Part 2.1.2(1)(e) of the PDCP). The adjoining sites to the south contain rear detached dwellings. The PDCP controls for dwellings and dual occupancies prefer development to face the street with backyard landscaping. The PDCP also contains controls for front and rear configured dual occupancy development with rear backyards, consistent with the existing development to the south. There are no specific building length controls for either form of development, apart from building articulation controls. The PDCP therefore does anticipate buildings within the rear of a site, so long as they provide a rear backyard element and are articulated.
I accept Mr Wood's evidence that the building length has been further setback from the side boundaries, is adequately articulated to minimise the visual bulk impact to adjoining neighbours and contains landscaping along the side and rear boundaries. The ground floor play area occupies approximately 18.4m of the rear area (architectural plans, dwg 10), providing a built form facing the street and backyard area as envisaged by the PDCP for low density residential development. Adjoining neighbours to the south currently demonstrate buildings at the rear of their sites, which remains consistent with the PDCP. The proposed building extending closer to the rear will not be alien in this context.
As required by C14 of the CCP Guidelines, setback controls and the context for dwellings in low density areas should be observed. The experts agree that the PDCP's side and rear setbacks have been met. In dispute is the building envelope control and whether the objectives have been met notwithstanding numerical non compliance.
I accept Mr Wood's evidence and Daher's submissions that the amended DA meets the objectives of the building envelope control and that the impacts to the front dwelling at 25A Barker Street are reasonable. The planning experts agreed that overlooking has been resolved though privacy screening and there is no dispute about acoustic privacy. In the further JER, the planning experts ultimately agreed that adequate landscaping had been provided.
I acknowledge Mr Cherry's evidence that elevational shadows can assist in determining the extent of overshadowing impacts. However I accept that the view from the sun diagrams (architectural plans dwgs 43-45) sufficiently demonstrate the extent of solar access and overshadowing impacts. When assessing overshadowing, 2D overshadowing diagrams are often needed to be supplemented by either elevational diagrams or view from the sun diagrams to demonstrate the different shadow impacts on the horizontal and vertical planes. I accept that the solar access diagrams supporting the amended DA are accurate and accept Mr Wood's evidence that 25A Barker Street's private open space and southern windows receive solar access for at least three hours on 21 June as per C11 of the CCP Guidelines and as sought by Part D2 2.2.9 (e) of the PDCP.
I accept that the visual impacts from the building envelope breach, including the privacy screening, are minimised through the proposed materials and articulation. The breach does not impact on the ability to provide vegetation and separation between the built forms and I find that the amended design has appropriately responded to the constraints of the site.
I am unable to accept Council's position that the site is fundamentally unsuitable for a child care centre development. As detailed above, this is due to an absence of adverse environmental impacts on adjoining neighbours and the streetscape, and demonstrated ability that the proposed child care centre would be functional.
Accordingly, I find that the amended DA has overcome the issues of character, built form and amenity impacts raised by Council.

Issue - Swale and landscaping

Council submitted that most of the stormwater and landscaping issues had been resolved through the amended DA and joint expert reporting. The existing vegetation is not in issue, with the large trees to the rear on the adjoining property sufficiently protected.
The remaining issues pressed by Council was the ability of Daher to maintain the landscaping along the northern boundary and located in the swale in a manner that achieved both purposes of providing stormwater management and sufficient landscaping along the boundaries. Council raised issue with the reliance on the implementation of a detailed maintenance plan, ability to reach some areas of the swale for maintenance and the impacts to neighbouring properties if it isn't strictly implemented (Ex M). The swale and its surrounds includes stormwater infrastructure, dwarf walls, pool fencing (for safety) and a variety of dense vegetation to satisfy the CCP Guidelines. Council submits that the swale structures, dwarf walls and density of planting would result in physical entry in and through the swale being difficult or impractical.
The stormwater experts gave evidence during the hearing about the amended engineering plans and swale maintenance plan. Mr Bista for Council gave evidence that the maintenance plan was needed to ensure that plant or other debris will not raise the top water levels and not cause flooding to the adjoining neighbour. Mr Bista agreed that the maintenance plan addressed the concerns raised, subject to the landscaping experts' evidence on vegetation and that access to the swale can occur for that maintenance.
Mr Dagher's evidence was that the modelling that informed the swale maintenance plan had considered based on a worst case scenario for the upkeep and maintenance of the swale.
The evidence of Mr Dagher was that appliances such as vacuums or other devices could be implemented, but some areas would likely require physical entry.
As a result of the further JER, an amended landscape maintenance plan was also prepared (Ex L). Ms Montgomery, landscape expert for Council pressed her concerns that the growing conditions in the swale would not allow quality tree growth and that the proposed vegetation would drop debris into the swale that would impact on the flow of water. Ms Montgomery said that the depth of the swale below natural ground level was unusual, may create maintenance issues and may impact on tree growth as the roots would be located in poorer parts of deeper soil that are not conducive to growth or root drainage. This may result in the vegetation reaching 2m in height as opposed to 3.4m.
Ms Montgomery considered that the vegetation would need a gap in the foliage to allow maintenance of the swale and expressed concerns about a vacuum or the like to physically access the swale for maintenance due to the number of trees and plants proposed. Ms Montgomery's concerns included that the proposed conditions of consent for ladders and the like into the swale might reduce the proposed landscaping, which would not meet the landscaping and shading sought by the CCP Guidelines.
Ms Surian, landscape expert for Daher gave evidence that the landscape maintenance plan is adequate and further gates (proposed in the conditions of consent) could be of benefit. Some of the vegetation would be pleached close to the swale to expose some of the trunk and still provide foliage above a certain height.
Ms Surian was of the view that adequate space between the vegetation would be provided for maintenance including ladder access. She considered that the species of trees and shrubs would grow in the swale conditions. Whilst they would not grow to their full height, the vegetation will reach up to 3-4m as the species are designed to be grown in these conditions and tight spaces. The mix of smaller vegetation in planters and larger shrubs up to 3-4m would provide planting for the children in the playground and the pleached landscaping would be visible to adjoining properties. Ms Surian accepted that the vegetation of 3-4m would likely be pleached to a height of 1.8m and that vegetation growth might be limited due to the clay soils, even with the additional excavation of 0.7m in the draft conditions of consent.

Consideration

In considering the evidence I accept Ms Surian's evidence for the reasons I set out below, however the evidence of Ms Surian and Ms Montgomery was not vastly different.
The difference between the parties was ultimately about the practicality of the maintenance plans and the ability of the vegetation to grow in the swale. Both experts generally agreed that vegetation would grow, the difference was primarily about the extent of growth in order to meet the CCP Guidelines. I accept Ms Surian's evidence that the vegetation will likely grow to 3-4m as vegetation has been selected based on the known soil conditions of a swale. I accept that the additional excavation and the pleaching of those shrubs will still provide adequate landscaping as viewed from adjoining properties, and that other vegetation shown on the architectural and landscaping plans will provide further landscaping as viewed from the playground area. With consideration of the evidence, the landscaping plans and landscape maintenance schedule, I accept Daher's evidence and submissions that the landscaping proposed can be achieved and therefore will meet the requirements of the CCP Guidelines.
In relation to the landscaping maintenance and impacts of vegetation on the swale maintenance plan, I accept Ms Surian's evidence that the landscape maintenance plan can be implemented. Whilst I accept that the area will be tight when navigating through the tree trunks, dwarf walls, swimming pool fencing and other vegetation and debris that needs to be removed, there is no opposing evidence that the maintenance plans can't be implemented. The exact types of operational equipment to remove debris do not need to be demonstrated at this stage. Acknowledging that this swale operates to manage both flooding and overland flow, I accept that the landscaping and swale maintenance plans have been included and agreed as operational conditions of consent. I accept Ms Nurpuri's submissions that it must be assumed that these will be complied with.
In finding that the vegetation maintenance plan is acceptable, there are no separate concerns from the engineers to be resolved. I therefore find that the stormwater and landscaping issues have been satisfied as the proposed landscape and swale maintenance plans are adequate, are suitable for their respective functions and will not cause the other to fail when complied with. The experts have agreed that the other flooding, stormwater and landscaping issues have been resolved, which I accept.

Community submissions

Four objections were received from the community and oral concerns heard at the commencement of the hearing, which I have considered below: 1. In relation to character and scale, I have set out at [21] - [63] the evidence and reasons why I accept that the amended DA is compatible with the future desired character of the area. The reduced size of the built form minimises its impacts and is not of a scale that would warrant refusal. 2. As a result of the amendments to the DA and reduction in building length, the planning experts agreed in the further JER at paragraph 44 that the adjoining rear dwelling at 25B Barker Street receives adequate solar access. I accept their evidence as supported by the architectural plans. 3. In relation to the potential reduction in house values, there is no evidence to support this concern. 4. In relation to the objection to the number of child care centres in the area, the planning controls allow child care centres to be located any distance from other child care centres (s 3.26(2)(a) of SEPP TI). A DA is not able to refused on this basis. 5. The parties agree that noise, traffic and parking are not issues that warrant refusal of the amended DA. I have considered the Amended Noise Impact Assessment prepared by Day Design Pty Ltd dated 20 March 2024 (Noise Report), Updated Parking and Traffic Impact Assessment prepared by Stanbury Traffic Planning dated 20 March 2024 (Traffic Report) and amended Statement of Environmental Effects prepared by Think Planners dated 25 January 2024 (amended SEE). I accept the conclusions within the Traffic Report that the amended DA provides the required amount of car parking spaces, provides safe entry and exit from the site and that the local road network has capacity to operate during peak periods. 6. I accept the conclusions of the Noise Report that the inclusion of outdoor sound barrier fences and implementation of recommendations to manage noise in the outdoor areas through a Plan of Management will not exceed the relevant noise guidelines. The Plan of Management prepared by Think Planners dated 20 March 2024 and the proposed conditions of consent at Annexure A incorporate the recommendations and I therefore accept that the noise generated from the proposal will be reasonably managed. I have also considered that the operating hours of the child care centre are between 7am-6pm Monday to Friday with staff permitted on site slightly beyond those hours. Noise would therefore not be emitted on weekends or in the evenings. 7. With respect to the concerns about the alleged drug dealer in the street and associated anti-social behaviour, there was no evidence provided to support the concern.
Based on the above, I find that the amended DA has resolved most of the concerns raised. The other objections do not warrant refusal of the amended DA.

Issue - Public interest

Contention 11 public interest is predicated on the other issues in dispute and the submissions received from the community. Having found that the amended DA has addressed the issues in dispute and the concerns raised in the submissions, this contention therefore has also been resolved and does not warrant refusal of the application.

Conditions of consent

The following conditions of consent remain in dispute and I find as follows: 1. The deferred commencement condition requires redesign of the southern elevation of the proposed development to comply with the building envelope control. I accept that the deferred commencement condition should be deleted as I have found that the impacts from the building envelope breach are reasonable. 2. Condition 33(g) is in relation to requiring a landscape maintenance plan detailing the frequency of cleaning to ensure the swale is not obstructed by debris and is effective at all times. Daher says the information has already been provided, Council presses the concern. The landscaping maintenance plan does include a schedule of maintenance and frequency. However given the stormwater management implications if the landscaping debris is not properly managed, I accept that further details at the construction certificate stage should be incorporated. For example, the detail should include further details on the characteristics of the selected species for dropping debris, likely amount of debris and mitigating risks so that the swale functions effectively at all times (such as additional maintenance after a storm event). The proposed condition is to remain. 3. Conditions 107 and 108 proposed a change of wording between 'Operational Management Maintenance Manual' (Council) and 'Swale Maintenance Schedule' (Daher). Condition 38, unopposed, requires the preparation of Operational Management Maintenance Manual in relation to the swale and stormwater treatment. Considering that there are other unopposed conditions of consent to create a manual and the importance of the swale functioning correctly, I accept that the Council's proposed wording for conditions 107 and 108.

Preconditions to granting consent

Having made findings that the issues in dispute do not warrant refusal of the amended DA, I also find that there are no jurisdictional barriers to granting consent as summarised below. Except where previously addressed in the issues, the parties agree that these matters have been satisfied.
I have considered s 4.6 of SEPP RH and the Preliminary Site Investigation Report prepared by Environmental Consulting Services dated 11 September 2023 (PSI). The PSI confirms the sites previous uses as residential and unlikely to be contaminated. The recommendations for asbestos removal protocols during demolition have been included in the conditions of consent at Annexure A. I am satisfied that s 4.6 of SEPP RH has been addressed.
In relation to SEPP TI, I have considered and find that ss 3.23, 3.26 and 3.27 are met on the basis of the amended SEE, the planning JER and further JER. The architectural plans demonstrate that the proposed FSR is 0.36:1, below the maximum 0.5:1 permitted by s 3.25. I have considered the CCP Guidelines and relevant regulations and find that the evidence demonstrates that the amended DA is consistent with the provisions.
It was agreed by the parties that the proposed development is permissible in the R2 zone and that the other relevant zone objective to provide services to meet the day to day needs of residents is met. As previously set out in considering the issues of the proposed built form, I have had regard to the objectives in relation to future character and amenity. The amended DA is below the maximum permitted building height of 8.5m as evidenced on the architectural plans.
Clause 5.21 flood planning of PLEP applies. I accept the agreement of the stormwater experts and am satisfied that the further flood modelling, amended engineering plans, swale design and maintenance schedule meet the provisions. Based on the oral evidence of the engineers, I am satisfied that the climate change provisions of cl 5.21 have been addressed by the amended DA, including consideration of potential, but as stated by the experts, unlikely increases in flooding impacts.
Clause 7.4 sustainable development of PLEP applies. I have had regard to the principles and consider the amended DA meets the principles as supported by the ESD Assessment Report prepared by Senica Consultancy Group dated 20 March 2024 and agreed in the further JER.
Clause 7.30 Urban heat applies to the proposed development. I have previously accepted the landscaping evidence of Ms Surian that the landscaping can be maintained and this aspect has therefore been satisfied. In relation to the other provisions of cl 7.30, I am satisfied that the amended DA addresses the provisions as demonstrated by the suite of stormwater reports and amended SEE.
Owners consent accompanied the Class 1 appeal.

Conclusion

In finding that the amended DA is compatible with the character of the local area, will not unreasonably impact adjoining properties, provides adequate landscaping and stormwater management and meets the preconditions to granting consent, I find that there is no reason for the amended DA to be refused.
I accept Daher's evidence that the issues in dispute have been overcome through the amended DA and appropriate conditions of consent. The amended DA is to be granted development consent, subject to the conditions of consent at Annexure A.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development application number 22/1148, as amended, for the demolition of existing structures, vegetation removal and construction of a two storey child care facility for 50 children over basement parking at 23 Barker Street Cambridge Park NSW 2747, is determined by the grant of development consent subject to the conditions at Annexure A. 3. The exhibits are returned, except for Exhibits A, B, C, L and 1.

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: 29 August 2024

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Cases Cited (2)