DVCI Pty Ltd v City of Parramatta Council

The proposal

1. These proceedings relate to the amended development application filed with the Court on 12 December 2019 for the demolition of two existing dwellings and associated structures, tree removal and the construction of a new 76 place child care centre with basement parking for 19 vehicles. The main changes between the amended DA plans (Ex B) and the original application refused by Council are: 1. The number of children was reduced from 95 to 76 and the number of parking spaces reduced from 22 to 19. 2. The building footprint was reduced slightly in size and the building broken into two parts; the eastern portion comprising a part single storey and part double storey component, and the western portion comprising a single storey component. The roof terraces of the single storey components remain as outdoor play spaces, albeit slightly reduced in area. The two portions of the split building are linked at ground level by a recessed breezeway, with awning and access stair at the rear, and linked at first floor level by a pedestrian bridge. The pedestrian bridge provides access from the second level of the eastern component of the building to the outdoor roof terrace on the western component. 3. The 'front' building setback to Rope Street has been increased by approximately 1.5 metres to 6.5 metres, and the outdoor play space in that setback has been removed and replaced with landscaping. 4. The brick fence on the Ryan Street frontage has been setback 1.0 metres from the street boundary, reduced in length and curved adjacent to the pedestrian entry, and additional landscaping provided between the wall and the street. 5. The previous flat roof form of the two-storey eastern portion of the building has been amended to provide a pitched roof, and planters introduced on the perimeter of the first floor outdoor play spaces.
2. For the reasons set out in this judgment the proposed development as amended is acceptable for this site, subject to conditions. In reaching this decision I have taken into consideration the written evidence of the town planning experts Mr Jonathon Wood (for the Applicant) and Mr Stuart McDonald (for the Council), and the child care experts Ms Lynda Campbell (for the Applicant) and Ms Wendy Shepherd (for the Council), as set out in the combined Joint Report of the above four experts dated 24 April 2020 (Joint Report) tendered as Exhibit 3 (Ex 3), and their oral evidence; the written evidence of acoustic experts Mr Stephen Gauld (for the Applicant) and Mr Richard Heydon (for the Council) as set out in their Joint Statement dated 14 April 2020 (Acoustic Statement) tendered as Exhibit 4 (Ex 4) and their oral evidence, and other plans and reports tendered in the proceeding, and in particular the Traffic and Parking Report dated 5 December 2019 (Ex G), the Plan of Management (Ex J), the Landscape Plans dated 12 December 2019 (Ex C) and the 'bundle' of contamination reports (Ex M).
3. I have also taken into consideration the relevant matters of the various statutory instruments and matters for consideration under s 4.15 of the EP&A Act and had regard to the oral submissions of objectors made at the Court view on 5 September 2019 (a record of which was tendered as Exhibit 7), my own observations of the site and its environs taken at the Court view on 5 September 2019, the public written submissions in response to the amended application (Tab 21 of Ex 2, and Ex 7) and the Parties' submissions in the hearing.

The site and setting

1. The site comprises two allotments on the northern side of Ryan Street at its T intersection with Rope Street. The address of the combined property is 1-3 Ryan Street, Dundas Valley and the land is legally described as Lot 992 in DP 36696 and Lot 990 in DP 36696. The site has an irregular reverse L shape with a total area of 1,260m2. The southern boundary fronting Ryan Street is 36.88m wide and the western frontage to Rope Street is 15.85m (excluding the splay corner). The site depth from Ryan Street varies from an average of 20.42m on the western portion to an average of 46.89m on the eastern portion.
2. The site is occupied by two single storey detached dwelling houses, and other structures or outbuildings, as shown on the site survey (Ex A, Tab 7). Vehicular access is currently provided to 1 Ryan Street via Rope Street adjacent to the northern boundary with 8 Rope Street, and to 3 Ryan Street via a driveway adjacent to the eastern boundary with 5 Ryan Street. The site survey also locates the adjoining houses in Rope and Ryan Streets, a number of trees and shrubs on the site, trees on adjoining properties and street trees in Ryan Street. The contours and numerous spot levels on the site survey reveal a gentle slope from east to west, with a fall of approximately 3.5m from the south-east corner to the north-west corner.
3. The site, its context and relationship to other properties in the locality are illustrated on the photographs in Annexure H of the Joint Report (Ex 3). The first photograph in Annexure H is the aerial photograph reproduced below, which gives an overview of the site and surrounding development.

The site view and lay submissions

1. There was no site inspection held as part of the hearing due to the COVID-19 Pandemic Arrangements Policy restrictions in place at the time, although I had the benefit of inspecting the site at the s34 conciliation conference on 5 September 2019. The site view was attended by counsel and instructing solicitors for each of the Parties, along with the Applicant's town planner, acoustic engineer and geotechnical engineer and Council's internal town planner, engineer, landscaping arborist and external acoustic engineer. At the site inspection it was possible to view the exteriors of the existing buildings and rear yards of the site, and from there the adjoining properties, as well as the streetscape and immediate locality as viewed from the street.
2. Written submissions from members of the community, to both the original DA and the amended DA, were provided to the Court (Tabs 19 and 21 to Exhibit 2). Oral submissions, relating to the original DA, were taken at the site inspection. The oral submissions of the seven objectors who addressed me at the site view in September 2019 were noted by the Parties, and a written record agreed between the Parties was provided to the Court following the hearing (Ex 7).
3. Issues of concern as expressed in the written and oral submissions of objectors may be summarised as: 1. Traffic and related impacts, including increased traffic volumes in congested local streets, the narrowness of those streets, impacts on intersections, especially those providing access from the regional roads, lack of street parking and additional demand for street parking, vehicular and pedestrian safety, access for emergency vehicles, and poor proximity to public transport. 2. The land use as a child care centre is unacceptable on this site and in this locality, where there is an abundance of child care centres. The proposed child care centre is a commercial, non-residential use that is too large and out of character in the area. 3. Noise associated with children's play, traffic and associated drop-off and pick-up activity, plant and equipment. 4. The design and scale of the building, including the second storey, is out of character with the existing single storey houses and the design does not comply with the Parramatta Development Control Plan 2011 (DCP) controls for child care centres. 5. Privacy and overshadowing impacts on adjoining neighbours. 6. Site contamination. 7. Fire safety and lack of an evacuation plan.

Parramatta Local Environmental Plan 2011

1. The site is located within the Zone R2 - Low Density Residential (R2 Zone) pursuant to the provisions of the Parramatta Local Environmental Plan 2011 (PLEP 2011). The land adjoining and in the immediate locality is also within the R2 Zone. The proposed development is permitted with consent in this zone as a "centre-based child care facility".
2. The site is not a heritage item and is not within a conservation area, nor is it classified as flood prone land.
3. The PLEP 2011 provides for development standards for maximum building height, in this case of 9.0 metres, and maximum floor space ratio, in this case of 0.5:1. There is no dispute that the development complies with these standards.

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

1. The State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP Educational Establishments and Child Care) applies. The SEPP Educational Establishments and Child Care triggers, at cl 23, consideration of the New South Wales Child Care Planning Guideline 2017 (Guidelines), tendered at Tab 3 of Ex 2. Clause 23 of the SEPP Educational Establishments and Child Care states: 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.
2. Clause 25 of the SEPP Educational Establishments and Child Care 'calls up' the Education and Care Services National Regulations (Regulations) with respect to certain non-discretionary development standards for indoor or outdoor play space.
3. Clause 25 of the SEPP Educational Establishments and Child Care states: 25 Centre-based child care facility - non-discretionary development standards (1) The object of this clause 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 clause does not prevent a consent authority from - (a) refusing a development application in relation to a matter not specified in subclause (2), or (b) granting development consent even though any standard specified in subclause (2) is not complied with.
4. Clause 26 of the SEPP Educational Establishments and Child Care addresses potential overlap of controls in local development control plans as follows: Centre-based child care facility - development control plans (1) A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility - (a) operational or management plans or arrangements (including hours of operation), (b) demonstrated need or demand for child care services, (c) proximity of facility to other early education and care facilities, (d) any matter relating to development for the purpose of a centre-based child care facility contained in - (i) the design principles set out in Part 2 of the Child Care Planning Guideline, or (ii) the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates). (2) This clause applies regardless of when the development control plan was made.

State Environmental Planning Policy No 55 - Remediation of Land

1. Clause 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) specifies that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated and if so any decontamination measures required.
2. Further particulars of the relevant planning provisions are introduced in the consideration of issues.

Contentions

1. The SOFC filed on 4 March 2020 (Ex 1) listed 14 Contentions, each with numerous particulars and overlap between contentions. After certain matters were resolved through the provision of additional information or the work of the joint experts, the Council's view on why the application should be refused, are essentially five in number as summarised below: 1. The location and form of the western outdoor play space (FF1) is inappropriate due to its high visibility in the locality and inconsistency of the western portion of the development with the character of the neighbourhood. 2. The setbacks of the proposal are inappropriate, and the siting of the built form is inconsistent with the subdivision pattern. 3. The measures needed to achieve appropriate acoustic amenity for neighbours lead to poor amenity for users of the child care centre and the surrounding neighbourhood. 4. The scale and intensity of the development is not suitable for the site. 5. The proposal fails to provide adequate facilities for the operation of the child care centre or satisfactory amenity for the young children and educators at the centre.
2. The Council in opening submissions raised a jurisdictional matter. Mr Stafford pointed out that one of the architectural drawings (DA05.03 Rev A) indicated concrete footings to support the acoustic fence crossed over the boundary and into a neighbouring property, and that the Court did not have power to approve the proposal without the land owner's consent. In response the Applicant sought leave to revise the application by substituting in the set of architectural drawings at Exhibit B an alternative drawing (DA05.03 Rev C) demonstrating that all works, including the acoustic wall footings would be wholly contained within the site. Leave was granted to amend the application by making this plan substitution, and Council agreed the revised plan overcame the jurisdictional issue raised.
3. Contention 14 of the SOFC stated that the DA should be refused because the requirements of SEPP 55 regarding the remediation of land had not been met. At the hearing leave was sought and granted to rely on the site audit 'bundle' of documents tendered as Exhibit M, as filed with the Court on 24 March 2020. That 'bundle' comprised a Site Audit Statement 292B dated 16 March 2020, Site Audit Report dated 16 March 2020, Site Audit Statement 292 dated 3 September 2019, Site Audit Report dated 2 September 2019 and a Remediation Action Plan (RAP) dated 12 March 2020.
4. The Council had no objection to these documents being tendered and confirmed that site contamination was no longer an issue in the proceedings. The Site Audit documents and Remediation Action Plan (RAP) included in Exhibit M address the relevant requirements of SEPP 55. Having reviewed those documents I am satisfied that the land is capable of remediation and can be made suitable for the land use and development proposed, subject to the inclusion of conditions as recommended in the RAP, and other documents comprising Exhibit M as necessary. I therefore concur with the Parties that the development is acceptable in this regard.
5. It was also agreed between the Parties that, given the conclusions of the Joint Statement of the acoustic experts (Ex 4), the acoustic "further information" contention (contention 139(d)-(g)) had been resolved and the acoustic impact of the proposal on the existing surrounding development is rendered acceptable by the mitigation measures proposed (contentions 10(a), (b) and part (c)).
6. The Council, however, did not agree that those measures were appropriate (other than from a noise perspective) "…or that the mitigation measures should have been the remedy for poor siting, design, bulk and scale, or an inappropriate intensity of development for the site."
7. In opening submissions Mr Stafford for the Council urged the Court to consider the submissions made by residents, "including in respect of traffic and parking issues which Council no longer presses as a contention". No traffic experts gave evidence to the Court, although the Traffic and Parking Impacts Report by TEF Consulting dated 5 December 2019 (Ex G) was tendered by the Applicant without objection.
8. I have arranged my consideration of this matter under five headings based on the five issues the Council contend are reasons for why the application should be refused, as set out by Mr Stafford in his opening and closing submissions and summarised at [29] above and any additional issues raised by objectors.

Roof terrace outdoor play space (FF1) and western portion of the building is out of character

1. This issue was the subject of contentions 3(a), (b) and (d); 4(a) - (c); 5(a) - (d); and 6 (d) and (k) - (l) of the SOFC (Ex 1).
2. The Council's principal contention with respect to this issue is that the flat roof of the single storey western "wing", (which accommodates the outdoor play space FF1) is out of character. In examining this issue it is necessary to understand the character of the locality and the details of the rooftop terrace proposed and how the two relate.
3. The FF1 roof top terrace comprises an area of 150m2 of outdoor play space partially covered by an awning in its north-east corner. A continuous 1.95m wide by 0.6m high planter runs around the two street-side perimeters of the terrace. Attached to the inside face of the planter is a clear glass balustrade, extending to a height of 1.39m above the terrace level. On the northern edge of the terrace facing the dwelling at 8 Rope Street, the planter is narrowed to generally 0.75m in width or eliminated entirely for the rear north-eastern portion covered by the awning. For the full extent of this northern edge and across the northern side of the connecting pedestrian bridge is a 2.0m high opaque glass acoustic screen.
4. The Court's attention was drawn to the Design Quality Principles in Part 2 of the Guidelines and in particular to Principle 1 - Context, Principle 2 - Built Form and Principle 5 - Landscape, and to the more detailed "Matters for Consideration" in Part 3, and in particular: 1. Consideration 5 (C5) relating to compatibility with the local character and surrounding streetscape. 2. Consideration 11 (C11) relating to the development's response to the streetscape and site, while optimising solar access and opportunities for shade, and 3. Consideration 15 (C15) which seeks to ensure the built form, articulation and scale of development relate to its context, and buildings are well designed to contribute to an area's character.
5. The DCP is also referred to in the SOFC, and in particular Part 3.2 Building Elements, which in part relates to how building elements, such as building form and massing, roof forms, fencing and landscaping all contribute to the character of a locality. The town planning experts agreed in the Joint Report that Contentions 4 and 5 both relate to character within the locality as well as streetscape character and could be dealt with together, with particulars drawn from both the Guidelines and the DCP.
6. The town planning experts agree at par 114 in the Joint Report "... that the predominant character of is of 1 and 2 storey dwellings sited within the established lot subdivision pattern, within landscaped settings and with a roof form for both the older and newer housing stock of pitched roofs within the visual catchment."
7. They also agree, at par 112, "…that the character of the locality is in a state of gentle transition from older housing stock, being modest single storey homes with pitched roof forms constructed likely in the 60's and 70's, to larger and more contemporary built forms of 2 storeys with larger footprints and a number of 2 storey attached dual occupancy forms. There are a number of older 2 storey forms and an uncharacteristic townhouse style built form with a 2-3 storey appearance at 19-21 Ryan Street."
8. The town planning experts also agree that: 1. With respect to roof form "…the newer housing stock varies and in particular the emerging dual occupancies have a variety of roof forms ranging from flat roof forms to pitched roof forms" (par 113), and 2. within the locality "…there are no examples of...first floor roof terraces" (par 115).
9. Mr McDonald was of the opinion that the roof form was inconsistent with the character of the locality and the existing streetscape "…particularly the flat roof on the western section of the building .. together with the very large roof terrace (161 sqm) and dominant first floor planters surrounding the terrace. The roof terrace and bulky edge roof treatment, including the opaque glass walls predominantly 2 m in height, are alien elements introduced to the locality and in my opinion entirely uncharacteristic." (par 143).
10. Mr Wood points out that the development is a child care centre "…so it cannot appear the same as a dwelling house as operationally and by its nature it requires different elements." He goes on to acknowledge, however, that "…the design can and should draw cues from other forms of residential development, such as dwellings and dual occupancies and ensure it is compatible." (par 121).
11. Mr Wood places greater emphasis on the emerging character as typified by the greater variety of building design, housing typologies in the form of dual occupancies, and roof forms, including flat roofs. With respect to the western flat roof accommodating the FF1 outdoor play space Mr Wood (at par 123) accepts "…that a terrace of this size is not observed in other forms of development however the design of the space with the deep planter boxes and landscaping in front, the clear glass balustrade to 1.39m for acoustic attenuation is done in a way to minimise visual impact of this area as it relates to streetscape…".
12. With respect to character the primary consideration is whether the development as a whole is compatible with the existing and desired future character of the locality. The character of any given locality is the sum of a collection of qualities or elements of the built and landscape environment. Those elements are various and may be cohesive or eclectic and together they may or may not form a strong or discernible pattern. The fact that one of those elements, such as the roof form and roof terraces are common or absent from an area, particularly one in transition, does not mean the development as a whole is incompatible with the locality. In this case the building and landscape design overall is an acceptable and not incompatible response to the local character and streetscape whilst also and necessarily recognising the functionality of the development as a child care centre.

Setbacks and consistency of siting with subdivision pattern

1. This issue was the subject of contentions 2(a), (b) and (d): 3(a), (c) (d) and (f); 4(c); 5(d) - (g); 6(a) - (l) and 7 of the SOFC. The siting issue, in the circumstances of this case, is also relevant to the consideration of the character of the locality and streetscape.
2. The setback dimensions and uses are as follows: 1. To Rope Street - 6.5m, predominantly used as a landscaped setting for the building but also contains a 6.0m wide driveway to the basement parking level and fire stair egress. There are no fences in this setback. 2. To Ryan Street - 5.0m to the basement level and 7.0m to the ground level building line of the western portion of the building and stepping back to 8.5m to the building line of the eastern portion of the building. Within the 7m setback is a covered verandah associated with the outdoor play space (GF1) in front of the western 'wing'. The GF1 play space is enclosed by a 1200mm high solid brick fence with 300mm "acrylic / glass" extension above. The Ryan Street fence is located 1.0m from the street boundary and curves at both ends to link back into the western and eastern ends of the verandah. The land outside the Ryan Street fence is predominantly landscaped and contains the centre's pedestrian entry. 3. The northern side boundary setback (to 8 Rope Street) is 800mm to the basement on-site detention tank and planter over, and 2.0m - 3.5m to the building line. Protruding into this setback is an open fire stair emerging from the basement, reducing the set back at the narrowest point to 705mm. Section 4 on DA05.02 shows the planter (including 1000mmm soil depth) protrudes approximately 1.8m vertically above ground level. The planter is landscaped, most notably with 'teddy bear' Magnolia trees, and the 800mm wide ground level space is landscaped with Tall Sedge grass. This design continues around the corner to the rear boundary to 8 Rope Street. 4. The eastern side boundary setback (to 5 Ryan Street) is 900mm at basement level and 2.0m at ground level. The eastern side of the 2.0m wide setback is planted in Tall Sedge grass. 5. The rear of the building is setback 13.995m from the northern boundary (to 8 Fullford Street) at ground level, reducing to just over 10m in the below ground basement. This rear setback is used as outdoor play space (GF2) and includes landscaping and two acoustic barriers set 900mm off the eastern and western side boundaries.
3. The Council contends: 1. The street setbacks on both Ryan and Rope Streets are inconsistent with the prevailing setbacks in those streets. 2. The northern boundary to 8 Rope Street is less than 2.0 metres due to the intrusion of the planter and fire stairs. 3. Use of the Ryan Street frontage as a play area fenced off by a 1.5m acoustic barrier is inconsistent with the established subdivision pattern and residential character. 4. There is no 'backyard' in the western building component, and the breezeway and bridge located there, with associated awnings and acoustic screens cause the eastern and western components to present as a single long built form. 5. The narrow eastern "wing" frontage is also inconsistent with the prevailing (built) pattern, particularly given the protrusion of the rear (ground level) verandah and awning into the rear setback.
4. Mr McDonald expressed the opinion (at par 143) that the proposal does not respect or reflect the established subdivision pattern but rather "spreads the built form as one building across both lots" and does not adopt the established front and rear setbacks on individual lots.
5. Mr Wood on the other hand points out (at par 122) that "…the development expresses 2 building volumes, the eastern building which adopts a 2 storey form with pitched roof, and the western building that adopts a 1 storey form…and a rooftop play space. This is separated by a 4m-6m break in the building that features a linkage to the rooftop outdoor play area."
6. With respect to siting and setbacks Mr Wood considers the fact that the development is on a corner with two street frontages is important to the siting, that Rope Street is the primary frontage to the corner lot (No 1 Ryan Street) and that there is a second primary frontage for the deeper portion of the site, at the 3 Ryan Street lot. This, he says, is reflected in the existing building alignments and orientations.
7. I agree with Mr Wood's analysis that there are two primary street frontages by virtue of the existing subdivision pattern, and this is reinforced by the orientation of the dwellings and driveways - one from each street. The street setbacks of the proposed building is within the range of existing setbacks in the locality, as evidenced by the plan DA02.07 (part of Ex B) which is a study of the setbacks of 74 dwellings in the vicinity of the site and shows 54% of those dwellings have a street setback of 7.0m or less.
8. With an amalgamation of the two lots an 'uncharacteristic' reverse L shaped site is created and the existing subdivision pattern is disrupted. That of itself is not sufficient grounds to reject the proposal. Rather the primary consideration with respect to this particular issue is how any new building is accommodated within the constraints of the newly configured site, how it fits within the streetscape and remaining built context and whether the impacts are acceptable. The siting of the building in this case has had regard to the streetscape context, character, subdivision pattern and other relevant design objectives, with the splitting of the building into two distinct forms at, or approximate to, the original allotment boundary dividing the site.
9. The single storey western component is setback 6.5m from its primary frontage to Rope Street as recommended by Mr Wood in the Joint Report, is consistent with the prevailing setback of the dwelling houses located in that street and is consistent with the 5m - 9m primary setback suggested for dwelling houses in the DCP. This decision to treat Rope Street as a primary street is reasonable and appropriate in terms of that streetscape and built pattern. In choosing this approach it is then also appropriate to treat Ryan Street as the secondary street for the western component of the development. The DCP permits a minimum setback of 3m for secondary street frontages on corner allotments. The western component of the building is setback from its secondary frontage to Ryan Street by 5.0m to the basement level or 7m to the building line.
10. The enclosing solid fence on Ryan Street is located behind the primary street (Rope Street) building alignment. This traditionally occurs on corner allotments and is evident in this locality at, for example, 6 Rope Street on the opposite corner of the Rope Street / Ryan Street T intersection and the more recent dual occupancy at 14 Rope Street at the corner with Fullford Street.
11. The eastern component of the building has an increased setback of 8.5m from its primary frontage to Ryan Street. This setback is also within the DCP's 5-9m range for primary street setbacks and is an acceptable response to this streetscape as a transition to the adjoining dwelling to the east at 5 Ryan Street.
12. The southern elevation is broken up by the varying setbacks and by a 4-6m wide by 5m deep recess that separates the two components of the building at the appropriate location where the amalgamated lots meet. The recess is open to the sky and clearly separates the eastern and western 'wings' of the building. Along with the different heights and roof forms these setbacks and design measures respond to the existing subdivision pattern and streetscape in an acceptable manner.

Acoustic mitigation measures and impact on amenity for users of the centre and the surrounding neighbourhood

1. This issue was the subject of contentions 1; 2(f) and (h); 4(a) and (c); 6; 7; 8; 9; and 10(e) - (j) of the SOFC.
2. The acoustic experts agreed in their Joint Statement (Ex 4) at par 4.2 that "… the acoustic impacts upon the adjacent residential receivers, in their existing form, can be adequately mitigated to acceptable and complying levels" with the incorporation of acoustic barriers and various management measures.
3. What remained in contention was the appropriateness of those measures from "a planning amenity or child care design perspective" (Respondent's Opening Submissions, 7 May 2020, par 39), and the potential impact on possible future two-storey residential development on adjacent properties.
4. The acoustic measures that the acoustic experts agree would satisfactorily mitigate the noise impacts, are those proposed in the Acoustic Report by Day Design dated 12 December 2019 (Acoustic Report) (Ex E), authored by Mr Gould. They are: 1. A series of sound barrier 1.8m high fences along boundaries to adjoining properties, an additional 2.4m barrier located 900mm inside the western and eastern side boundary fences of the rear children's play area (GF2), a 1.5m high wall to the southern play area fronting Ryan Street (GF1) and barriers ranging in height from 1.39m to 2.0m on the first floor roof terrace outdoor play areas (FF1 and FF2), all positioned as set out in the Appendix E1 and Appendix E2 drawings of the Acoustic Report. 2. Sound absorbing insulation on the underside of the awning to the FF2 outdoor play area. 3. Limits to the simultaneous use of the 2 front and 2 rear outdoor play areas, maximum child numbers at any one time, by age group, of each play area, and the use of the GF1 play area for "quiet play" (as defined) only, all of which is to be set out in the Plan of Management for the centre (refer section 11.4 of the Acoustic Report). 4. A detailed noise impact assessment be undertaken once the mechanical plant selection is finalised prior to issuing a Construction Certificate.
5. Mr Heydon maintains at par 4.2 of the Acoustic Statement (Ex 4) that such noise mitigation measures would not be necessary if the child care centre "were sited in a suitable location and were of an appropriate scale and intensity". In oral evidence Mr Heydon explained that 1. by "suitable location" he meant "not in a low density residential area", and 2. by "scale and intensity" he was referring to the number of children, which if reduced would result in less noise and lower barrier heights, although he had not done any modelling for fewer children than the number proposed in the application.
6. On this point I do not accept that low density residential areas are unsuitable locations per se for child care centres. In this case the "centre-based child care facilities" are specifically nominated as a use permissible with consent in the R2 Zone, a low density residential zone. The land so zoned is deemed suitable under Council's statutory planning regime, subject to the assessment of an individual development confirming the environmental impacts are acceptable.
7. The objectives of the R2 Zone reinforce this. They are: 1. To provide for the housing needs of the community within a low density residential environment. 2. To enable other land uses that provide facilities or services to meet the day to day needs of residents. 3. To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment. 4. To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.
8. Ms Reid submits that the third objective is declaratory in nature and "provides that the limited range of non-residential development permitted in the zone is taken to be development that is located in a context and setting that minimises impacts on the amenity of a low density residential environment." She cites the decision of Preston CJ in Nessdee Pty Ltd v Orange City Council [2017] NSWLEC 158 at [18] in support of this interpretation.
9. Ms Reid further submits that the third zone objective discloses that there will not be 'zero' impact from non-residential uses, but that the nature of the limited non-residential permissible uses limits that impact.
10. In this case the acoustic experts agree that the "…the acoustic impacts upon the adjacent residential receivers, in their existing form, can be adequately mitigated to acceptable and complying levels". A wide variety of mitigation measures are commonly used to render acceptable development proposals that would otherwise not be acceptable. Noise barriers and management or operational procedures, such as restricted numbers of occupants or hours of operation in play areas, such as proposed in this development, are commonly applied to child care centres to mitigate noise impacts on the existing environment.
11. In preparing evidence for this case Mr Heydon went a step further and undertook additional acoustic modelling of hypothetical development scenarios for possible future two-storey residential development on the adjacent land, as set out in Annexure C to the Acoustic Statement (Ex 4). He based those scenarios on guidance provided by Mr McDonald as to the zoning and development controls applicable for that type of development generally.
12. As a result of that modelling Mr Heydon concludes at par 4.9 of the Acoustic Joint Report "…Based on the potential form of residential development on neighbouring properties, there will be unacceptable acoustic impacts on future development."
13. In oral evidence, Mr Heydon advised the Court that he had been instructed to model two-storey residential development and had not undertaken any modelling or consideration of other potential development, including for any of the non-residential uses permissible in the R2 Zone.
14. Mr Heydon also confirmed that when undertaking the additional modelling of hypothetical residential development on adjacent land he had not considered any particular form of development, floor plans or noise mitigation measures that might be employed. He acknowledged that when Council receives a development application for residential development adjacent to a child care centre the consent authority would take into account noise amelioration measures the proposed development may use to minimise any existing impacts from the existing centre.
15. Mr Gauld on the other hand notes the Guidelines and DCP do not require assessment of future two-storey residential premises, that there is "an infinite number of design schemes" that could be proposed for future development on adjacent land and without knowing the form of future two-storey development "…it is impossible to conclude that the acoustic impacts on the future imaginary dwellings will be unacceptable." (par 4.12, Ex 4).
16. Mr Stafford took the Court to Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177 at [182] and submitted that although it was not a legitimate consideration under s 4.15 of the EP&A Act to require assessment of a hypothetical future development application in the context of a current development application, it was legitimate to consider the appropriateness of the development in the context of the desired or transitioning character of a neighbourhood. He also contended it was appropriate to consider whether the noise caused by the proposal represents a constraint on the development potential of adjacent residential properties consistent with that character, and whether it would hinder the "proper and orderly" development" of that land in the future.
17. The Parties both sought to rely on Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349 (Hoxton Park) as an authority on whether or not to take into account impacts on potential future development.
18. In Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [6]-[8] Preston CJ summarised the case law relating to the correct approach to considering the likely impacts of development, including relevant extracts of Hoxton Park (at [44] and [46]), as follows: "6 The phrase "the likely impacts of that development" embraces not only site specific impacts, being impacts of the proposed development on the development site, but also off-site impacts. Off-site impacts can be caused not only by the proposed development impacting adjoining or other land in an area of influence but also by some other development provided that the impacts of that other development have "a real and sufficient link" with the proposed development, such as where the impacts are caused by "some further undertaking that is 'inextricably involved' with the proposed development": Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 at 101 and Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 at 534-535. 7 The critical factor is that there is a connection between the likely impact and the proposed development. This is because the category of relevant matters required to be considered is "the likely impacts of that development". As Basten JA held in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 at [44]: "The impact must be one flowing from the development the subject of the development application: the question is how remote a 'likely' impact must be, in order to disqualify it from the scope of the consideration." 8 Increasing remoteness in the chain of likely consequences will decrease the significance of an impact. This flows from both the concept of "impact" and the concept of "likely". As Basten JA held in Hoxton Park Residents Action Group Inc v Liverpool City Council at [46]: "Some such limitation must follow from the concept of 'impact': as remoteness from the development increases, impact is likely to decrease, until it no longer has practical significance in terms of approving or refusing to approve the application. Further, the likelihood of a particular impact may diminish with remoteness. 'Likely' in this context has the meaning of a 'real chance or possibility' rather than more probable than not…"
19. Ms Reid submitted that "Council's approach is to consider an impact that is so remote that its consideration is absent from the statutory regime. On Mr Heydon's evidence, he does not know the form of any future development, or even whether it would be a dwelling use."
20. Whether or not this approach is so remote or unlikely as to "disqualify it from the scope of consideration" I have considered it, and found it wanting. There is no known development proposal on the adjoining land. Although a residential land use may occur, and may even be likely, the land use is not the development and the R2 zone does permit a wide range of non-residential uses, and of which is potentially possible. The future development scenarios considered by Mr Heydon are for one generic form of development only (two-storey residential) based on broad-based PLEP 2011 development standards and the DCP setbacks. They are not a development proposal that can be adequately assessed as they lack floor plans or elevations to show room and window locations, and there is no allowance for noise attenuation measures which are readily available, and which Mr Heydon concedes would most likely be required as part of a future application assessment by Council. I therefore do not give Mr Heydon's hypothetical development scenarios substantive weight.
21. There was no substantive evidence that the development would hinder the redevelopment of the adjacent land, including for example limiting it to a single storey, nor render it incapable of orderly and economic development. Should protective mitigation measures be needed in the future this is a common occurrence in residential areas, particularly if there is a noise source nearby, and does not render the land unduly constrained.
22. With respect to the physical barriers, Mr Stafford correctly argues that the Court needs to consider their impacts as part of its consideration of neighbourhood amenity and character. He maintained the "acoustic screens, opaque barriers and regimented management of the use of the outdoor space" were afterthoughts and no substitution for addressing these issues as contemplated in the siting and built form controls and an appropriate intensity of use.
23. Mr Stafford argued that the 2.4m high noise barriers (as measured from the ground level of adjoining properties) means they will in some places be higher than 2.4m, and will contribute to bulk and scale. This impact he maintained was exacerbated by the barriers' inadequate separation from boundary fencing, their opacity, their support structures, which were unclear from the information provided, and the uncertainty of materials used. Mr McDonald was critical that the 900mm wide separation of the fence and barrier was insufficient to permit taller screen planting in that space.
24. The heights of the boundary fences and the acoustic barriers are summarised on the plans at Appendix E1 and E2 of the Acoustic Statement (Ex 4). Drawing DA05.03C (part of Ex B) includes a section (section C) of the 1.8m high boundary fence and 2.4m high acoustic barrier details. The notes refer to the boundary fence as a "solid boundary fence to future detail" that is lined on the inside face with sound absorbing panelling. Solid 1.8m fencing on the boundaries to rear yards are evident on the site and in the neighbourhood and are standard practice to protect ground level privacy between adjoining properties. This 'outer' fence is not in contention.
25. Additional acoustic barriers located 900mm inside the boundary fences are proposed on the eastern and western side boundaries, on both sides of the 'backyard' GF2 outdoor play area. The height of these barriers, based on the acoustic advice of Mr Gould and as agreed between the acoustic experts, needs to be 2.4m above the ground level of the adjoining properties (emphasis added) at the common boundary. As the land is sloping and the adjoining ground levels vary the height of the barriers also vary.
26. Mr Wood's evidence at par 159 is that the acoustic panels on the eastern side would need to range in height from 2.4m up to 2.87m. Mr McDonald calculated that the eastern acoustic barrier would be 2.9m above ground level at its highest point. Both planners agree the height of the western internal barrier could be as low as 2.0 metres in places.
27. The design of the taller acoustic barriers is shown on Section C in drawing DA05.03C (part of Ex B) and in sections included in Attachment E to the Joint Report (Ex 3). Drawing DA05.03C indicate "support posts at regular intervals as required" and the drawings suggest the posts do not exceed the height of the outer 1.8m high solid boundary fence. Attached to these posts are "acrylic or similar" screens commencing at a height of 900mm above ground level and extending to the 2.4 minimum height from the neighbouring property ground level. The "Additional Section Drawings" at Attachment E to the Joint Report (Ex 3) indicate the screens are to be made of a "clear acrylic" material.
28. The land between the solid boundary fence and the acoustic screen is to be landscaped with Tall Sedge" carex appressa grasses which reach a mature height of 800mm (Landscape Plans, Ex C), and will spill slightly into the play area beneath the screen. The purpose of the 900mm gap at the bottom of the screen is for access for maintenance, as noted on section C of drawing DA05.03C, and to allow for drainage. The planners agreed that the gap could be filled, for safety reasons, to preclude children accessing this area, and still provide for overland water flows, and a condition of consent could remedy this if necessary.
29. The Applicant maintains that the information provided on the drawings is sufficient to assess the impacts of the fencing and barriers. The opacity of the barriers is not explicit in all cases and there are some contradictions between the notes on different drawings. I agree with the proposition that clear screens would help mitigate their visual impact. Mr Wood in oral evidence agreed that acrylic screens, even if transparent when erected, could possibly become opaque over time with exposure to the elements. He suggested the use of clear glass would overcome this, and a condition of consent to that effect could be imposed if necessary.
30. The heights of the taller inner acoustic barriers to GF2 are 400mm higher than the 2.0m anticipated in the DCP for such barriers on a flat site, although the DCP recognises that heights up to 4.0m would be considered where there are grade differences treated with retaining walls. No retaining walls are proposed in this instance although the principle of increased heights for sloping sites is a relevant consideration addressed by the planning and acoustic experts.
31. The acoustic barriers to GF2 will not be readily visible from the street and therefore have no appreciable impact on streetscape or neighbourhood character. To minimise the visual impact to the rear yards of adjoining properties the solid structural elements that support the clear screens should not protrude higher than the 1.8m boundary fence, as indicated on section C of drawing DA5.03C. This can be reinforced in a condition of consent.
32. The GF1 outdoor play area located between the building and Ryan Street is proposed to be screened by a solid brick wall measuring 1.2m in height, with an "acrylic or similar" fence extension to a height of 300mm above the top of the brick wall, creating a total fence height of 1.5 metres. The details of this fence are shown on section B of drawing DA05.03C. This fence is set 1.0m inside the street boundary with Lillypilly (Acmena smithii 'Minor') hedge planting between it and the boundary. This hedge will reach a height of 2-3m at maturity (Landscape Plans, Ex C).
33. The Ryan Street fence is an acceptable design response under these circumstances and for this streetscape. The DCP specifies a maximum height of 1.2m for front fences, but none for fences on the secondary frontage of corner lots. The DCP acknowledges "Where noise attenuation or protection of amenity requires a higher fence, front fences may be permitted to a maximum height of 1.8m and must be setback a minimum of 1m from the boundary to allow landscape screening to be provided." (Section 2.3.6 of the DCP).
34. The solid component is constructed in brick, which is a material used in other street boundary fences in the locality and at 1.2m high is consistent with the Council's DCP limit for primary street frontages and aligns with the 1.2m high solid side boundary fences located forward of the building alignment on the northern and eastern boundaries. The 300mm clear acrylic extension is also acceptable as the total fence height (of 1.5m) is within the 1.8m maximum for noise barriers, it is of a light transparent material to minimise visual impact and the fence will be largely screened by the hedge planting.
35. The acoustic screens on the FF1 roof terrace of the western component of the building were considered unsuitable by Mr McDonald because of their visibility and uncharacteristic nature when viewed from the street, but acceptable by Mr Wood.
36. The edge treatment of the FF1 terrace as illustrated on section A in drawing DA05.03C (part of Ex B) shows a solid walled planter 1.95m wide and 0.6m high, with a clear glass extension to a 1.39m total height above the finished floor level of the terrace. The 1.39m extended balustrade facing Ryan and Rope Streets is to be constructed in clear glass. The taller 2m high walls are to be constructed in opaque glass to protect the visual privacy of adjoining properties and are setback much further from Ryan Street.
37. The height relationship of the acoustic screens to the planter and to the two-storey eastern component of the building is shown on the south elevation at DA04.01D and on the west elevation at DA04.02. I therefore concur with Mr Wood that the non-acoustic impacts of the screens can be adequately assessed, and that the design of the terrace space "…with the deep planter boxes and landscaping in front, the clear glass balustrade to 1.39m…is done in a way to minimise visual impact" (par 123 of the Joint Report Ex 3).
38. I find on balance the external appearance and visual impact of the acoustic screens, including those on the rooftop terrace, are acceptable in terms of neighbourhood amenity and environmental impact, and when considered holistically with the totality of building and landscape design elements are not incompatible with the local character or streetscape.
39. Furthermore, the environmental impacts on residential amenity are not limited to acoustic and visual impacts. Residential amenity also encompasses solar access, privacy and impacts on views. These additional and important amenity considerations were not contested by Council or the town planning experts. The shadow diagrams included as part of Exhibit B demonstrate all residences in the vicinity will continue to receive at least 3 hours of solar access to their private open spaces in line with DCP requirements and visual privacy is achieved by the fencing and acoustic screens, including where appropriate on the first floor terraces, the use of obscure glazing.

Scheduling and use of outdoor play spaces

1. The Council contends that the management measures required to achieve an acceptable acoustic impact are unacceptable in terms of the impacts these measures will have on the amenity of the child care centre for the educators and children using it.
2. The use of the outdoor play areas is to be managed according to a revised play schedule at Attachment F to the Joint Report (Ex 3). It sets out an "indicative daily programme and routine" (indicative programme) for three age groups (0-2 years, 2-3 years and 3-5 years). Each age group is scheduled play time in one of the four outdoor play areas at different hours of the day so that the acoustic engineering recommendations are met. The indicative programme indicates that the agreed recommended maximum number of children in each play space is maintained at all times, and that the street-facing ground and first floor level spaces (GF1 and FF1) are not used concurrently and the rear ground and first floor level spaces (GF2 and FF2) are also not used concurrently. It also demonstrates that each child will have access to at least 2 hours / day of active play, and there is no dispute that the quantum of outdoor play space exceeds that required by the Regulations.
3. The primary outdoor play space of concern to the Council is the GF1 area located in the Ryan Street setback, and in particular the limitations on its use as a "quiet play" area. This issue is dealt by the two child care experts in the Joint Report (Ex 3) in their responses to Contentions 9 and 10.
4. Ms Shepherd's evidence was that GF1 is partially sloping and offers 43% of turf and garden elements only and this is "limiting access to the natural elements planted on a sloping gradient, is highly restricted in terms of use being available for quiet play ", and the fencing and planting will impede children "…accessing a vista to borrowed landscape", and the space is "not conducive for robust energetic and active play".
5. Ms Campbell on the other hand maintains the 43% garden area will provide adequate access to a natural environment, and that active type play such as running, climbing and ball games can be provided in the three other play spaces.
6. In Ms Shepherd's opinion restricting the use of the outdoor play areas as proposed in the indicative programme is an unacceptable imposition on young children in terms of child centred learning and development for the reasons set out in par 208 of the Joint Report (Ex 3), and involves "a need for teacher/educator direction around the use of the outdoor play spaces at particular times of the day."
7. Ms Campbell maintains that it is typical for services to organise children into smaller groups throughout the day and with the movement between indoor and outdoor areas the children will be provided with some choice. Ms Campbell also expressed the view that the design and setup of the environment will influence the type of play and having a variety of areas available to the 2-5 year olds (in GF1, FF1 and FF2) means they can be designed to optimise the type of play occurring.
8. The Guidelines (Tab 3 to Ex 2) provides assistance on how to apply the Regulations to development proposals, and at Part 4B it expressly addresses the external physical environment. Section 4.10 covers the natural environment considerations and provides design guidance for the application of Regulation 113 on the Regulations. Regulation 113 states: The approved provider of a centre-based service must ensure that the outdoor spaces allow children to explore and experience the outdoor environment.
9. The "Design Guidance" for Regulation 113 states that: "Creating a natural environment to meet this regulation includes the use of natural features such as trees, sand and natural vegetation within the outdoor space. Shrubs and trees selected for the play space must be safe for children … The outdoor space should be designed to: • provide a variety of experiences that facilitate the development of cognitive and physical skills, provide opportunities for social interaction and appreciation of the natural environment • assist supervision and minimise opportunities for bullying and anti-social behaviour • enhance outdoor learning, socialisation and recreation by positioning outdoor urban furniture and play equipment in configurations that facilitate interaction"
10. The four outdoor play spaces are partially open to the sky and partially shaded by awnings, and are naturally ventilated. The Landscape Plans (Ex C) show the two ground level outdoor play spaces GF1 and GF2 include shade trees, shrubs, sand pits edged in natural stone, and turf. Crawl tunnels and vegetable gardens in raised pots are also shown in GF2. For the first floor spaces, FF1 and FF2, the Landscape Plan L-04 I (part of Ex C) shows feature trees in large pots, a mixture of softfall and synthetic turf surfaces, crawl tunnels and in the case of FF1 galvanised steel vegetable planters. Images of some of these features and the type of landscaping envisaged is shown on the Landscape Plans (Ex C) and on drawing DA06.08C (part of Ex B).
11. Ms Campbell provided written and oral evidence that moveable play equipment would also be located in the outdoor play areas, including flexible climbing equipment in FF1 and FF2.
12. In the Joint Report (Ex 3) Ms Shepherd criticises the design of the outdoor spaces, stating (at par 245) children "…need access to adequate and satisfying naturally occurring natural elements (rather than tokenistic inclusion) of plants in containers, in each of the 3 outdoor play spaces for the 2-5s." Ms Sheppard was also concerned about the apparent lack of shade to FF1 and the excessive solar heating of synthetic turf in summer. Mr Stafford also raised safety concerns associated with children playing on the FF1 terrace suggesting children may be able to climb on to the raised pots, possibly by dragging over movable furniture, and from there climb over the 1.39m high balustrade.
13. Mr Wood (at par 185) defers to the child care experts whether the quality of the space is adequate, or could be made adequate, to explore and experience the natural environment. He suggests that the Landscape Plan may need updating to reflect more natural elements at FF1 and FF2. Ms Campbell (at par 183) says the outdoor play areas at FF1 and FF2 "…can provide a rich natural environment and that features such as the dry creek bed and wooden stepping stones, as shown in images 2 and 6 on DA06.08 C, can also be located in FF1".
14. In oral evidence Ms Campbell acknowledged there was some risk of a child being able to climb over the balustrade by dragging a moveable trestle although children would be supervised at all times whilst using the play spaces. She also advised that planters or raised pots would need to be located at least 1m from the balustrades to prevent climbing over the balustrades and there would be a risk assessment undertaken, and checked by the Department of Education, before it issued service approval.

Scale and intensity of development

1. This issue was the subject of contentions 3(a), (b) and (d); 4(a) - (c); 5(a) - (d); and 6(d) and (k) - (l) of the SOFC.
2. The Court's attention was drawn to the matters for consideration in the Guidelines and in particular to Part 3, Consideration C2 which falls under the heading 3.1 Site selection and location. It provides guidance for how to consider the second objective under this heading: "To ensure that the site selected for a proposed child care facility is suitable for the use." Consideration C2 lists eight bullet points of what to consider when selecting a site, the fourth of which states: "(to ensure) the characteristics of a site are suitable for the scale and type of development proposed having regard to: • the size of street frontage, lot configuration, dimensions and overall size, • number of shared boundaries with residential properties • The development will not have adverse environmental impacts on the surrounding area, particularly in sensitive environmental or cultural areas."
3. There was no evidence that the street frontage (combined length of 57.9m), site dimensions (width ranging from approximately 15m across the rear play area to approximately 25m at the bend of the L) and overall size (1,260m2) were unacceptable for the proposed use and I have addressed the issue of lot configuration when considering the subdivision pattern. Nor was the number of shared boundaries with neighbouring residential properties raised as an issue in the expert evidence. The site has shared boundaries with four properties and this of itself is not problematic.
4. There was no evidence to suggest the development was unacceptable in terms of the environmental impacts created by overshadowing, impacts on views or visual privacy, and the acoustic experts agree the noise impacts are acceptable with the mitigation measures proposed. I have also found the visual impacts in the context of streetscape and character are acceptable for the reasons set out above, and traffic and parking impacts are addressed further below. The overall environmental impacts of this proposal are therefore, acceptable.

Adequacy of facilities and amenities for operation of the centre

1. This issue was the subject of contentions 11; 13(c) and (h) of the SOFC. Mr Stafford contends the development will result in numerous "shortcomings" in facilities and amenities which together render the centre unsatisfactory for its purpose. The main inadequacies addressed by the child care experts, in addition to the outdoor play spaces already considered above, are: 1. The adequacy of sleeping facilities. 2. The adequacy of nappy change facilities. 3. The adequacy of storage for equipment, materials, resources, beds children's bags, prams, scooters and bikes. 4. The adequacy of food or bottle preparation areas. 5. The failure to provide detailed emergency procedures / evacuation plan (Guideline Part 4.8). 6. The failure to provide private space for consultation between staff and parents (Guideline Part 4.5).
2. Ms Reid submitted the Council's case focuses on these "minutia" which are matters to be addressed at the time of service provider approvals, with the focus of the DA being on the built form considerations.
3. The indoor space requirements are set out in Part 4A of the Guidelines, which are designed to assist in applying the nominated Regulations. The following sections of Part 4A are particularly relevant to any consideration of these issues: 1. Section 4.1 Indoor space requirements (Regulation 107) - minimum unencumbered areas per child and storage areas are specified. Unencumbered indoor space excludes passageways, toilets, nappy changing areas, areas permanently set aside for cot or other storage, staff or administration areas, kitchens, laundry or other spaces not suitable for children. It also suggests that storage of prams, bikes and scooters should be located adjacent to the building entrance. 2. Section 4.3 Toilet and hygiene facilities (Regulation 109) - design guidance for toilets, basins, hand drying fittings and fixtures, windows for surveillance etc. 3. Section 4.5 Administrative space (Regulation 111) - adequate area or areas for administrative functions, consulting with parents and children and conducting private conversations. 4. Section 4.6 Nappy change facilities (Regulation 112) - design considerations including benches for nappy changing and proximate facilities for baby bathing and hand cleaning for adults. 5. Section 4.7 Premises designed to facilitate supervision (Regulation 115) - including avoiding rooms or areas with poor surveillance. 6. Section 4.8 Emergency and evacuation procedures (Regulations 97 and 168) - including that an emergency and evacuation plan should be submitted with a DA, and what it should consider.
4. The architectural plans show the nominated storage rooms and include calculations of the unencumbered areas (drawing DA06.02D). They show Play Rooms 1, 3 and 4 all exceed the unencumbered space area requirements and Play Room 2 meets the minimum required. With respect to the indoor space requirements there was no dispute that the unencumbered area requirements in Regulation 107 are satisfied.
5. The child care experts agree there are sufficient cots for the 0-2 year olds with the provision of 8 additional stretcher style beds, and that the 2-3 year old group will require a total of 20 stretcher beds. Ms Campbell's evidence was that it is typical for children to rest or sleep in the same room where indoor play occurs, and that any fold up stretcher beds not stored in the dedicated store room located between Play Rooms 1 and 2 can be readily stored in the Play Rooms, due to the excess space available. This was not contested by Ms Shepperd.
6. With respect to storing other equipment, materials and resources Ms Campbell's evidence was that the amount of storage was adequate, with resources largely on movable shelves that are "an integral part of the environment" and workers items are usually stored in overhead cupboards. She also suggested that storage of prams could be provided in the entry porch, that bikes could be stored in the basement bike bays and that child scooters not be permitted to remain on site as part of the management procedures.
7. Ms Shepherd said there was insufficient information on the bottle and food preparation area and fridge in Play Room 3, and on this point Ms Campbell's recommendation is that the area with a sink and labelled as a store on DA03.03D be used for the preparation of bottles for children under 2 years. Mr Woods evidence is that these matters can be included as conditions of consent if necessary.
8. The floor plans DA03.03E and DA03.04E (part of Ex B) show the location of benches with sinks, which are also indicated as being used for storage (on DA06.02). The plans do not include detailed fit-out documentation drawings of the fixed joinery, showing for example the bench and cupboard elevations, under bench or overhead cupboards, or equipment such as fridges, microwaves etc. I accept that this is not unusual, nor essential at the DA stage.
9. In this instance I accept that the plans show the location of the storage areas and the main amenities in the play rooms. I accept these amenities or rooms are capable of accommodating the necessary fixtures, fittings and equipment, and that suitable conditions to provide further details prior to the issuing of a construction certificate can be drafted. I am also satisfied that there is sufficient space available in the play rooms for such purposes, including movable storage shelving, particularly as the areas in three of the four play rooms exceed the minimum unencumbered space requirements.
10. I accept that there is a corner in the cot room that can not be readily observed from Play Room 1, and I also accept Ms Campbell's evidence that the beds could be rearranged or cameras used to address this, and a condition of consent could be imposed accordingly.
11. Regarding the emergency and evacuation plan, drawing DA03.06B is a two dimensional "Evacuation Plan" showing evacuation paths, and the location of the assembly area, fire extinguishers and directional signage to exits to demonstrate that evacuation considerations have been taken into account, in the building design, and these were not contested. The Joint Report (Ex 3) also includes at Attachment G draft emergency evacuation procedures, prepared by Ms Campbell, documenting how emergencies and evacuations will be managed.
12. A centre Plan of Management dated 12 December 2019 (Ex J) has attached to it the two dimensional Evacuation Plan DA03.06B. The Plan of Management specifically notes (at page 3) that this "Plan of Management will require ongoing revision to reflect operational needs and may need to be updated to reflect any DA conditions of consent". At page 20 the Plan of Management states "An Emergency Evacuation Plan will be prepared and attached to this Plan of Management Prior to commencement of operations of the child care centre".
13. Ms Campbell's evidence is that the emergency evacuation plan and procedures will need to be finalised prior to licencing of the centre. This was not contested by Ms Shepherd. There was no evidence to suggest the building design would need to be amended from an emergency evacuation perspective.
14. The child care experts agree (at par 224 of the Joint Report) that the landscaping treatment of the ground surface of stepping stones and ground cover on the emergency evacuation routes (external to the building) on the eastern and northern boundaries are not safe, and an alternative smooth surface is required. The Landscape Plan (Ex C) will need to be amended accordingly.
15. I accept that further detailed work will be needed to the evacuation procedures (emphasis added) for inclusion in the final Plan of Management before the facility is licenced. This can appropriately be addressed by including a condition to that effect, and I note the DCP in Table 5.2.4.1 requires a "fire safety and evacuation plan" for child care centres prior to the issue of an Occupation Certificate.
16. I agree with Ms Sheppard that the Directors Office on the ground floor, which Ms Campbell nominated as the space for conducting private meetings, does not appear large enough to seat three people for this purpose. I also accept that the layout of the office and ground floor circulation areas could be amended slightly to overcome this deficiency and a condition to that effect can be imposed.
17. Having considered the evidence, both written and oral, and taken into account the Regulations and relevant Guidelines I find the proposed development is satisfactory or can be made satisfactory, despite the "shortcomings" in the design or documentation of the internal amenities or documentation of procedures. The relatively minor shortcomings, whether individually or cumulatively, are not so significant to warrant refusal of the application and I am satisfied they can be remedied by suitable conditions of consent.

Public interest and other matters raised by objectors

1. This issue was the subject of contentions 14(a) and (b) of the SOFC. There was no evidence to suggest the development is contrary to the Public Interest, and this was not in contention between the Parties.
2. Almost all of the public submissions raised concerns relating to what might be grouped as traffic and parking impacts. Included in those concerns were the amount of traffic generated, vehicular and pedestrian safety, congestion in local streets and the adequacy of on-site parking provision to satisfy the demand of the development. Traffic impacts and parking provision were not in contention between the Parties and no traffic or parking engineering experts gave evidence. The Court therefore relies on the Traffic and Parking Impacts Report prepared by TEF Consulting traffic engineers, dated 5 December 2019 (Ex G).
3. With respect to parking, the Traffic and Parking Impacts Report includes a full assessment of the development's compliance with the relevant provisions of the DCP (pages 12-17 Ex G) including parking numbers and carpark design requirements. Based on that assessment I am satisfied the on-site parking numbers and arrangements are compliant with the DCP's requirements for child care centres.
4. Even though the development is compliant in terms of parking numbers the Traffic and Parking Impacts Report included a survey of on-street parking in the vicinity of the site, conducted in April 2018 over the morning and afternoon peaks. The results of the survey reveal there was a minimum of 33 vacant on-street spaces within 150m walking distance of the site.
5. With respect to traffic, the Traffic and Parking Impacts Report (Ex G) includes surveys of the existing traffic in the local streets and modelling of the traffic numbers post development. It also acknowledges the narrowness of Rope and Ryan Streets (one traffic lane with parking on both sides as detailed on Figure 2) and takes this into account. Relevantly the Traffic and Parking Impacts Report concludes "The traffic modelling results indicated no undue delays nor congestion issues due to the additional traffic generated by the child care centre." (page 21 Ex G) and "The additional traffic from the proposed development will be minimal and will have no detrimental impacts on street network operation." (page 23 Ex G).
6. Based on this evidence there are no traffic or parking reasons warranting refusal of the application.
7. Other issues raised in submissions, where relevant matters for consideration, have been addressed above or in the conditions of consent.

Conditions

1. As identified at the hearing and following its conclusion the Parties provided differing draft conditions of consent that reflected their differing submissions on this matter. The disputed conditions are dealt with in my findings and directions, other than the disputed part of the condition dealing with demolition and 'locking in' the detailed schedule for use of the outdoor play areas in Attachment F to Ex 3.
2. The Council proposes demolition works be completed within 5 days of commencing, and the Applicant proposes deletion of this time constraint altogether. Council's submission is that the condition should be retained as it is a "standard condition" to protect the amenity of neighbours, the demolition works were not substantial and objectors have raised concerns about construction dust. The Applicant's submission is that 5 days is insufficient time and this condition is not necessary.
3. I concur with Council that the amenity of neighbours with respect to dust impacts arising from demolition works is a valid concern, and this is particularly the case if the demolition works are delayed for any reason.
4. I am however not convinced that 5 days is sufficient time to complete these works, as there is no apparent allowance in this 'standard condition' for unexpected delays, such as occasioned by inclement weather or associated with the removal of asbestos contaminated material. In this case both of the Site Audits (in Ex M) identify that the buildings to be demolished potentially contain hazardous building materials within their fabric, namely asbestos cement sheeting and lead-based paints. I therefore find in favour of the Applicant's submission that this mooted condition not be included, and that a suitable condition to manage dust emissions be included.
5. With respect to the "indicative" daily programme and routine for use of the outdoor play areas in Attachment F to Ex 3, I accept the evidence of the child care experts that there needs to be some flexibility from an operational point of view and to allow for the vagaries of the weather, provided the maximum child numbers and concurrent use of the paired outdoor play spaces as recommended in the Acoustic Report by Day Design (Ex E) are adhered to at all times. I do not accept, however, the premise in the second paragraph of this document that the routine needs to be "extremely flexible" and the document needs to be edited to remove these words as sufficient flexibility is embedded in the programme.

Conclusions

1. For the above reasons I am satisfied that: 1. The development is for a use nominated as permissible with consent in the R2 Zone, meets the zone objectives, and complies with the relevant development standards and other provisions of PLEP 2011. 2. The development is acceptable in terms of how it addresses the relevant provisions of SEPP Educational Establishments and Child Care, subject to conditions as identified in this judgment. 3. Subject to the inclusion of suitable conditions for the removal of asbestos contaminated material during the demolition works, and to satisfy the recommendations in the RAP and Site Audit Statements (in Ex M), the land is capable of remediation and can be made suitable for the proposed use and that the relevant provisions of SEPP 55 are satisfied. 4. I do support the application of a "standard condition" constraining to 5 days the completion of the demolition works. Rather a condition needs to be imposed to manage dust emissions during and post demolition, decontamination and excavation works. 5. The development as a whole, including the building and landscape design, generally constitutes an acceptable response to the local character, streetscape and subdivision pattern. It is also acceptable in terms of its environmental impacts, subject to the undisputed conditions and others as set out in this judgment. 6. The acoustic impacts of the development are acceptable subject to conditions reinforcing the mitigation measures adopted by the acoustic experts in Ex 4 and Ex E. The scheduled use of the outdoor play spaces as set out in Attachment F to Ex 3 is to be redrafted to make clear the management measures as recommended in the Acoustic Report (Ex E) and that they will be strictly adhered to. The revised "indicative programme" is to be included in the Plan of Management. 7. The visual impact of the acoustic barriers is acceptable subject to a suitable condition, with respect to the 2.4m high acoustic barriers to GF2 that the height of the structure supporting the transparent screens (posts and other structure) is not to exceed the 1.8m high boundary fences, and the screens are to be constructed in clear glass. 8. The design of the 2.4 m acoustic screens in GF2 needs to be amended to prevent children from crawling under the 900mm gap at the bottom of the screens. This could be remedied by a suitable condition requiring design changes that secure the 'gap', allow overland drainage flows, access for maintenance (via child-proof gates) and 'spillage' of the nominated planting, for example by using palisade-type fencing. 9. Detailed construction drawings of the 2.4m high acoustic barriers to GF2, incorporating the findings in (7) and (8), are to be provided to Council for its consent prior to the issuing of a construction certificate. 10. The landscape plans are acceptable subject to a condition requiring they be amended with further detailed design and documentation prior to the issuing of a construction certificate to: 1. on FF1 and FF2, include additional natural elements, as recommended by a suitably qualified child care expert, to improve the quality of the rooftop outdoor play spaces; 2. on FF1, ensure all elevated pots and planters within the play areas are located at least 1.0m from the perimeter (to minimise opportunities for climbing over the 1.39m high balustrade); 3. on FF1 and FF2, include sprinklers to any unshaded artificial floor surfaces (to minimise overheating in summer); and 4. replace the stepping stones and ground cover on the ground level emergency evacuation routes with an alternative smooth surface (to facilitate safe child evacuations). 1. The development is acceptable in terms of the facilities and amenities necessary for the operation of the centre subject to conditions that: 1. ensure Play Room 3 includes a suitable bottle preparation area. If a fenced off area is required for child safety and this reduces the indoor unencumbered space requirements of Regulation 107, then the number of children to be accommodated in Play Room 3 is to be reduced accordingly; 2. amend the room design or layout of cots in the cot room of Play Room 1 such that all cots can be readily seen from the Play Room, or suitable CCTV equipment is installed to allow visibility of any otherwise obscured cots; 3. amend the ground floor plan to provide a Director's Office of sufficient size to accommodate a private meeting with seating for no less than 3 people; 4. require the preparation of detailed documentation drawings, including elevations, for all fixed joinery in the play rooms and nappy change rooms, including bottle preparation areas, benches, sinks, shelving, drawers, storage cupboards, main fittings and equipment and the like. These drawings are to be prepared under the supervision of a suitably qualified child care expert to ensure they meet operational requirements and safety standards; 5. require the preparation of a final detailed Emergency Evacuation Plan and Procedures document, that includes the "Evacuation Plan" DA03.06B, as amended due to any plan changes arising from conditions of consent, and is based on the "Draft emergency evacuation procedures" (Attachment G to Ex 3), for inclusion as part of the Plan of Management. This document is to be prepared by a suitably qualified expert; and 6. amend the Plan of Management to include policies for the management and storage on the premises of children's bikes and prams, including where they are to be stored in the basement or adjacent to the building entrance, and a requirement that children's scooters are not to be stored on the premises at any time.
2. Based on the findings and conclusions in this judgment the differing draft conditions should now be reconciled by the Parties, and final agreed conditions of consent prepared and filed for use by the Court in finalising judgment in this matter.

Directions

1. Accordingly, the Court directs that: 1. The Parties are to file with the Court as a Word document, by no later than 30 July 2020 revised agreed conditions of consent, reflecting the findings in this judgment including the conclusions above at [147]. 2. The matter is listed for mention at 4:15pm on 4 August 2020 at Court. 3. Should the Parties comply with direction (1) above, the mention on 4 August 2020 will be vacated, and orders will be made in chambers granting development consent. 4. The Parties are granted liberty to restore on 3 days notice. 5. The matter is adjourned until 4:15pm on 4 August 2020.

Amendments 03 November 2020 - Case title amended to include "(No 2)" 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: 03 November 2020