DVCI Pty Ltd v City of Parramatta Council

Land and Environment Court (NSW)|2020-05-11

Introduction

This is my second judgment in the appeal brought by DVCI Pty Ltd (the Applicant) against the refusal by the City of Parramatta Council (Council) of Development Application No 599/2018 (the DA) for land at 1-3 Ryan Street, Dundas Valley (the site). The DA, as amended, was for the demolition of existing structures, tree removal and the construction of a two-storey child care centre accommodating 76 children, with basement parking for 19 cars.
This matter was the subject of a three-day hearing on 7, 8 and 11 May 2020. I presided at the hearing. On 23 July 2020 I handed down my judgment in DVCI Pty Ltd v City of Paramatta Council (No 2) [2020] NSWLEC 1319 (first judgment). This second judgment needs to be read in conjunction with the first judgment.

Background

For the reasons set out in the first judgment I found that the development as proposed was acceptable, subject to conditions. At that time, I invited the Parties to confer and agree conditions of consent in accord with my reasons. Direction 1 of the first judgment was that the Parties were to file with the Court revised agreed conditions of consent reflecting the findings in the first judgment.
As the Parties failed to comply with Direction 1, and consistent with Direction 3, the matter was listed for mention on 4 August 2020. At the mention on 4 August 2020 Mr Stafford for the Council took issue with certain aspects of the first judgment and in particular the Court's finding, based on the evidence of the child care expert Ms Lynda Campbell (for the Applicant), that the artificial play surfaces in the rooftop open play areas could be sprinklered in order to cool those surfaces in the event of hot weather. Mr Stafford sought leave to introduce further evidence on this matter. The Court declined to grant leave to reopen the case to allow the Parties to put on new evidence on the basis that they had ample opportunity to test the expert evidence during the hearing.

Errata

The Parties have correctly identified two errors in the first judgment. The first is the omission of the word "not" in [147(4)] of the first judgment, as addressed in [36] of this second judgment.
The second error is found at [11] of the first judgment which incorrectly identifies the plans to which the proceedings relate as "filed with the Court on 12 December 2019". On the first day of the proceedings some of those plans were amended by leave of the Court. Leave was granted to rely on amended plans, which were substituted in the Exhibit B set of plans. The proceedings therefore related to the plans filed with the Court on 12 December 2019, as amended by the following plans (emphasis added): 1. Amended plans dated 4/5/20 - DA03.01 Revision E, DA03.02 Revision D, DA03.03 Revision E, DA03.04 Revision E, DA03.05 Revision E, DA03.01 Revision E, DA04.01 Revision D, DA04.02 Revision D, DA04.01 Revision D, DA06.01 Revision D, and DA06.02 Revision D. 2. Amended plans dated 7/5/20 - DA05.03 Revision C. 3. Amended plans dated 31/1/20 - DA05.04 Revision A, DA05.05 Revision A.
The table to Condition 1 of the consent lists the approved plans, including the amended plans, with the exception of the "Evacuation Plan" DA03.06 Revision B dated 4/12/19. The latter plan needs to be added to the table (refer to [32] of this second judgment).

Agreed conditions incorporating judgment findings

Based on the submissions in or attached to the Council's email to the Court of 12 August 2020 and the Applicant's emails of 12 and 13 August 2020 all the conditions in Council's final draft conditions of consent attached to the email from Ms Nuttall of 12 August 2020 at 4:54pm (Council's Final Draft Conditions) are agreed between the Parties, with the exception of the following: 1. The deferred commencement Condition - lot amalgamation; 2. Condition 1b. (e) - Director's office; 3. Condition 1c. and the associated Annexure B - or the alternative Conditions 82A and 82 (e) - Emergency Evacuation Plan and Procedures; 4. Condition 7(r) - or the alternative Condition 47 - Dust mitigation; 5. Annexure A (play schedule) referred to in Conditions 88 and 82 (b) - use of outdoor play areas; and 6. Condition 95A - On-going operation of acoustic barriers
The following table sets out the findings in [147] of the first judgment and the Parties' position on whether the Council's Final Draft Conditions address those findings. Judgment paragraph Paragraph [147] of the first judgment Council's Final Draft Conditions [32],[147(3)] [147(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." The Parties agree Conditions 4a - 4i, 7, 20, 30a - 30b, 57 and 58 address [32] and [147(3)] of the first judgment. Asbestos removal [144], [145] [147(4)] [147(4)] "I do not 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." (Emphasis added). Conditions 7(i), 7(r) disputed. See [35] - [43] below. Dust mitigation The Parties agree the omission of the word "not" is an error. See [36] below [146], [147(6)] [147(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." In addition to the conditions relating to the design of the building or acoustic screens (referred to elsewhere), Conditions 84 - 86, 87 - 87a, and 88 - 95 address noise mitigation measures and are not in dispute. Acoustic mitigation measures Annexure A, (referred to in Conditions 82(b) and 88) in dispute. See [49] - [59] below. [89], [91] and [147(7)] [147(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." The Parties agree Condition 1b. (a) addresses [147(7)] of the first judgment in terms of construction of the barriers, and Condition 95 addresses [89] of the first judgment for the on-going operation of the barriers. Acoustic barriers - height and materials Condition 95A in dispute. See [44] - [48] below. [88], [147(8)] [147(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." The Parties agree Conditions 1b. (b) and 95B address [147(8)] of the first judgment. Gap at bottom of acoustic screens [147(9)] [147(9)] "Detailed construction drawings of the 2.4m high acoustic barriers to GF2, incorporating the findings in [147(7)] and [147(8)] are to be provided to Council for its consent prior to the issuing of a construction certificate." (Emphasis added) The Parties agree with the wording of Condition 1b. which requires submission of amended plans for approval by the Principal Certifying Authority (PCA), as opposed to Council. I accept that variation to the judgment findings. Authority approving amended plans [147(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: [147(10)] (a) 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; The Parties agree Condition 1a. addresses [147(10)(a)-(d)] of the first judgment. Amendments to Landscape Plans (b) 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); (c) on FF1 and FF2, include sprinklers to any unshaded artificial floor surfaces (to minimise overheating in summer); and replace the stepping stones and ground cover on the ground level emergency evacuation routes with an alternative smooth surface (to facilitate safe child evacuations)." [124], [147(11)(a)] [147(11)] "The development is acceptable in terms of the facilities and amenities necessary for the operation of the centre subject to conditions that: The Parties agree Conditions 1b. (c) and 82(c) address [147(11)(a)] of the first judgment. Bottle preparation facilities in Play Room 3 (a) 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;" [127], [147(11)(b)] [147(11) ]The development is acceptable in terms of the facilities and amenities necessary for the operation of the centre subject to conditions that: The Parties agree Condition 97A addresses [147(11)(b)] of the first judgment. Surveillance of cot room in Play Room 1 (b) 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;" [133], [147(11)(c)] [147(11)] "The development is acceptable in terms of the facilities and amenities necessary for the operation of the centre subject to conditions that: Condition 1b.(e) in dispute. See [17] - [22] below Size of Director's office (c) 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;" [126], [147(11)(d)] [147(11)] "The development is acceptable in terms of the facilities and amenities necessary for the operation of the centre subject to conditions that: The Parties agree Condition 1b. (d) addresses [147(11)(d)] of the first judgment. Documentation drawings for fixed joinery (d) 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;" [132], [147(11)(e)] [147(11)] "The development is acceptable in terms of the facilities and amenities necessary for the operation of the centre subject to conditions that: Conditions 1c. and 82 (e) in dispute. See [23] - [34] below Emergency Evacuation Plan and Procedures document (e) 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;" [147(11)(f)] [147(11)] "The development is acceptable in terms of the facilities and amenities necessary for the operation of the centre subject to conditions that: The Parties agree Condition 82(d) addresses [147(11)(f)] of the first judgment. Management Plan - Storage of children's bikes, prams and scooters. (f) 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."

Disputed conditions incorporating judgment findings

Paragraphs [17]-[66] following address those conditions which are still in dispute between the Parties and my findings with respect to those conditions.

Director's Office

Paragraphs [133] and [147(11)(c)] of the first judgment deal with the size of the Director's Office, as follows: "133 I agree with Ms Sheppard that the Director's 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." "147(11) The development is acceptable in terms of the facilities and amenities necessary for the operation of the centre subject to conditions that: … (c) 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; …"
Council has drafted the following Condition 1b. (e) to address this: "1b. (e) amend the ground floor plan to provide a Director's Office of sufficient size to accommodate a private meeting with seating for 3 people. The layout of the Director's Office on the ground floor is to ensure sufficient circulation space is provided."
The Parties agree the Council's proposed Condition 1b. (e) addresses [147(11)(c)] of the first judgment. Council, however, questions whether this is a modification that can be achieved by way of condition to be left to be dealt with later (ie that it is not within power).
The Applicant has agreed to either the Council's wording of Condition 1b. (e), or an alternative the Applicant has proposed, as follows: "1b. (e) The approved Ground Floor Plan DA03.03 Revision E dated 4/5/2020 is to be amended to provide a Director's Office of sufficient size to accommodate a private meeting with seating for no less than 3 people by substituting the room marked 'kitchen' for the 'directors office' on the approved Ground Floor Plan DA03.03 Revision E dated 4/5/2020 and substituting the 'directors office' for the kitchen' on the approved Ground Floor Plan DA03.03 Revision E dated 4/5/2020"
I agree with the Parties that Council's Condition 1b. (e) addresses the findings at [133] and [147(11)(c)] of the first judgment. The degree of change to the Ground Floor Plan necessitated by the condition is minor and I am satisfied the small increase to the size of the Director's Office can be achieved in a manner which does not materially affect the planning outcome, building footprint or operation of the centre, and the condition is of a type commonly used to effect minor design changes of this nature.
Nevertheless, to remove any doubt, as raised by Council, as to whether the Court has power to amend the Ground Floor Plan in the manner proposed by Council's draft Condition 1b. (e) I adopt the alternate wording proposed by the Applicant for a 'swap' of the Director's Office for the Kitchen. The Applicant's alternate Condition 1b. (e) is supported because it removes any uncertainty as to the design and layout and I am satisfied it will result in a larger Director's Office that can accommodate "a private meeting with seating for no less than 3 people", including circulation.

Emergency Evacuation Plan and Procedures

Paragraphs [132] and [147(11)(e)] of the first judgment deal with the emergency evacuation plan and procedures (EEPP), as follows: "132 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." "147(11) The development is acceptable in terms of the facilities and amenities necessary for the operation of the centre subject to conditions that: … (e) 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"."
Council's position with respect to a condition or conditions to address this finding can be summarised as: 1. The condition should be satisfied prior to the issuing of a Construction Certificate, given the consideration in section 4.8 of the New South Wales Planning and Environment, Child Care Planning Guideline, (August 2017) (Guideline) that "Facility design and features should provide for the safe and managed evacuation of children and staff from the facility in the event of a fire or other emergency". 2. The EEPP document needs to address the matters referred to in the Guideline and needs to be approved by the PCA in order to provide oversight.
The Council proposes Conditions 1c. and 82(e), drafted as follows: "1c. Prior to the issue of a Construction Certificate, a detailed Emergency and Evacuation Plan should be prepared by a suitably qualified consultant and submitted for the approval of the PCA, 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), and which must also address; (a) the mobility of children and how this is to be accommodated during an evacuation; (b) the location of a safe congregation/assembly point, away from the evacuated building, busy roads and other hazards, and away from evacuation points used by other occupants or tenants of surrounding buildings; and (c) how children will be supervised during the evacuation in each of the areas of the facility and at the congregation/assembly point, relative to the capacity of the facility and governing child-to-staff ratios." "82(e) Prior to any use of the subject site as a child care centre, the Plan of Management must be updated and submitted to Council for approval to its satisfaction, to: … (e) incorporate the Emergency and Evacuation plan in accordance with Condition 1c. of this consent."
The Applicant proposes the deletion of Council's proposed Condition 1c. and its replacement with a new Condition 82A that reads as follows: "82A An Emergency Evacuation Plan is to be prepared by a suitably qualified expert before occupation or use of the Site that is consistent with the architectural plans as amended by changes arising from conditions of consent and is based on the "Draft emergency evacuation procedures" and "Evacuation Plan" DA03.06B at Annexure 'B' to this consent. All staff are to be trained in all relevant aspects of the Plan. An Emergency Evacuation Plan is to be prepared and implemented consistent with the NSW Rural Fire Service document 'Guidelines for the Preparation of Emergency Evacuation plan'."
The Applicant also submitted the "Annexure B" referred to in its proposed Condition 82A. "Annexure B" is entitled "Draft Emergency Evacuation Procedure" and simply replicates, without amendment, the document referred to in [147(11)(e)] of the first judgment as the "Draft emergency evacuation procedures" (Attachment G to Ex 3).
I agree with Council's submission that any condition needs to include approval of the EEPP to provide oversight. Council's condition grants that role to the PCA, prior to issuing a Construction Certificate, with Council having oversight with approval of the final Plan of Management, which is to incorporate the EEPP under the provisions of Condition 82(e).
The Guideline requirement that "Facility design and features should provide for the safe and managed evacuation of children and staff from the facility in the event of a fire or other emergency" (emphasis added) has been largely addressed, prior to the DA being approved, in the "Evacuation Plan" DA03.06B drawing which shows "the location of a safe congregation/assembly point, away from the evacuated building, busy roads and other hazards, and away from evacuation points used by other occupants or tenants of surrounding buildings" (as suggested in Council's proposed Condition 1c. (b)) as well as evacuation routes, the location of fire hose reels, fire extinguishers, emergency exits and directional signage. The details included on the "Evacuation Plan" DA03.06B was not disputed during the hearing. Nor was there evidence to suggest that the "design and features" of the facility were inadequate in this regard.
The deficiency identified in the first judgment lies in the adequacy of the detailed information surrounding the management of any evacuation, as addressed in the "Draft emergency evacuation procedures" (Attachment G to Ex 3). I found, that additional detail by a suitably qualified expert was required, and that Attachment G to Ex 3, once amended, needed to be combined with the "Evacuation Plan" DA03.06B drawing.
It is appropriate that the EEPP document be finalised and approved by the PCA and submitted to Council as part of the final Plan of Management and that this occur prior to the issuing of an Occupation Certificate. This is consistent with the Parramatta Development Control Plan 2011 (DCP) which suggests a "fire safety and evacuation plan" for child care centres is to be prepared prior to the issuing of an Occupation Certificate.
Having taken into account the submissions of the Parties and the wording and intent of the first judgment, and for the reasons set out in both judgments, I find that: 1. Draft Conditions 1c., 82(e) and 82A are to be deleted; 2. Draft Conditions 82(e) and 82A are to be redrafted, as set out in [33] and [34] below, and inserted as replacement conditions; 3. The table to Condition 1 to be amended to add, after DA03.05, drawing DA03.06, Revision B, Evacuation Plan, prepared by Vic Lake Architect, dated 4 December 2019, because this drawing is called up by the amended Condition 82A; and 4. The Applicant's "Annexure B", being a replica of the "Draft emergency evacuation procedures" (Attachment G to Ex 3), is to be attached to the conditions of consent, because this document is called up by the amended Condition 82A.
Condition 82(e) is to be amended as follows: "82 Prior to any use of the subject site as a child care centre, the Plan of Management must be updated and submitted to Council for approval to its satisfaction, to: … (e) incorporate the Emergency and Evacuation Plan and Procedures document prepared in accordance with Condition 82A of this consent."
Condition 82A is to be amended as follows: "82A Prior to the issuing of an Occupation Certificate a detailed Emergency and Evacuation Plan and Procedures document must be prepared by a suitably qualified consultant and submitted for approval of the PCA. The Emergency and Evacuation Plan is to be: a) consistent with the architectural plans as amended by changes arising from conditions of consent; b) prepared and implemented consistent with the NSW Rural Fire Service document 'Guidelines for the Preparation of Emergency Evacuation Plan' c) based on the "Evacuation Plan DA03.06B" referred to in the Table to Condition 1 and the "Draft emergency evacuation procedures" at Annexure B of the consent, and also address: - the mobility of children and how this is to be accommodated during an evacuation; - how children will be supervised during the evacuation in each of the areas of the facility and at the congregation/assembly point, relative to the capacity of the facility and governing child-to-staff ratios - the training of all staff in all relevant aspects of the Plan. Reason: To ensure the safe evacuation of children in the event of an emergency."

Demolition works - dust suppression

Paragraphs [144], [145] and [147(4)] of the first judgment deal with the Council's proposal to impose a five-day time limit for completion of demolition works. Paragraph [147(4)] also includes an error in the wording: namely the erroneous omission of the word "not" before the word "support" in the first line. Paragraphs [144], [145] and [147(4)] are reproduced below: "144 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. 145 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." "147(4) I do (sic) 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."
The Parties agree that the wording of [147(4)] of the first judgment is in error and that it should be amended to reflect my findings in [145]. I agree with the Parties' conclusion and to remove any doubt, the omission error in [147(4)] of the first judgment is hereby corrected, as follows: I do not 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 (emphasis added).
Condition 47 of Council's Final Draft Conditions provide: "47 Dust control measures shall be implemented during all periods of earth works, demolition, excavation and construction to minimise dust nuisance on surrounding properties. In this regard, dust minimisation practices must be carried out in accordance with Section 126 of the Protection of the Environment Operations Act 1997."
In addition to Condition 47 Council now proposes two further Conditions, 7(i) and 7(r), as follows: "7(i) Demolition is to be completed within 14 days of commencement." "7(r) During earth works, demolition, excavation and construction works: (a) Dust screens must be erected and maintained in good repair around the perimeter of the Site; (b) Dust control measures must be implemented to supress dust and minimise the dust nuisance on surrounding properties; and (c) Where earth is exposed or moved, dust is to be suppressed by regular watering until such time as the soil is stabilised to prevent airborne dust transport. Where wind velocity exceeds five knots the PCA may direct that such work is not to proceed."
In submissions the Council contends that "Dust management measures do not entirely address the mischief to which a time limit is directed. Council contends that some time limit is appropriate where 5 days is not supported." Council does not provide any explanation of the "mischief" it is referring to or why the alternative of 14 days is appropriate. Council also does not support "the balance of the Applicant's drafting for this condition because it is not within power under the EP&A Act to impose a condition requiring compliance with another Act (which is a criminal offence anyway)."
The Applicant's position is that Council's proposed Condition 7(i) conflicts with the finding of the first judgment, that proposed "Condition 7(r) is of a kind one would usually see on a large development where there are stockpiles of materials", and that Condition 47 "is the Council's usual condition and will achieve the outcome envisaged by the judgment."
To be abundantly clear I do not support a time constraint on the completion of demolition works, provided there is a condition to manage dust emissions arising from the demolition works. Council has incorrectly inferred from my first judgment that, while I do not support a five-day limit on demolition works, it is the number of days rather than a limit itself which I do not support. That is incorrect, particularly as there is no evidence before the Court of the basis upon which the notional five days, or revised 14 days, has been arrived at.
I accept the Applicant's submission that proposed Condition 47 is a standard condition for development of this scale and is sufficient to manage the dust impacts associated with the demolition and other works, and that it satisfies the findings of the first judgment. I also agree with the Applicant that Council's proposed Conditions 7(i) and 7(r) go beyond the findings in the first judgment and are unnecessary in light of Condition 47. I therefore find that Council's draft Conditions 7(i) and 7(r) are to be deleted.
The reference in Condition 47 to dust minimisation practices being carried out "… in accordance with Section 126 of the Protection of the Environment Operations Act 1997" is not unusual nor unacceptable. Indeed, along with several other conditions in Council's Without Prejudice Conditions of Consent (Ex 3), and subsequently agreed conditions, the Council has included references to other Acts. Two such examples in Council's Final Draft Conditions are Condition 4b. which refers to the Contaminated Lands Management Act 1997 and Condition 4d. which refers to the Work Health and Safety Act 2011 and the Protection of the Environment Operations Act 1997.

Acoustic mitigation measures (operational) - screens to GF2 and use of outdoor play areas

Paragraphs [146] and [147(6)] of the first judgment deal with management measures to control the use of the outdoor play areas to mitigate acoustic impacts, as follows: "146 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." "147(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."
Draft Conditions 84 to 97 address acoustic impact mitigation measures relating to the operational aspects of the development, including the management measures adopted by the acoustic experts in their joint expert report, the Acoustic Statement (Ex 4), and the recommendations in the Day Design Acoustic Report (Ex E). Draft Conditions 87 and 87 are the "Noise - General" conditions and are not in contention. Conditions 88 to 95 inclusive cover the "Ongoing Operation" of the centre with respect to the protection of acoustic amenity. Draft Conditions 89 to 95 inclusive are not in contention.
Draft Condition 95A and the document entitled "Annexure A", as referred to in draft Condition 88, are in contention between the Parties. Draft Condition 95A provides: "95A All solid acoustic barriers in the area identified as 'GF2' on the approved plans to be constructed in clear glass and the height of the structure supporting those acoustic barriers is not to exceed the 1.8m high boundary fence."
The Applicant submits that draft Condition 95A is not necessary by virtue of draft Condition 95. Draft Condition 95 is not in dispute. It provides: "95 Acoustic barriers shall be constructed to the extents, heights and locations as detailed in Appendix E to the Acoustic Report prepared by Day Design Pty Ltd dated 12 December 2019, to the following specifications: • Acoustic barriers shall be constructed from glass with a minimum surface density of at least 15kg/m, with the exception of glass identified as "opaque" on DA03.04E which is to be the same specification but opaque glass so as also to comprise a visual screen."
The undisputed draft Condition 95 relates to the glazing specification for all the acoustic barriers. Condition 95A on the other hand is limited to the acoustic barriers in the 'GF2' outdoor play area and specifically to the height of the supporting structure that supports the glass barriers in that area (emphasis added). I therefore find in favour of the Council. Both draft Conditions 95 and 95A are valid and complementary, and are therefore retained.
Draft Condition 88 references documents that address how the child care centre is to be operated. Draft Condition 88 provides: "88 The child care centre is to be operated at all times in accordance with: • Annexure A to these conditions, in that the number of children in each area identified in Annexure A, corresponding to the outdoor play areas shown on the approved plans, must not exceeded (sic) the maximum numbers in Annexure A during the times indicated; and • The recommendations and requirements of the following: ○ Plan of Management dated 12 December 2019, as amended by these conditions; and ○ Acoustic Report prepared by Day Design Pty Ltd dated 12 December 2019; and ○ The Landscape Maintenance Schedule referred to in condition 25 above"
"Annexure A" has been prepared by Council. It is an amended version of Attachment F to Ex 3. Attachment F to Ex 3 is entitled "Revised Play Schedule" and includes "indicative" daily programmes and routines for use of the outdoor play areas (Revised Play Schedule). The Council's amended version of the Revised Play Schedule involves several changes including renaming the document "Mandatory Maximum Numbers Outdoor Play Schedule" and deleting all the text immediately following the tables to the "indicative daily programme and routine" for the 2-3 year olds and the 3-5 year olds.
The final wording of "Annexure A" is rendered critical by draft Condition 82(b), which provides: "82(b) Prior to the use of the subject site as a child care centre, the Plan of Management must be updated and submitted to Council for approval to its satisfaction, to: … b) incorporate without amendment the schedule at annexure 'A' to this consent;" (emphasis added).
In the first judgment (at [146]) I accepted the evidence of the child care experts that there needs to be some flexibility in the Revised Play Schedule from an operational point of view. I also accepted the agreed position of the acoustic experts that limiting the number of children using the outdoor play areas at any one time is a key mechanism for containing noise emissions to an acceptable level.
The first judgment provides for amendment of the Revised Play Schedule in two respects: 1. editing out the reference, in the second paragraph, to the programme being "extremely flexible" because "… sufficient flexibility is embedded in the programme." (at [146] of the first judgment); and 2. redrafting "to make clear the management measures as recommended in the Acoustic Report (Ex E) and that they will be strictly adhered to." (at [147(6)] of the first judgment).
The Applicant objects to the Council's version of Annexure A on the basis it is not consistent with the evidence (Attachment F to Ex 3) of the first judgment. The Applicant submits that it is not intended to have a play schedule that is inflexible, with the exception of the maximum number of children, so that noise goals can be met.
I agree with the approach taken by the Council to incorporate the play schedule, as an Annexure to the consent for the reason that such an approach is a practical method of incorporating the Attachment F to Ex 3 document referred to in the first judgment.
I agree with the Applicant, however, that Council's version of Annexure A goes beyond the findings in the first judgment. It introduces a degree of inflexibility not contemplated, nor necessary to protect acoustic amenity, taking into account the other noise mitigation conditions, in particular Condition 90.
Having considered the submissions of the Parties and the wording and intent of the first judgment, and for the reasons set out in this second judgment, I find that: 1. it is not for the Court to finalise the wording of "Annexure A", but rather this be addressed by an amended Condition 88; 2. as the recommendations of the Acoustic Report by Day Design (Ex E) have been incorporated into the conditions of consent, reference to this document is unnecessary; 3. draft Conditions 82(b) and 88 are to be deleted and replaced; and 4. draft Conditions 82(b) and 88 are to be redrafted, as set out in [58] and in [59] below, and inserted as the replacement conditions.
Condition 82(b) is amended as follows: "82 Prior to any use of the subject site as a child care centre, the Plan of Management must be updated and submitted to Council for approval to its satisfaction, to: … (b) incorporate Annexure A as amended in accordance with condition 88 of this consent…"
Condition 88 is amended, and incorporates two parts, as follows: "88 (1) Prior to the issuing of an Occupation Certificate the "Revised Play Schedule" at Annexure A of this consent and being a replica of Attachment F of Exhibit C, must be amended and submitted for approval of the PCA. The amended Annexure A is to: (a) include an introduction that specifically references the Court's first judgment and acoustic expert evidence as the basis of noise mitigation measures necessary to protect the acoustic amenity of residents in the vicinity of the child care centre; (b) attach a verbatim copy of Conditions 87, 87a, 88 to 97 of the consent; (c) include a specific reference to the importance of Condition 90 in restricting the total number of children in the play areas at any one time as a fundamental management mechanism to limit noise, and that Condition 90 and the other acoustic conditions will be adhered to at all times; (d) include a copy of the approved ground floor and first floor architectural plans, clearly identifying the four play areas GF1, GF2, FF1 and FF2 referred to in the Revised Play Schedule; and (e) for the indicative daily programme and routine for 0-2 year olds, (i) delete the sentence "This routine is extremely flexible to allow for this to occur," and (ii) replace the words "in order to follow the recommendations of the Acoustic Report by Day Design" with the words "as required by Condition 90 of the development consent." (2) The child care centre is to be operated at all times in accordance with: (a) Annexure A to these conditions, as amended in accordance with Condition 88(1); (b) the Plan of Management dated 12 December 2019, as amended by these conditions of consent; and (c) The Landscape Maintenance Schedule referred to in Condition 25."

Deferred commencement condition - consolidation of titles

After conclusion of the three-day hearing the Council proposed to include one deferred commencement condition, that the Parties agree is a matter for the Court to determine. The proposed deferred commencement condition involves consolidation of the two allotments into one allotment for the reason, as stated in the draft condition, "to comply with the Conveyancing Act 1919". In the submissions on draft conditions attached to its email of 14 May 2020 at 11:02pm the Council says: "The respondent proposes to insert this condition dealing with lot consolidation in lieu of proposed (standard) condition 31b, as instructed. If the Court does not consider the lot consolidation is required as a deferred commencement condition, the respondent would accept the wording of condition 31b, being Prior to the commencement of any works associated with the erection of any building, the 2 lots comprising the subject site must be consolidated into a single lot. The respondent does not agree to the construction of one building across two lots unless the two parcels of land are consolidated. This is usual practice and it is not clear why the applicant would oppose this."
The Applicant does not disagree with the proposition that the two lots be amalgamated, but rather disagrees that this be the subject of a deferred commencement condition on the basis that there is no planning reason to do so, and that it is not necessary to amalgamate prior to any works commencing. The Applicant proposes an alternative condition requiring amalgamation prior to the issuing of an Occupation Certificate, as follows: "82B Prior to the issue of the occupation certificate, the 2 lots comprising the subject site must be consolidated into a single lot."
I agree with the Applicant that a deferred commencement condition requiring amalgamation of the lots is unnecessary as a pre-condition to the consent becoming operable. It can readily be dealt with as a standard condition in the usual manner. I do not agree with the Applicant however that consolidation of the properties should occur after construction has commenced.
I agree with the Council that the building should not be constructed across the boundary of two lots. This is a reasonable standard condition of new development designed to prevent difficulties in satisfying the Building Code of Australia in the event that amalgamation did not occur.
Accordingly, the deferred commencement condition in the Council's draft conditions of consent is to be deleted, the Applicant's alternative draft Condition 82B is not supported and a new Condition 31A as set out in [66] below is to be inserted in the final set of conditions. With the inclusion of the new Condition 31A, Condition 77 becomes redundant and can be deleted.
The new Condition 31A is based on: 1. Council's alternative wording as set out in [60] above; and 2. Incorporates a requirement similar to that in the draft deferred commencement condition (now deleted) that evidence of the amalgamation is to be provided, albeit in this instance to the PCA.
To be abundantly clear the drafting of the new Condition 31A is as follows: "31A Prior to the commencement of any works associated with the erection of any building, the 2 lots comprising the subject site must be consolidated into a single lot. Suitable documentary evidence issued by the Land Registry Services NSW confirming the consolidation of the land into one lot must be submitted to the PCA."

Directions

The Court directs that: 1. The Parties to confer and prepare, within seven days of this judgment, the final conditions of consent consistent with the reasons in my judgments in these proceedings. 2. Upon receipt of the Parties' agreed final conditions of consent, I propose to make final orders upholding the appeal and granting development consent to the application.

Addendum made on 18 November 2020

In accordance with the directions in paragraph [67] of my judgment delivered on 3 November 2020, the parties provided me with a Word copy of their consolidated conditions of consent, consistent with the findings in my judgments in these proceedings. I am now satisfied that consent can be granted in accordance with those conditions.
Accordingly, the final orders of the Court are: 1. The Applicant is granted leave to rely upon the plans and documents, including amended plans, as listed in the tables at Condition 1 of Attachment A. 2. The appeal is upheld. 3. Development application DA No 599/2018 seeking consent for the demolition of existing structures, tree removal and the construction of a two-storey child care centre accommodating 76 children with basement parking for 19 cars, at 1-3 Ryan Street, Dundas Valley, is approved subject to the conditions set out in Attachment A. 4. The Exhibits are returned with the exception of Exhibits 3, 4, B, C, E, J and M.

Acting Commissioner of the Court Attachment A (Conditions) (400867, pdf) Plan (802348, pdf)

Amendments 18 November 2020 - See Addendum at [68]-[69]. 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: 18 November 2020

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Cases Cited (1)