The Applicant submits that a materials and finishes board accompanies the architectural plans.
The Respondent submits the ESD Report is deficient as it is silent on the product specification of external walls, roofs and the like.
The text in the main body of the ESD Report appears somewhat unhelpful in terms expected by Part C14.3 of the PDCP. It includes numerous statements that are promissory and not demonstrative.
For instance, where particular (f) would appear clear in its terms, seeking product specifications for energy efficiency properties, including thermal mass, the ESD Report states:
[2]
"Proposed building walls have been selected for the external walls of the development because of their thermal mass and to aid in passive heating and cooling of the building.
These external walls will have insulation to the internal side to limit heat loss in winter and minimise excessive heat gain in summer.
As such, it is considered that they are consistent with current requirements and are anticipated to ensure the thermal comfort of their occupants year round.
The current building design identify that the roof will be light in colour. This will assist in ensuring that excessive heat is not gained in summer for the identified units, as the light colour will encourage less absorption and more reflectance."
[3]
However, the ESD Report contains Appendices that appear more directed to the task required by Part C14.3 of the PDCP.
Appendix B of the ESD Report, which appears to have been prepared using software known as Speckel, states at p1:
[4]
"Speckle provides various calculations in line with the National Construction Code 2022 - Volume 1 - Section J Energy Efficiency. These calculations are in line with all applicable NCC equations or NCC referenced primary or secondary documents, for them to represent an accurate performance solution against the performance requirements - J1P1 Energy Use. A Performance Solution must be shown to comply with the relevant Performance Requirements through one or a combination of Assessment Methods. Speckel is a valid Assessment Method by comparison with Deemed-to-Satisfy provisions of each relevant area."
[5]
The method adopted in the assessment set out in Appendix B is summarised as follows:
[6]
(1) The proposed building has been modelled with the proposed building fabric, and compared against a reference design.
(2) Greenhouse gas (GHG) emission factors adopted in the assessment are from Volume 1, Specification 34 Modelling Parameters for J1V3 Table S34C3 GHG Emission Factors (kgCO2-e/GJ).
[7]
The results summarised in Appendix B are as follows:
[8]
(1) A simulation of the proposal produces building emissions of 112.84 kg/CO2-e/m2, which is less than the emissions in the reference design of 151.18 kg/CO2-e/m2)
(2) The R-values of all walls modelled include the effects of thermal bridging.
(3) External brick veneer is given an R value of 2.09 (m2k°/W)
(4) Roofs are given an R value of 3.20 (m2k°/W)
(5) Windows are given a U-value of 3.50, and a solar heat gain co-efficient (SHGC) of 0.35.
(6) PV cells are given an area, ascribed efficiency factors and a system size or capacity in kWh.
[9]
In summary, and absent evidence to the contrary, it would appear the energy efficiency properties of the proposed development have been modelled, and have been compared to a reference building that has concludes the proposal has a thermal performance greater than a reference design.
A Solar Access Assessment at Appendix C likewise sets out the parameters of its study.
A Deemed-to-Satisfy assessment of the National Construction Code (NCC) requirements at Part J is at Appendix E. On p3 of the Appendix, the method is described as a whole façade performance, comprising walls and glazing, with each elevation mapped according to orientation.
No overshadowing or shading is assumed in the modelling, unlike the circumstances likely to result from landscaping planting over time on this site.
In all of the appendices, properties of the brick veneer construction shown on the architectural plans to the first floor are included, including values for conductivity, air cavity, membrane performance and the aggregate composition of the wall assembly.
Roofing design is also identified in the controls at Part C14.3. Control (2) is in the following terms:
[10]
"Dark coloured roofs which retain heat will not be supported. All buildings and ancillary development are to minimise their contribution to the urban heat island effect by meeting the following requirements for cool roofs:
[11]
a) Achieve the nominated Solar Reflectance Index (SRI) minimums:
[12]
i) for roof pitches less than 15, a SRI minimum of 64, with a minimum 3 year manufacturer guarantee.
ii) for roof pitches greater than 15, a SRI minimum of 34, with a minimum 3-year manufacturer guarantee.
iii) for rooftop terraces a SRI minimum of 28, with a minimum 3-year manufacturer guarantee.
[13]
b) At least 75% of the roof area is to meet nominated SRI values and/or be designed as a green roof. Areas where solar panels (PV) are mounted flat on a roof are excluded, all other roof areas with PV count toward the Cool Roof area calculation."
[14]
The Respondent submits that while some of the proposed roofing may be of a solar reflectance that conforms with the control, not all of the roof is Colorbond. Instead, the roof plan identifies area of concrete roof, on which PV cells are located. No calculation is provided as to the SRI values of the roof, nor the proportion of roof excluded by the PV cells in accordance with Control (2)(b).
The SRI of the roof is stated to be a minimum of 34, with a 3 year guarantee from the manufacturer. (Exhibit C, p20). While the colour of the concrete roof is not separately described, I accept that concrete when poured, cured and waterproofed is unlikely to be characterised as a dark coloured roof.
It is also relevant to record that, following a question from the Court as to an apparent error or omission on the architectural plans and section drawing, further amended architectural plans and further amended landscape plans were tendered, unopposed.
The further amended architectural plans (Exhibit W) show an area of the roof to the east of the lift, fronting Marsden Road, to have deep planting of around 600mm in depth, and a width in plan of 2.1m.
While not an insubstantial area of rooftop landscape, the Respondent considers the planter to fall short of answering the definition of 'green roof' at Part C14.1 (D) which is:
[15]
"Green roof: A green roof is vegetation covering at least 30% of available rooftop space ‐that is, space which is not occupied by structures housing plant, equipment, or stairway accesses. A green roof should provide measurable environmental benefits. The green roof includes a vegetated layer, growing medium, and a waterproof membrane. Plants grown in sectioned lots are acceptable, however, potted plants/planter boxes which cover less than 30% of available rooftop space are not considered as a green roof. Additional to the minimum 30% vegetation cover, a green roof can include facilities for renewable energy, water collection infrastructure, walkways, furnishings, and the like."
[16]
Whether the area of deep landscape planting on the roof is a green roof or not, I consider such an area of planting within the roof plane to be a positive impact on urban heat, and serve to limit negative impacts of heat absorption through such a substantial, and deep, area of landscape planting, consistent with the objectives of Part C14.3 (A) of the PDCP.
Clause 7.4 of the PLEP requires the Court to have regard to the principles of sustainable development by considering each of the following, that are relevant to the development:
[17]
(a) conserving energy and reducing carbon dioxide emissions,
(b) embodied energy in materials and building processes,
(c) building design and orientation,
(d) passive solar design and day lighting,
(e) natural ventilation,
(f) energy efficiency and conservation,
(g) water conservation and water reuse,
(h) waste minimisation and recycling,
(i) reduction of vehicle dependence,
(j) potential for adaptive reuse.
[18]
As stated above, I am satisfied that the ESD Report adequately addresses the energy conservation and energy efficiency measures required to be considered by cl 7.4 of the PLEP. In terms of building design and passive solar and daylighting, I consider the orientation of the building, with eaves and awnings to windows exposed to northern sunlight, suited to capturing northern daylight in the 3-5 year old indoor play areas at appropriate times of the year, and excluding the same at times when the sun is higher in the sky.
As it is agreed that landscape planting provides shading to the western elevation (at [73]) and I find the landscape planting selected to provide shading at appropriate times of the year to the northern elevation (at [144]-[145]), I also consider the contribution made by the landscape design in the western and northern setbacks to be a positive aspect of passive solar design.
As for natural ventilation, I accept there are limits the extent to which the development can be naturally ventilated given the perceptions of noise in residential areas that are addressed in more detail below, and as addressed by the Court in Basevski v City of Ryde Council[2022] NSWLEC 1387, at [74]-[80]. Notwithstanding those limitations, the planning experts agree that natural ventilating is provided by doors to play rooms that are permitted to remain open other than when amplified music or singing occurs.
I consider the proposal for water reuse and conservation in the form of onsite rainwater tanks for reuse in irrigation, and water efficiency appliances to be acceptable features of the development.
I also consider the Waste Management Plan prepared by Dickens Solutions dated March 2022 (Exhibit E, Tab 18) to satisfactorily address waste minimisation and recycling.
[19]
The Respondent contends that the proposal has unacceptable acoustic impacts to Nos 27, 33-35 Marsden Road and 10 White Parade.
An Amended Noise Impact Assessment, prepared by Day Design Pty Ltd, dated 5 December 2023 (Acoustic Assessment) (Exhibit J) identifies noise sensitive receptors in the vicinity of the subject site, located on Marsden Road and to the rear at 10 White Parade.
In order to determine background Noise Levels for the site, ambient noise levels were logged between 10 February 2022 - 22 February 2022, ranging from 44 dBA in the early morning to 34 dBA between 7am - 6pm.
Mr Cooper considers the location of certain loggers and receivers located by Mr Gauld in the preparation of the Acoustic Assessment to be deficient, and the method adopted by Mr Gauld to be at odds with the appropriate method of determining the background level, which is by reference to the National Policy for Industry (NPfI) that requires long term, operator-attended monitoring. This is not how the ambient noise levels were taken by Mr Gauld.
Elsewhere in the first joint report, I note the experts agree that the noise criteria within the NPfI are not applicable to noise emission from child care centres (para 152).
In reply, Mr Gauld argues that attended monitoring would not have any effect on the background noise level. Nevertheless, he attended site on 6 February 2024 to obtain attended measurements that correlate with measurements taken prior.
The Acoustic Assessment concludes that, on the basis of measurements and calculations undertaken, the level of noise emitted by the proposed development will meet acceptable noise level requirements of the Council, the Child Care Planning Guidelines, and the Guideline for Child Care Centre Acoustic Assessment, published by the Australasian Association of Acoustic Consultants (AAAC) (the AAAC Guideline).
The acoustic experts differ on the relevance and weight that should be given by the Court to the AAAC Guideline.
Most relevantly, version 3.0 of the AAAC Guideline recommends adopting a background noise level for outdoor play areas of Leq,15min 45 dB(A) for child care centres proposed in residential areas where the background noise level is less than 40 dB(A).
As I understand it, this means, in quiet residential areas, where the background noise level is less than 40 db(A), a baseline or default factor of 45 dB(A) should be adopted.
The Acoustic Assessment adopts such a baseline factor, which Mr Cooper objects to because Mr Gauld has not provided material that substantiates the amended criteria in version 3 of the AAAC. Furthermore, under the earlier version of the AAAC Guideline, no default background level applied to outdoor play. As such, a site with the background noise levels at [182] are likely to have had a limit of 39 dBA applied to outdoor play under the earlier version of the AAAC Guideline and a limit of 45 dBA under the current AAAC Guideline.
Mr Cooper sets out his own preferred practice when applying the AAAC Guideline at para 143 of the initial joint report, noting a level of 45 dBA is a significant increase above the noise level of 34 dBA experienced by most residents in the area today.
Mr Gauld's evidence is that the AACA Guideline was developed to fill a void where no specific policy applicable to child care centres otherwise exists, and to resolve differences of opinion between acoustical professionals.
The Applicant submits that Mr Cooper's opposition to the AAAC Guideline is at odds with evidence given in other matters before the Court (Exhibit S), where Mr Cooper appears to rely on the AAAC Guideline.
[20]
The joint expert report initially prepared by the acoustic experts was filed with the Court on 19 February 2024. In it, the experts noted that as particular (h) of the acoustic contention, Contention 6, was not pressed, no further consideration had been given to that particular.
However, at the onsite view two weeks later on 4 March 2024, the Respondent advised particular (h) was indeed pressed. The Court directed the experts to confer on that topic, and on areas that had also been identified in the initial joint report as unresolved, including the review by Mr Cooper of calculations provided by Mr Gauld in Annexure C of the joint report filed two weeks earlier. On 5 March 2024, the experts filed a supplementary joint expert report (Exhibit 9).
Contention 6, particular (h) is in the following terms:
[21]
"The acoustic assessment has not included noise from outdoor play place [sic] in the cumulative noise assessment. Section 6.4.1 of the acoustic report only refers to the cumulative impacts of noises emitted from indoor play, car noise and mechanical plant. The level of noise impact is likely to be greater than contemplated in the acoustic report when noise from outdoor play is included in the cumulative assessment."
[22]
It is commonly held that versions 2 and 3 of the AAAC Guideline require noise from outdoor play to be calculated and expressed separately from the cumulative noise from indoor play, traffic and mechanical plant.
The Amended Noise Impact Assessment, prepared by Day Design dated 5 December 2023 (Acoustic Assessment) (Exhibit J) followed the requirement of the AAAC Guideline, but did not calculate the cumulative result of combining outdoor play with that of indoor play, traffic and mechanical plant.
Section 6.4.1 of the Acoustic Assessment sets out the noise levels derived from indoor play, car noise and mechanical plant.
Section 6.4.2 sets out the noise levels derived from outdoor play areas. The basis of these levels derives from separating the 80 children into three groups, described as follows:
[23]
"Group A:
Ground Floor Outdoor Play Area
10 x 0-2 year olds (10 children); and
5 groups of 2 x 2-3 years olds (10 children).
Group B:
First Floor Level outdoor play area
3 groups of 10 x 3-5 years olds (30).
Group C:
Ground Floor Outdoor Play Area
5 groups of 2 x 3-5 year olds (10 children).
First Floor Level Outdoor Play Area
2 groups of 7 x 3-5 year olds (14 children); and
6 x 3-5 year olds (6 children)."
[24]
In the period available following the onsite view, Mr Gauld relies on the addition of the calculations contained in the above assessments to derive a cumulative figure sought by the particular.
On the assumption that 50 children are playing outside, and all 80 children proposed on the site are inside, simultaneously, then the cumulative noise generated is 45.8dBA, being less than 1 dBA above the noise criteria of 45 dBA for outdoor play.
Mr Gauld also provides alternative scenarios, consistent with the Plan of Management (Exhibit D), including:
[25]
(1) Where Group A (50 children) are outside, the remaining 30 children would be inside.
(2) Where Group B (20 children) are outside, the remaining 60 children would be inside,
(3) Where 30 children are playing outside, the remaining 50 children would be inside.
[26]
In all scenarios, Mr Gauld notes the cumulative noise generated onsite by indoor play, traffic and mechanical ventilation, and by children playing outside, is less than 1 dBA above the noise from children playing outside alone.
The experts agree that the noise levels in the Acoustic Assessment set out in Table 7 (Exhibit J) is based on all the children inside at the same time, engaged in active play. Further, that if less than all the children were inside, so some were outside, the calculated noise level for indoor noise would be lower than the figures presented in Table 7.
However, Mr Cooper notes:
[27]
(1) The noise registered at Location R3 resulting from Group C increases from 45.4 dBA to 45.6 dBA; and
(2) that additional noise levels at Receiver R2A is likely to exceed the 45 dBA background by 2 dBA.
(3) Indoor play noise levels may exceed those modelled by Mr Gauld depending on the final selection of floor finishes and the like.
[28]
Part D5.2(6) of the PDCP provides guidance in respect of noise for child care centre development.
[29]
"6) Noise
a) Outside playing areas shall be designed and located to minimise noise impact on any noise sensitive adjacent properties. Separation between boundary fencing and areas occupied by the children may be required.
b) Where there may be noise impact on adjacent properties, fencing shall be of a height, design and material (e.g. masonry) suitable to contain noise generated by the children's activities. This ensures the children may play outside without time limitations in accordance with licensing requirements.
c) Where a site may be affected by traffic, rail or aircraft noise, the child care centre shall be designed to minimise any impact on the children and staff. A report from an acoustic consultant may be required to support the proposal. (Design elements may include double glazing, insulated walls, locating sleeping rooms in protected areas and solid fencing).
d) A noise impact assessment may be required for the development of a child care centre proposing to cater for 40 children or more, or where surrounding land uses may have an impact on the proposal.
The objectives should be to limit the impact of the child care centre on adjacent properties, and also to limit the impact noise from external sources may have on the child care centre. While noise can be measured, the intent is to also minimise nuisance which is subjective by nature. This may be achieved either by physical separation, design and layout of the centre or by implementing noise mitigation measures, such as acoustic treatments to buildings.
e) A noise impact assessment report should address the relevant provisions of the Noise and Vibration section of this Plan."
[30]
The Acoustic Assessment assesses the acoustic impact of the proposed development by measuring noise levels on the site, and by identifying residential receptors on adjoining properties. Additionally, it calculates the cumulative noise levels generated by indoor play, car and traffic noise and mechanical plant, and outdoor play areas. Finally, the Acoustic Assessment proposes a noise management plan setting out recommendations for sound barrier walls, mechanical plant and the like.
I accept that the AAAC guideline is a reasonable basis for assessment. The Court is familiar with the AAAC Guideline, having accepted it as an appropriate guideline in Raland Constructions Pty Ltd v Hunters Hill Council[2021] NSWLEC 1535. Likewise, the Court accepted the efficacy of the same AAAC Guideline in Force Way Group Pty Limited v City of Parramatta Council[2021] NSWLEC 1024.
The AAAC Guidelines has been developed by professional acoustic practitioners, within the forum of a recognised professional organisation, and is particular to child care facilities such as the proposed development.
While it is not a statutory document, it is unreasonable, in my view, for Mr Cooper to describe an industry standard, developed by a professional membership organization such as the AAAC as 'unsubstantiated', or for any burden to substantiate an industry standard to fall to Mr Gauld.
[31]
Clause 7.30 of PLEP precludes the grant of consent unless the consent authority, or the Court exercising the functions and discretions of the consent authority on appeal, is satisfied in respect of five things:
[32]
(a) maximise green infrastructure, and
(b) retain water in the landscape, and
(c) use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and
(d) use building, paving and other materials that minimise heat impacts, and
(e) reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources.
[33]
I am satisfied the proposal maximises green infrastructure in the following ways:
[34]
(1) Firstly, through a comprehensive plan for landscape planting in the front setback, northern setback and western setbacks in particular that demonstrates conformity with the controls at Section C14.2 of the PDCP such as supporting new and existing trees with understorey planting that, when mature, will provide effective shading to the western facades, and outdoor play areas proposed, and by providing passive solar shading and solar access through species selection, noting in particular the role of the Oakville Crimson Spire within the northern setback in providing solar access to indoor spaces in winter (at [145]), while not overshadowing solar panels proposed on the rooftop.
(2) Secondly, by the expansion of tree canopy beyond that evident today, I accept the method by which the Applicant calculates the extent of tree canopy growing over time, as summarised at [70]-[72]. Adopting such a method assists in an assessment of the impact of tree removal, and canopy loss, alongside the medium to long term nature of landscaping, especially where canopy trees are desired.
(3) Thirdly, by integrating landscape planting into the building at the perimeter of the outdoor play area on Level 1, and in the large, deep planter proposed on the roof that, while it does not answer the description of a 'green roof', is substantially consistent with the controls for green roofs at Part C14.2, Section 1.2(B)(1), including:
(a) The roof structure supporting the planter is concrete, and so possesses the appropriate load bearing and waterproofing characteristics to support the installation of green features.
(b) Plants nominated on the plant schedule provide coverage and are resilient to extreme heat and drought, with no reasons why the area cannot be supported by an automatic watering system to irrigate the area, connected to the onsite rainwater tank.
(c) The proposal is authored by a landscape architect and a maintenance plan is proposed (Landscape Maintenance Plan) (Exhibit G), and supported by conditions of consent, agreed as without prejudice by the parties.
[35]
Next, I am satisfied the proposal retains water in the landscape in three ways:
[36]
(1) Firstly, through the detention of stormwater and rainfall in onsite detention that is available for reuse on site in irrigation, in terms similar to those at [178].
(2) Secondly, by reference to the Landscape Maintenance Plan, an irrigation system that I understand is to be connected to the rainwater tank, is to be provided.
(3) Thirdly, through the proposal for 'waterplay' and 'splash table', identified on the landscape plans and located to the south of the site (Exhibit V)
[37]
On the basis of those reasons at [158]-[162], and the following design measures, I am satisfied the thermal performance of the development achieves a high degree of passive cooling.
The architectural plans depict masonry construction, recognised to have high thermal mass and performance, finished in light coloured render and paint, with minimal paving that, taken together, I am satisfied minimises heat impacts. While the proposal also depicts areas of artificial, or synthetic turf, I note the 0-5 year old outdoor play area on the ground floor is substantially covered by the first floor structure, providing shelter and shade that will also minimise heat impacts, and protect children from over exposure to ultraviolet radiation, in accordance with section 4.11 of the Child Care Planning Guidelines. That portion of synthetic turf not covered by the level above is located to the south of the proposal. Finally, I note the selection of the synthetic turf, set out in the Landscape Maintenance Plan, is for 'All Seasons Cool Play'.
Finally, I am satisfied the proposal reduces its reliance on mechanical ventilation and cooling systems by adopting areas of deep soil and layered landscape planting to the western setback that provides shading from western sun; in similar terms to [175], by proposing eaves and awnings over north facing walls and windows, and through shading devices to open outdoor play areas. On the basis of the area of glass block roofing integrated into the level 1 outdoor play area, which admits daylight to the ground floor 2-3 year old indoor play area, and the solar access assessment at Appendix C of the ESD Report (that does not appear to consider the area of glass block flooring), I am also satisfied the proposal conserves energy and minimises heat sources.
In Part D5.2 of the PDCP, Section A, background to the provisions applicable to child care centres sets out reasons a proposal for a child care centre will not be supported, including:
[38]
"a) the service provided by the centre does not meet a demonstrated need for child care services in the local area;
b) access is from a major road or in close proximity to a major intersection where there may be safety concerns;
c) access is from a local street where there may be impacts on amenity due to traffic and parking;
d) the current use or any permissible use under the zoning of the adjoining premises produces unacceptable levels of noise, fumes or emissions, or poses a potential hazard by reason of activities or materials stored on site;
e) noise produced by roads, railways and aircraft are likely to have an adverse impact on the site; or
f) the site may be subject to contamination, within close proximity to high-voltage electricity transmission lines, or subject to external impacts that may be harmful to the staff and children;
unless the applicant can demonstrate satisfactorily that the matters listed will not have a detrimental impact on the child care centre."
[39]
For reasons set out earlier in this decision, and on the basis of satisfaction as to jurisdictional preconditions to the grant of consent set out below, I am of the view that the Applicant has demonstrated satisfactorily that the proposal does not offend any of the reasons above, and so should be supported by the grant of consent.
[40]
State Environmental Planning Policy (Biodiversity and Conservation) 2021
[41]
In a manner similar to that summarised at [213], I have considered the extent of tree removal proposed by the development, and replacement landscape planting and maintenance. I conclude that the extent of vegetation proposed to be cleared is acceptable when the extent of replacement planting is considered. As such, I see no reason why the consent granted by the Court should not also extend to the proposed clearing, pursuant to s 2.6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021.
[42]
State Environmental Planning Policy (Transport and Infrastructure) 2021
[43]
Section 3.23 of the Infrastructure SEPP precludes the grant of consent until and unless the consent authority, or the Court on appeal, has considered any applicable provisions of the Child Care Planning Guidelines.
Childcare Guideline C1 counsels proponents of such facilities to consider the acoustic and privacy impacts of the proposal in residential areas such as this, and to give consideration to setbacks and siting, visual amenity and traffic and parking impacts.
Childcare Guideline C5 and C12 fall within local character, streetscape and public domain interface. For reasons set out at [124]-[148], I have considered those issues and conclude the development is not contrary to either C5 or C12.
Childcare Guideline C17 counsels that appropriate planting should be provided and for that to be integrated with fencing. The proposal does so, particularly to the north, west and south boundaries with neighbours.
Childcare Guidelines C23 and C24 deal with acoustic privacy and noise levels that, for reasons set out at [180]-[211] are satisfactorily addressed.
[44]
State Environmental Planning Policy (Resilience and Hazards) 2021
[45]
Consistent with the terms of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazard SEPP) I have given consideration to the potential contamination of the site.
The Applicant relies upon a Preliminary Site Investigation (PSI) prepared by GCA dated 22 February 2022 that concludes the site is suitable for the purpose of the development proposed to be carried out, subject to recommendation at p 18 of the PSI, and about which there are conditions of consent proposed.
[46]
(1) The appeal is upheld.
(2) Development application DA22/0435 for demolition of existing structures, vegetation removal, site consolidation and construction of a new centre-based child care facility with a capacity of 80 children, including basement car parking for 20 vehicles at 29 and 31 Marsden Road, St Marys NSW 2760 is determined by the grant of consent, subject to conditions of consent at Annexure A.
(3) All Exhibits are returned, except for Exhibits E, F, J, K, and W.
The Respondent contends that the disposal of stormwater from the site requires a legal right of discharge over adjoining properties that has not been demonstrated by the Applicant.
Furthermore, the development application does not seek consent for drainage works.
Additionally, the Respondent considers failure to secure land owners consent for drainage over adjoining properties to be an impediment to the grant of consent.
Accordingly, with no legal right of discharge of stormwater, and no proposal to seek consent for the same, the Court cannot be satisfied that the need for public amenities or public services will be met, pursuant to cl 7.7(2)(d) of the PLEP.
The Respondent submits that the disposal of stormwater is a public amenity that connects to a public system, and directs the Court's attention to cl 7.7 of the PLEP that deals with servicing a site in the following relevant terms:
(1) The objective of this clause is to ensure that development of land to which this Plan applies reflects the availability of services.
(2) Before granting development consent for development on any land to which this Plan applies, the consent authority must be satisfied that -
(a) the development will be connected to a reticulated water supply, if required by the consent authority, and
(b) the development will have adequate facilities for the removal and disposal of sewage, and
(c) if the development is for seniors housing, the development can be connected to a reticulated sewerage system, and
(d) the need for public amenities or public services has been or will be met.
…
The Applicant has filed an application in Class 3 of the Court's jurisdiction, pursuant to s 40 of the Land and Environment Court Act 1979 (LEC Act) (Exhibit R), seeking an easement on title from the relevant land owners to the south of the site, including from the Owners Corporation of Strata Plan 30787 given the proposed path for drainage is on both common and private property.
The Applicant submits that the development the subject of the development application does not propose works on adjoining land, but rather depicts a path for the disposal of stormwater over adjoining land, subject to the easement that is sought under s 40 of the LEC Act.
Furthermore, the purpose of depicting that pathway is to permit the Court to assess the impacts of those off-site works, in a manner consistent with that found in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) NSWLR 638; [2011] NSWCA 349.
The land on which development is proposed to be carried out is not the adjoining land, and does not involve two stages as in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 (Al Maha) at [157], and does not propose conditions of consent for the undertaking of such works, which further distinguishes this case from that of Al Maha.
Instead, the Applicant has made an application to the Court for an order imposing an easement over the relevant lots on adjoining land under s 40 of the LEC Act, and proposes a deferred commencement condition (Exhibit 11).
The terms of the deferred commencement condition proposed in the without prejudice conditions of consent are, in summary, that within 48 months of the grant of consent:
1. A separate development application is required to be lodged for drainage through 33-35 Marsden Road and 175 Carpenter Street.
2. Written evidence of an entitlement to drain through those sites must be provided to the Respondent.
3. Stormwater drainage plans must be amended to ensure drainage to the northern boundary is 1.5m below surface level, and the subsurface rainwater tank is shown under the driveway.
An assessment of the impacts arising from such an easement has been undertaken by the Applicant.
A Stormwater Management Report, prepared by Mr Anthony Basha dated December 2023 (Stormwater Report) (Exhibit K) assesses two options for stormwater drainage of the site. Drainage to Marsden Road is discounted because of the fall of the land that would require excessive fill on the site.
On 8 February 2024, the Applicant filed with the Court a Notice to Admit Facts (Exhibit Q) seeking an admission from the Respondent that it will not permit stormwater to be drained from the proposed development to Marsden Street, St Mary's. I note here the Respondent filed a Notice to Dispute Facts on 22 February 2024 and the matter remains unresolved.
In any event, the Stormwater Report concludes the preferred option is to drain to the rear of the site by underboring from the subject site to an existing pit viewed by the Court in the driveway of 33-35 Marsden Road, then deviating to a second pit located to the rear of that site, before it connects with an existing drainage pipe that drains to Carpenter Street.
The Stormwater Report demonstrates there are no implications for structures in achieving the preferred drainage path; sets out a construction method, identifies features such as the Jacaranda tree on the adjoining site; and the location of the easement between the second pit, and Carpenter Street.
A letter of addendum prepared by Ms Mackenzie (Exhibit N) considers the potential impact of the proposed underboring for stormwater drainage on the Jacaranda tree located on 33-35 Marsden Road to a pit sighted by the Court at the onsite view.
Ms Mackenzie's opinion is that the proposed underboring is a sufficient distance from the structural root zone of the tree. The Aboricultural experts agree that the depth at which a stormwater connection is proposed, subject to an easement being granted, does not adversely impact the Jacaranda Tree on the adjoining land.
In the course of the hearing, the Applicant also provided evidence of consent by two of the owners of dwellings at 33-35 Marsden Road, noting the alignment of the proposed future stormwater drainage crosses a corner of two properties at No 4/33-35 Marsden Road and No 7/33-35 Marsden Road that have not provided such consent.
Notice of Motion to re-open
On 11 April 2024, the Court advised parties that the matter would be listed for judgment the following day. The same day, the Applicant filed a Notice Motion under an Affidavit of Ms Emma Jane Fleming, marked EJF-1, to re-open the proceedings to adduce evidence in respect of the proposed stormwater arrangements proposed in the development.
On 12 April 2024, the matter was listed before me for hearing on 2 May 2024, that was subsequently vacated and listed before me on 20 May 2024.
An amended Notice of Motion, marked EJF-2 was filed with the Court on 26 April 2024 under Affidavit of the same deponent that was read, unopposed by the Applicant on 20 May 2024.
The Applicant submits that no amendment to the application is sought, and that it remains the case that no works are proposed in the downstream easement, and neither does the Applicant purport to provide evidence of owner's consent as this is the subject of a separate and further application.
Instead, the Applicant documents the in principle agreement of the Owners Corporation of SP 30787, recorded in Minutes of an Extraordinary General Meeting (EGM) held 21 March 2024, to accept the offer of compensation for the creation of an easement on the common property at 33-35 Marsden Road, St Mary's. The resolution put to that effect in the EGM was resolved in the affirmative.
The Notice of Motion marked EJF-2 also contains in principle agreement from the owners of No 3/33-35 Marsden Road, and No 7/33-35 Marsden Road that was not in evidence during the hearing of the substantive proceedings.
The Applicant also submits that such agreement is consistent with Section 2.6.1 of the Penrith City Council Stormwater Drainage Guidelines for Building Developments (Exhibit Y), which includes, at (1), written agreement from registered proprietors granting an easement to drain water.
The Respondent neither consents to, or opposes the Notice of Motion, however relies upon an Affidavit in the name of Ms Danielle Le Breton filed with the Court on 15 May 2024 that, according to the Respondent, fixes a date at which the Applicant was made aware that owners consent for proposed stormwater drainage was required, but that it was not until 31 January 2024 that letters of offer were sent to those owners at [35].
Furthermore on the basis of the additional evidence the Applicant relies upon, the contentions remain pressed.
I consider the material contained in EJF-1 and EJF-2 directed to the contentions as pressed in these proceedings, and I accept that the form of agreement acquired by the Applicant from owners of adjoining land is of a kind consistent with the relevant Stormwater Drainage Guidelines where inter allotment drainage is sought.
Built form
In the joint report, Mr Cavallo cites Section 3.2, Objective C5 of the NSW Department of Planning, Industry and Environment, Child Care Planning Guidelines, September 2021 (Child Care Planning Guidelines that states child care facilities should:
"• contribute to the local area by being designed in such a way to respond to the character of the locality and existing streetscape
• build on the valued characteristics of the neighbourhood and draw from the physical surrounds, history and culture of place
• reflect the predominant form of surrounding land uses, particularly in low density residential areas
• recognise and respond to predominant streetscape qualities, such as building form, scale, materials and colours
• include design and architectural treatments that respond to and integrate with the existing streetscape and local character
• use landscaping to positively contribute to the streetscape and neighbouring and neighbourhood amenity
• integrate car parking into the building and site landscaping design in residential areas
• in R2 Low Density Residential zones, limit outdoor play space to the ground level to reduce impacts on amenity from acoustic fences/barriers onto adjoining residence, except when good design solutions can be achieved."
While Mr Cavallo acknowledges that the proposal adopts a number of features and elements that are residential in appearance, the predominant form of existing development in the area, in his opinion, is single storey dwellings clad in weatherboard or fibre cement sheeting.
Rather than adopt this character, the proposal presents entry to a basement carpark with retaining walls, a pedestrian ramp leading to a glazed entry, high masonry walls without appropriate relief, and an emergency exit. All of these elements are self-evidently non-residential and not reflective of the predominant built form in the area.
By comparison, Mr Cavallo considers recent dual occupancy development at No 26-26A Marsden Road an example of development that minimises its bulk through a mix of materials and appropriate side setbacks at the upper level.
To the rear of the proposed development, an outdoor play area located on the first floor is likewise contrary to the Child Care Planning Guidelines advice to limit outdoor play space to the ground level in R2 zones such as is the case here.
Such an arrangement, while screened, is out of character with the low density residential environment.
Mr Wood accepts that positioning the outdoor play area on the upper level has resulted in a portion of the first floor breaching the building envelope controls contained in the PDCP. However, this is because the outdoor play area is bounded to the south and north by built form that partly encloses and conceals the outdoor play area. The outdoor play area is concealed from the west by glazed screens with an obscuring interlayer or the like to avoid overlooking. Taken together, these moves comprise the 'good design solution' sought by the Child Care Planning Guideline in an R2 zone.
Sustainability
The Respondent contends the proposal fails to demonstrate how it will operate in a sustainable manner that combines positive environmental, social and economic outcomes, particularly in relation to natural ventilation, natural light and heating and energy efficiency.
I note here that the planning experts agree a number of the particulars are either relevant to earlier versions of the proposal and are no longer relevant, or are resolved.
The issue on which the experts engage is whether details on energy consumption, plant and equipment and landscape are sufficiently addressed so that less energy is consumed, less waste is generated and fewer operational costs result.
Mr Wood notes the ESD Report, prepared by Senica dated 1 March 2024 contains information on material selections, but acknowledges details of a sort required by the control at (B)(1) of Section C14.3 of the PDCP, Cool Colours and Materials may be lacking.
The relevant control provides:
"A materials and finishes schedule is to be provided, and must include:
a) product specifications where certain materials are relied upon to address the criteria of BASIX, Section J of the NCC or this DCP.
b) Product specifications should include energy efficiency properties, such as:
i) thermal mass,
ii) effect on air flow,
iii) appropriate colour and reflectivity, and
iv) material permeability in landscape design."
The Applicant submits that a materials and finishes board accompanies the architectural plans.
The Respondent submits the ESD Report is deficient as it is silent on the product specification of external walls, roofs and the like.
The text in the main body of the ESD Report appears somewhat unhelpful in terms expected by Part C14.3 of the PDCP. It includes numerous statements that are promissory and not demonstrative.
For instance, where particular (f) would appear clear in its terms, seeking product specifications for energy efficiency properties, including thermal mass, the ESD Report states:
"Proposed building walls have been selected for the external walls of the development because of their thermal mass and to aid in passive heating and cooling of the building.
These external walls will have insulation to the internal side to limit heat loss in winter and minimise excessive heat gain in summer.
As such, it is considered that they are consistent with current requirements and are anticipated to ensure the thermal comfort of their occupants year round.
The current building design identify that the roof will be light in colour. This will assist in ensuring that excessive heat is not gained in summer for the identified units, as the light colour will encourage less absorption and more reflectance."
Findings
Part D5.2(6) of the PDCP provides guidance in respect of noise for child care centre development.
"6) Noise
a) Outside playing areas shall be designed and located to minimise noise impact on any noise sensitive adjacent properties. Separation between boundary fencing and areas occupied by the children may be required.
b) Where there may be noise impact on adjacent properties, fencing shall be of a height, design and material (e.g. masonry) suitable to contain noise generated by the children's activities. This ensures the children may play outside without time limitations in accordance with licensing requirements.
c) Where a site may be affected by traffic, rail or aircraft noise, the child care centre shall be designed to minimise any impact on the children and staff. A report from an acoustic consultant may be required to support the proposal. (Design elements may include double glazing, insulated walls, locating sleeping rooms in protected areas and solid fencing).
d) A noise impact assessment may be required for the development of a child care centre proposing to cater for 40 children or more, or where surrounding land uses may have an impact on the proposal.
The objectives should be to limit the impact of the child care centre on adjacent properties, and also to limit the impact noise from external sources may have on the child care centre. While noise can be measured, the intent is to also minimise nuisance which is subjective by nature. This may be achieved either by physical separation, design and layout of the centre or by implementing noise mitigation measures, such as acoustic treatments to buildings.
e) A noise impact assessment report should address the relevant provisions of the Noise and Vibration section of this Plan."
The Acoustic Assessment assesses the acoustic impact of the proposed development by measuring noise levels on the site, and by identifying residential receptors on adjoining properties. Additionally, it calculates the cumulative noise levels generated by indoor play, car and traffic noise and mechanical plant, and outdoor play areas. Finally, the Acoustic Assessment proposes a noise management plan setting out recommendations for sound barrier walls, mechanical plant and the like.
I accept that the AAAC guideline is a reasonable basis for assessment. The Court is familiar with the AAAC Guideline, having accepted it as an appropriate guideline in Raland Constructions Pty Ltd v Hunters Hill Council [2021] NSWLEC 1535. Likewise, the Court accepted the efficacy of the same AAAC Guideline in Force Way Group Pty Limited v City of Parramatta Council [2021] NSWLEC 1024.
The AAAC Guidelines has been developed by professional acoustic practitioners, within the forum of a recognised professional organisation, and is particular to child care facilities such as the proposed development.
The amended notice of motion dated 26 April 2024 was granted and, pursuant to Rule 2.1 and Rule 29.5 of the Uniform Civil Procedure Rules 2005 (NSW), and sections 56-58 of the Civil Procedure Act 2005 (NSW), I granted the Applicant leave to re-open the proceedings to adduce further evidence in the forms of Tabs 1-3 of Exhibit EJF-1 of the Affidavit of Emma Jane Fleming affirmed 11 April 2024 and Tabs 1-3 of Exhibit EJF-2 of the Affidavit of Emma Jane Fleming affirmed 26 April 2024.
I consider the evidence of assessment undertaken by the Applicant summarised at [29]-[35] in respect of the proposed stormwater drainage to be sufficient for the Court to understand the extent of investigations and likely works required beyond the boundary of the subject site to effect drainage of the site, by gravity, to Carpenter Street. As such, the Court has not deferred consideration of a relevant matter, but rather, has considered the alignment, depth, potential impacts, and points of connection to existing stormwater drainage pipes and pits in the immediate vicinity of the site.
While the Respondent relies on aspects of the Court's decision in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41, the factual circumstances differ, in my view, firstly, because of the extent of assessment undertaken by the Applicant as to the potential off site impacts of the stormwater drainage alignment and construction method likely to be adopted; and secondly, because the Applicant in this case has lodged an application for easement which was not the case in Palm Lake (at [50]).
The breach described above is an encroachment into the side setback building envelope control depicted in Figure D2.1 of the PDCP, under Part D2.1.2 Setbacks and Building Envelope. The applicable envelope in an R2 zone is delineated by a 45 degree plane originating 1.8m above natural ground surface of the site, measured vertically at the boundary.
The Respondent also cites Part D2.6 of the PDCP which deals with non-residential development in residential areas, and which adopts, at control (B)(1) the principles of urban form and urban design that apply to permissible residential development, for non-residential development. Control (B)(2)(c) counsels that particular attention should be given to side setbacks to provide for effective landscaped separation from adjacent developments.
However, the Applicant cites the decision in Carpenter Street Centre Pty Ltd atf The Carpenter Street Centre Trust v Penrith City Council [2024] NSWLEC 1005 (Carpenter Street) at [55], in which the provisions at Section D2.6 of the PDCP were found not to impose setback requirements applicable to dwelling houses on non-residential development. Instead, the requirement referred to at Section 2.6(B) is to "principles of urban form and urban design" that are found in the controls and objectives in Part D.2 of the PDCP where design measures, not numerical controls, seek development that complements existing character.
Here, as in Carpenter Street, there is no numerical control for side setbacks in Part D5.2 of the PDCP, which deals with child care centres.
However, the ESD Report contains Appendices that appear more directed to the task required by Part C14.3 of the PDCP.
Appendix B of the ESD Report, which appears to have been prepared using software known as Speckel, states at p1:
"Speckle provides various calculations in line with the National Construction Code 2022 - Volume 1 - Section J Energy Efficiency. These calculations are in line with all applicable NCC equations or NCC referenced primary or secondary documents, for them to represent an accurate performance solution against the performance requirements - J1P1 Energy Use. A Performance Solution must be shown to comply with the relevant Performance Requirements through one or a combination of Assessment Methods. Speckel is a valid Assessment Method by comparison with Deemed-to-Satisfy provisions of each relevant area."
The method adopted in the assessment set out in Appendix B is summarised as follows:
1. The proposed building has been modelled with the proposed building fabric, and compared against a reference design.
2. Greenhouse gas (GHG) emission factors adopted in the assessment are from Volume 1, Specification 34 Modelling Parameters for J1V3 Table S34C3 GHG Emission Factors (kgCO2-e/GJ).
The results summarised in Appendix B are as follows:
1. A simulation of the proposal produces building emissions of 112.84 kg/CO2-e/m2, which is less than the emissions in the reference design of 151.18 kg/CO2-e/m2)
2. The R-values of all walls modelled include the effects of thermal bridging.
3. External brick veneer is given an R value of 2.09 (m2k°/W)
4. Roofs are given an R value of 3.20 (m2k°/W)
5. Windows are given a U-value of 3.50, and a solar heat gain co-efficient (SHGC) of 0.35.
6. PV cells are given an area, ascribed efficiency factors and a system size or capacity in kWh.
In summary, and absent evidence to the contrary, it would appear the energy efficiency properties of the proposed development have been modelled, and have been compared to a reference building that has concludes the proposal has a thermal performance greater than a reference design.
A Solar Access Assessment at Appendix C likewise sets out the parameters of its study.
A Deemed-to-Satisfy assessment of the National Construction Code (NCC) requirements at Part J is at Appendix E. On p3 of the Appendix, the method is described as a whole façade performance, comprising walls and glazing, with each elevation mapped according to orientation.
No overshadowing or shading is assumed in the modelling, unlike the circumstances likely to result from landscaping planting over time on this site.
In all of the appendices, properties of the brick veneer construction shown on the architectural plans to the first floor are included, including values for conductivity, air cavity, membrane performance and the aggregate composition of the wall assembly.
Roofing design is also identified in the controls at Part C14.3. Control (2) is in the following terms:
"Dark coloured roofs which retain heat will not be supported. All buildings and ancillary development are to minimise their contribution to the urban heat island effect by meeting the following requirements for cool roofs:
a) Achieve the nominated Solar Reflectance Index (SRI) minimums:
i) for roof pitches less than 15, a SRI minimum of 64, with a minimum 3 year manufacturer guarantee.
ii) for roof pitches greater than 15, a SRI minimum of 34, with a minimum 3-year manufacturer guarantee.
iii) for rooftop terraces a SRI minimum of 28, with a minimum 3-year manufacturer guarantee.
b) At least 75% of the roof area is to meet nominated SRI values and/or be designed as a green roof. Areas where solar panels (PV) are mounted flat on a roof are excluded, all other roof areas with PV count toward the Cool Roof area calculation."
The Respondent submits that while some of the proposed roofing may be of a solar reflectance that conforms with the control, not all of the roof is Colorbond. Instead, the roof plan identifies area of concrete roof, on which PV cells are located. No calculation is provided as to the SRI values of the roof, nor the proportion of roof excluded by the PV cells in accordance with Control (2)(b).
The SRI of the roof is stated to be a minimum of 34, with a 3 year guarantee from the manufacturer. (Exhibit C, p20). While the colour of the concrete roof is not separately described, I accept that concrete when poured, cured and waterproofed is unlikely to be characterised as a dark coloured roof.
It is also relevant to record that, following a question from the Court as to an apparent error or omission on the architectural plans and section drawing, further amended architectural plans and further amended landscape plans were tendered, unopposed.
The further amended architectural plans (Exhibit W) show an area of the roof to the east of the lift, fronting Marsden Road, to have deep planting of around 600mm in depth, and a width in plan of 2.1m.
While not an insubstantial area of rooftop landscape, the Respondent considers the planter to fall short of answering the definition of 'green roof' at Part C14.1 (D) which is:
"Green roof: A green roof is vegetation covering at least 30% of available rooftop space ‐that is, space which is not occupied by structures housing plant, equipment, or stairway accesses. A green roof should provide measurable environmental benefits. The green roof includes a vegetated layer, growing medium, and a waterproof membrane. Plants grown in sectioned lots are acceptable, however, potted plants/planter boxes which cover less than 30% of available rooftop space are not considered as a green roof. Additional to the minimum 30% vegetation cover, a green roof can include facilities for renewable energy, water collection infrastructure, walkways, furnishings, and the like."
Whether the area of deep landscape planting on the roof is a green roof or not, I consider such an area of planting within the roof plane to be a positive impact on urban heat, and serve to limit negative impacts of heat absorption through such a substantial, and deep, area of landscape planting, consistent with the objectives of Part C14.3 (A) of the PDCP.
Clause 7.4 of the PLEP requires the Court to have regard to the principles of sustainable development by considering each of the following, that are relevant to the development:
(a) conserving energy and reducing carbon dioxide emissions,
(b) embodied energy in materials and building processes,
(c) building design and orientation,
(d) passive solar design and day lighting,
(e) natural ventilation,
(f) energy efficiency and conservation,
(g) water conservation and water reuse,
(h) waste minimisation and recycling,
(i) reduction of vehicle dependence,
(j) potential for adaptive reuse.
As stated above, I am satisfied that the ESD Report adequately addresses the energy conservation and energy efficiency measures required to be considered by cl 7.4 of the PLEP. In terms of building design and passive solar and daylighting, I consider the orientation of the building, with eaves and awnings to windows exposed to northern sunlight, suited to capturing northern daylight in the 3-5 year old indoor play areas at appropriate times of the year, and excluding the same at times when the sun is higher in the sky.
As it is agreed that landscape planting provides shading to the western elevation (at [73]) and I find the landscape planting selected to provide shading at appropriate times of the year to the northern elevation (at [144]-[145]), I also consider the contribution made by the landscape design in the western and northern setbacks to be a positive aspect of passive solar design.
As for natural ventilation, I accept there are limits the extent to which the development can be naturally ventilated given the perceptions of noise in residential areas that are addressed in more detail below, and as addressed by the Court in Basevski v City of Ryde Council [2022] NSWLEC 1387, at [74]-[80]. Notwithstanding those limitations, the planning experts agree that natural ventilating is provided by doors to play rooms that are permitted to remain open other than when amplified music or singing occurs.
I consider the proposal for water reuse and conservation in the form of onsite rainwater tanks for reuse in irrigation, and water efficiency appliances to be acceptable features of the development.
I also consider the Waste Management Plan prepared by Dickens Solutions dated March 2022 (Exhibit E, Tab 18) to satisfactorily address waste minimisation and recycling.
While it is not a statutory document, it is unreasonable, in my view, for Mr Cooper to describe an industry standard, developed by a professional membership organization such as the AAAC as 'unsubstantiated', or for any burden to substantiate an industry standard to fall to Mr Gauld.