Ekon Pty Limited v Georges River Council

The site and its context

1. The site is located on the eastern side of The Esplanade, the second dwelling after the corner dwelling south of the intersection of The Esplanade with Connells Point Road. Connells Point Road leads to the east to King Georges Road two blocks away.
2. The site is rectangular with its front and rear boundaries 20.115m and side boundaries of 50.29m, giving an area of 1011.58 sqm. The site rises in the order of 2.3m from front to rear and rises about 900mm from north to south.
3. On the site at present is a two storey brick dwelling probably built in the 1960s and a synthetic surface tennis court at the rear of the dwelling.
4. Adjoining the site to the north is a large two storey single dwelling 15-20 years old known as 2 The Esplanade. It is well set back from the street and has a large paved front driveway area. On its southern boundary (adjacent to the northern boundary of the site) there is a tall hedge of Murraya plants growing in a planter bed. The hedge runs for most of the southern boundary of 2 The Esplanade.
5. To the south of the site is 6 The Esplanade which is a single storey villa development built in the late 1990s with three villas in an east west line, each with backyards at their north to the common boundary with the site (the south of the site).
6. More broadly The Esplanade is a residential street with an eclectic range of dwellings and dual occupancies, some more modest older dwellings and some more recent and larger, two storey dwellings. It is no criticism to suggest that there is not a consistent style of building form in The Esplanade.
7. The Esplanade is itself of residential proportion having a width from kerb to kerb of about 8m. Generally, two cars could not simultaneously pass between two cars parked opposite each other. It has a wide verge with Tallowwood street trees a feature. One such mature Tallowwood tree is on the road verge outside the site.
8. To the north of The Esplanade, Connells Point Road is a busy road which has a similarly eclectic form of principally residential development.

The proposal

1. In its final form the Applicant proposes a child care centre accommodating 56 children in the following age groups: 0-2 years 8 children 2-3 years 18 children 3-5 years 30 children
2. The ground floor comprises:

• A foyer, office and indoor store;
• A room for the 0-2 year old children;
• A room for the 2-3 year old children;
• Two nappy change areas;
• Cot room;
• Children's toilets.

1. The first floor is accessed by steps and a lift and comprises:

• Lobby, kitchen and indoor stores;
• Staff room and staff bathroom;
• Laundry;
• Room for 3-5 year old children;
• Nappy change room.

1. It should also be observed that the first floor extends to the rear further than the ground floor by about 5.3m so that the play area immediately to the rear of the indoor area on the ground floor is a covered outside play area.
2. A basement car park is provided which provides:

• 6 spaces for staff;
• 7 spaces for parent/carer parking/drop off;
• 1 space for a person with a disability.

1. The outdoor play space is provided along the northern boundary and to the rear.
2. The acoustic measures required include a 2.4m high fence of about 30m in length on the north side of the building set back 1.7m from the northern boundary apart from the most easterly 5m or so which is a little closer. Above the acoustic fence is a canopy which rises from the north to the south from a height of about 2.4m to 3.6m. The canopy is about 3m in length from north to south and runs above the acoustic fence for about 22m (in the west to east direction).
3. On the southern boundary there is to be a 2.2m high lapped and capped timber fence.

The course of the proceedings

1. The proceedings commenced with a site inspection on 24 May 2021 in the presence of the parties representatives and a number of experts. Evidence was taken from local objectors including Mrs Kostantakis an owner and resident of 2 The Esplanade, the neighbour to the north. The Court also went inside 2 The Esplanade to understand its layout and relationship to the proposed development. The Court also observed the site from the upstairs rooms of 2 The Esplanade. The site inspection included walking around the neighbourhood in the general vicinity of the site.
2. The hearing continued in Court including the exposition by Council of the issues in the proceedings. Oral evidence was given by Mr Cooper.
3. On the second day of hearing after evidence was given by Mr McLaren and Ms Kong the Applicant indicated to the Court that it wished to explore the possibility of an alternate basement design to overcome the Council's contention and also potential driveway changes. The matter was adjourned for short periods on two occasions, with the consent of the Council, to allow that exploration and for the Applicant to communicate with the Council.
4. At about 2pm the Applicant made an application to adjourn the hearing to allow it to prepare amended plans with a view to resolving a number of issues. The Council consented to the application provided the Applicant gave the Council an undertaking to pay the Council's costs of 25 May. The Applicant gave that undertaking to the Council.
5. I determined to grant the adjournment having regard to the Council's consent, the fact that there was no prejudice occasioned to the Council, there had not been a conciliation pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act) and on the proviso that the hearing could be resumed in the near future.
6. In the event the hearing could be resumed on 18 June 2021 and I adjourned the hearing to that date. The Applicant further amended its application with new plans with the consent of the Council. Because the issues had by then been reduced the hearing was able to be completed in that single day.

The issues

1. A number of issues were resolved by the provision of the amended plans. The central matter resolved was the design of the basement and the re-design resulted in the capacity of the child care centre being reduced. With fewer children there was a reduction in the areas of indoor and outdoor space required and so the issues relating to those matters were also resolved.
2. At its broadest the issue is encapsulated in this way - the Council asserts that the proposal is too big for its site and its context resulting in a building form and design, combined with inadequate landscaping, which overall leads to an unsatisfactory development.
3. The principal issues remaining, with more particularity, were: 1. The siting and form of the proposed Centre (including the northern acoustic wall and canopy) results in a visual bulk that is not consistent with the form of development expected in the R3 zone adjoining the R2 zone (Contention 2); 2. The lack of landscaping and tree planning on the site is not appropriate and results in an adverse streetscape outcome and the landscaped areas on the site around the building are not adequate (Contention 3); 3. The proposal has an unacceptable adverse impact on 2 The Esplanade by virtue of the acoustic wall and canopy on the northern side of the building (Contention 4); 4. There is an unacceptable adverse impact on the trees on the site and one on the road reserve as well as the Murraya hedging on 2 The Esplanade (Contention 8); 5. The proposal is not in the public interest having regard to the matters raised by submissions from objectors which reflect the contentions raised by the Council.
4. The contentions were supported by references to the relevant planning regime to which reference is made below.

Statutory and Planning Context

1. I will set out broadly the planning context in the following paragraphs. The more specific relevant provisions I will set out when dealing with the issues in the case.
2. The site is zoned R3 - Medium Density Residential pursuant to Kogarah Local Environmental Plan 2012 (KLEP 2012). A centre based child care centre is permissible with development consent in the zone.
3. The question of character of the development is raised by the Council and therefore it is appropriate to consider the zoning and other controls of the land in the vicinity of the site. The land on the other side of The Esplanade is zoned R2 Low Density Residential. Centre based child care centres are also permissible in the R2 zone.
4. The objectives of the zone are a mandatory relevant consideration pursuant to cl 2.3(2) KLEP 2012. The objectives of the R3 zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
5. The objectives of the R3 and R2 zones vary to the extent that whereas the R3 zone objectives seek to achieve a medium density residential environment, the R2 zone objectives seek to achieve a low density residential environment.
6. KLEP 2012 cl 4.3 and the Height of Buildings Map provide that the height control for the site is 12m and the maximum height for the R2 land on the other side of The Esplanade is 9m.
7. KLEP 2012 cl 4.4 and the Floor Space Ratio Map provide that the maximum floor space ratio for the site is 1:1 and the maximum floor space ratio for the R2 land on the other side of The Esplanade is 0.55:1.
8. A planning proposal for a new local environmental plan to replace KLEP 2012, Hurstville Local Environmental Plan 1994 and Hurstville Local Environmental Plan 2012 and create Georges River Local Environmental Plan 2020 (GRLEP 2020) has gone through each of the statutory steps and is before the Department of Planning Industry and Environment for gazettal. It is not known when that gazettal is likely to occur although it had been expected to be gazetted prior to the hearing.
9. GRLEP 2020 has a savings provision such that even if gazetted, KLEP 2012 will still apply to the DA. However, GRLEP 2020 remains a matter for consideration pursuant to s 4.15(1)(a)(ii) of the EP&A Act.
10. Under GRLEP 2020 land presently zoned R3 with a height control of 12m (which includes the site) will be zoned R4 but the height control and the floor space ratio control will remain the same for the site.
11. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Childcare SEPP) applies to the DA. The SEPP provides in cl 23: 23 Centre-based child care facility - matters for consideration by consent authorities Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development.
12. The Child Care Planning Guideline (the Guideline) contains key elements of the national scheme of planning and design guidance for child care facilities.
13. Sub-clause 25(2) of the Childcare SEPP provides for certain non-discretionary development standards for such matters as centre location, indoor and outdoor space, site area and dimensions and colour of building materials and shade structures. More onerous standards cannot be required by other instruments than those prescribed by the Childcare SEPP.
14. Clause 26 of the Childcare SEPP provides that development control plans do not apply to certain aspects of a proposed development for a child care facility: 26 Centre-based child care facility - development control plans (1) A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility - (a) operational or management plans or arrangements (including hours of operation), (b) demonstrated need or demand for child care services, (c) proximity of facility to other early education and care facilities, (d) any matter relating to development for the purpose of a centre-based child care facility contained in - (i) the design principles set out in Part 2 of the Child Care Planning Guideline, or (ii) the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates). (2) This clause applies regardless of when the development control plan was made.
15. The Guideline mandates consideration of Design Quality Principles (Part 2), certain Matters for Consideration (Part 3) and provides guidance for applying the Education and Care Services National Regulations (National Regulations) (Part 4).
16. Kogarah Development Control Plan 2013 (KDCP 2013) applies to the development application. There are general provisions on such matters as Tree Management, Parking and Traffic and Waste Management, and specifically Part D4 which deals with Child Care Centres. The provisions of KDCP 2013 are of course subject to the provisions of subcl 26 of the Childcare SEPP.

Evidence from objectors

1. The Council received in the order of 40 submissions and one petition from local residents in opposition to the DA, after it was notified in accordance with the Council's notification policy.
2. A number of local residents gave evidence at the hearing. The concerns of residents in the written and oral evidence, were, in summary:

• Traffic increased in a narrow road threatening the safety of children and parents;
• The building and proposed use are out of character and context for the street;
• Inconsistent with the streetscape;
• Loss of amenity for existing residents, including acoustic impacts;
• Inappropriate use in a quiet residential area;
• Loss of trees including a significant street tree;
• Out of character with the streetscape;
• No community need for an additional child care centre;
• In relation to 2 The Esplanade, the increased risk of crossing the neighbouring driveway, potential loss of Murraya hedge, increased noise, general loss of amenity, loss of privacy, risks from excavation.

Acoustic

1. The parties retained a single expert for the purpose of assisting in matters acoustic. Mr S Cooper provided a primary report and two supplementary reports which dealt with amended plans as those amendments were made. He gave short oral evidence to explain what he meant by passive play in his report which related to the allocation of the noise sources in his acoustic assessment. Mr Cooper is a qualified and highly experienced acoustic engineer who is well-known to the Court. The parties accepted his evidence and I have no hesitation is also so doing.
2. Mr Cooper analysed the acoustic information provided by the Applicant, the final plans, the plan of management and carried out his own calculations and modelling. Mr Cooper concluded that:

• The noise emission from the outdoor play area should not exceed 45 dB(A) Leq (15 minutes) being the application of the accepted standard in the profession as recommended in the Association of Australasian Acoustical Consultants Guideline (version 3, September 2020);
• With the management of the outdoor play areas, both as to numbers and nature of the use (active or passive) the acoustic fence and canopy on the northern side of the Centre, the acoustic goal of 45 dBA will be achieved;
• With the management of the outdoor play areas, both as to numbers and nature of the use (active or passive) the acoustic fence on the southern side of the Centre, the acoustic goal of 45 dBA will be achieved;
• The upstairs indoor area must have its windows closed when in use by children in order to achieve the acoustic goal;
• No particular treatment or modification of activity is required when using the indoor ground floor because the acoustic shielding by the fences and canopy will ensure the acoustic goal is met;
• Noise emission from traffic generated by the Centre does not exceed the acoustic goal of 55 dB(A) Leq (1 hour) set by the NSW Road Noise Policy, nor does it exceed the sleep arousal criterion for noise prior to 7am.

1. I accept those conclusions. The recommendations by Mr Cooper are reflected in the Applicant's proposed plan of management and the Council's without prejudice proposed conditions of development consent.
2. Of course, it must be said that compliance with the criteria does not mean that noise from the Centre would not be heard, nor that to some people that noise may be annoying. But the acoustic criteria adopted are designed to achieve a balance between the noise generated by a child care centre when permissible in a zone and the amenity of nearby residential neighbours.
3. The Council did not press the acoustic impacts of the development as a reason for refusal. Whilst it is understandable that neighbours to the site are concerned about the likely noise from the proposed Centre, the expert evidence, which I accept, concludes that the noise emission will be reasonable and not a reason for refusal.

Traffic and parking

1. Ultimately the Council did not submit that the parking arrangements for the Centre were unsatisfactory nor that the movement of vehicles was unsafe or have an adverse impact on the local traffic network.
2. Ms Meg Kong Siew Hwee (Ms Kong) was retained by the Applicant and Mr C McLaren retained by the Council to assist the Court in traffic engineering matters. Ms Kong and Mr McLaren provided a primary joint report (13 May 2021) and two supplementary joint reports (25 May and 11 June 2021), the supplementary reports dealing with proposed amendments as they occurred. The traffic experts gave some short oral evidence on the second day of hearing before the adjournment to enable amendment of the plans and were not required to give evidence thereafter.
3. In the supplementary report of 11 June 2021 the experts conclude that:

• The revised car parking layout provides the appropriate number of car parking spaces - 8 spaces for parents and 6 spaces for staff;
• The layout which separates to the south the parent parking and to the north the staff parking is appropriate;
• Dimensions of aisle width and parking spaces comply with Australian Standard AS 2890.1:2004 as required;
• The use of a private waste contractor is satisfactory which will collect all generated waste from the basement only and not from the street.

1. I accept the evidence of the experts.
2. The Council has not submitted, nor is there any expert evidence to support the proposition, that there are unreasonable safety or other traffic issues in The Esplanade as a consequence of the traffic generated by the development. Accordingly, I cannot conclude, and do not conclude, that there are traffic and safety impacts which compel the refusal of the DA. The traffic flow would undoubtedly be different if the Centre was approved, but not to such a degree, nor having such impacts, as to warrant the refusal of the DA.

Child care centre operation

1. Expert evidence was given by Ms Lynda Campbell retained by the Applicant and Ms Heather Warton retained by the Council. Ms Campbell is an Early Education Expert with significant experience in training, management and accreditation of child care centres. Ms Warton is a qualified and highly experienced town planner whose work experiences as a planner has regularly included assessment of development applications for child care centres.
2. The child care experts prepared a primary joint report (10 May 2021) and a supplementary joint report (5 June 2021). They were not required to give oral evidence.
3. The primary report dealt with the Council's then contentions relating principally to the internal layout of the Centre, the adequacy of outdoor play space, the quantum of available indoor and outdoor spaces and the adequacy of the draft plan of management.
4. After the amendment of the plans, including a reduction in the number of children, and the provision of an amended draft plan of management, in their supplementary joint report Ms Campbell and Ms Warton effectively acknowledged that all but one of the issues had been resolved. The remaining issue was that the proposal was not compliant with clause 4.4 of Part 4 of the Guideline in that there was inadequate cross-ventilation in the cot room and the upper floor when the upper floor is in use (because the windows need to be closed when in use).
5. Part 4 of the Guideline is headed "Applying the National Regulations to development proposals".
6. Clause 110 of the National Regulations provides: 110 Ventilation and natural light The approved provider of an education and care service must ensure that the indoor spaces used by children at the education and care service premises - (a) are well ventilated; and (b) have adequate natural light; and (c) are maintained at a temperature that ensures the safety and wellbeing of children. Penalty: $2000.
7. Clause 4.4 of the Guideline after referring to cl 110 of the National Regulations provides "Design Guidance" in the following terms: "Ventilation Good ventilation can be achieved through a mixture of natural cross ventilation and air conditioning. Encouraging natural ventilation is the basis of sustainable design; however, there will be circumstances where mechanical ventilation will be essential to creating ambient temperatures within a facility. To achieve adequate natural ventilation, the design of the child care facilities must address the orientation of the building, the configuration of rooms and the external building envelope, with natural air flow generally reducing the deeper a building becomes. It is recommended that child care facilities ensure natural ventilation is available to each indoor activity room."
8. Ms Warton's evidence on this subject is limited to the cot room. She says that there is no cross-ventilation in the cot room and there ought to be. Ms Campbell says simply that there is no need to cross-ventilate the cot room and that mechanical ventilation and/or air conditioning will be required and will be adequate.
9. In submissions, although there was no specific evidence, the Council pointed to the lack of natural cross-ventilation to the rooms on the upper floor. It was submitted that there will always be children on that level and therefore the windows will always be closed and there will be reliance at all times on mechanical ventilation and/or air conditioning.
10. The Applicant submitted that the provision of air conditioning complies with the Building Code of Australia, and that there will be opportunities for the building's upper floor to cool naturally when children are not present.
11. Clause 110 of the National Regulations does not in its terms require that the indoor spaces used by children are naturally cross-ventilated. It simply provides that they are well ventilated, and relevantly, maintained at a temperature that ensures the safety and well-being of children. The Guideline in this regard is precisely that - a guideline. It offers assistance as to how compliance with cl 110 can be achieved including an encouragement of natural ventilation. The Guideline acknowledges that there are circumstances where mechanical ventilation will be essential to create an ambient temperature.
12. It is recommended in the Guideline that child care facilities ensure natural ventilation is available to each indoor activity room.
13. I am satisfied that the indoor spaces will be well ventilated whether by natural or mechanical means. There will be compliance with cl 110 of the National Regulations. The Guideline is undoubtedly correct when recommending natural ventilation be provided where possible but that is not an absolute requirement of a child care centre. Whilst this design is not optimal in that regard, in my view the failure to provide natural cross-ventilation at all times is not of itself a reason for refusal.
14. There will be some opportunity for cross-ventilation of the upper floor when children are not present, even if that is only early morning or later in the day when the older children have left or are outside. The cot room is a small room which need not be naturally cross-ventilated although once again the opportunity for natural ventilation exists with openable sliding doors which operate as walls on two sides.
15. The ventilation issue does not warrant refusal of the DA.

Trees and landscaping

1. The issue concerning loss of trees concerns the following trees (using the numbering used in the proceedings):

• Tree 1 - a Norfolk Island Pine in the south eastern corner of the site;
• Trees 5 and 6 - a Cheese Tree (T5) and Melaleuca (T6) near to each other adjacent to the southern boundary near to the rear yard of villa 2 on the adjoining property;
• Tree 8 - an Eucalyptus microcorys (Tallowwood) in the road reserve adjacent to the proposed driveway;
• Murraya hedge on 2 The Esplanade adjacent to the northern boundary of the site.

1. Expert evidence was given by Ms Stratton retained by the Applicant and Mr C Kenworthy retained by the Council. They prepared a primary joint report (11 May 2021) and a supplementary report (11 June 2021). They also gave oral evidence.
2. Tree 1 is a Norfolk Island Pine of about 12m in height with a canopy width up to 4m. It is a significant feature of the site and has a life expectancy of more than 40 years. In KDCP 2013 at Part B2 the retention of significant trees is encouraged. The Applicant proposes to retain the Norfolk Island Pine, but the Council says the risk to the tree from the development is not fully known and therefore the DA should be refused.
3. In relation to Tree 1 it was initially proposed that there be some excavation and a retaining wall in the vicinity of the tree, and access for children beneath the tree, which were both said by the Council to have the potential to adversely impact on the survival of the tree. In the amended plans there is no access to the critical root zone of the tree for children playing or otherwise, and there is no longer a retaining wall. The construction of the basement has the potential to impact upon the tree.
4. Mr Kenworthy said that given the existing constraint of the tree roots, root mapping should have been done and in the absence of that information the proposal should not be approved.
5. Ms Stratton said that the incursion into the Tree Protection Zone (TPZ) is by the basement only and is less than 10% of the area of the TPZ (admittedly 9.9%). According to Australian Standard AS4970-2009 (AS4970), she says, there is no need for root mapping and there is no real risk to the tree. Further, she said that given that the tree was a considerable distance from the front of the site, any root mapping would have to be done by hand with shovels and mattocks which will necessarily involve some root damage. Root mapping is done by exposing roots with the use of water spray to remove soil without damaging roots.
6. Mr Kenworthy in his oral evidence indicated that he had the equipment which included a hose of sufficient length to use for root mapping of the tree and therefore it should have been done.
7. The Council submitted that AS4970 should not be slavishly applied and that if the development proceeds if a significant root is encountered it will simply be cut and in the absence of root mapping it is simply not known what the potential impact on the tree will be.
8. The Applicant submitted that the Court should accept that the application of AS4970 means that there is no significant risk to the tree, and it will not be at risk from the development.
9. AS4970 is for "Protection of trees on development sites". Clause 3.1 of AS4970 describes the TPZ as "an area isolated from construction disturbance, so that the tree remains viable". The radius of the TPZ is calculated in accordance with the formula in clause 3.2 which is 12 x DBH where DBH is the diameter of the trunk measured at 1.4m above ground level. The radius of the TPZ is measured from the centre of the stem (trunk) at ground level.
10. There is an incursion of 9.9% into the TPZ but the incursion is outside the structural root zone (SRZ). There are some historical limitations to the roots of the tree to the north and possibly a little to the east. Clause 3.3 of AS4970 relevantly provides: "3.3 VARIATIONS TO THE TPZ 3.3.1 General It may be possible to encroach into or make variations to the standard TPZ. Encroachment includes excavation, compacted fill and machine trenching. 3.3.2 Minor encroachment If the proposed encroachment is less than 10% of the area of the TPZ and is outside the SRZ … detailed root investigations should not be required. The area lost to this encroachment should be compensated for elsewhere and contiguous with the TPZ …. 3.3.3 Major encroachment If the proposed encroachment is greater than 10% of the TPZ or inside the SRZ ... the project arborist must demonstrate that the tree would remain viable…."
11. Implicit in clause 3.3 of AS4970 is that generally an incursion into the TPZ of less than 10% will not affect the viability of a tree, but if the incursion is greater then the continued viability of the tree will have to be established. Whilst the incursion here is barely under 10%, nevertheless it is, and AS4970 has chosen to draw the line between minor and major encroachment at 10% of the area of the TPZ. It is not the role of the Court to effectively adopt a different policy and apply the "greater than 10%" standard to an application when the encroachment is less than 10%.
12. Nevertheless, I need to be satisfied that the tree will remain viable. Mr Kenworthy is concerned about the viability of the Norfolk Island Pine but says that the viability should be further explored by root mapping. Ms Stratton says that the Pine will remain viable and there is no need for root mapping having regard to AS4970. She also points to the tree protection measures which are proposed.
13. Whilst it is generally preferable to have additional information, I accept the evidence of Ms Stratton. Mr Kenworthy does not say the tree is not viable, but says he wants more information. Ms Stratton is confident of the viability of the tree and the standard in AS4970 justifies that confidence in my opinion.
14. The encroachment into the TPZ of the Norfolk Island Pine is not a reason for refusal of the DA.
15. Trees 5 and 6 (Cheese tree and Melaleuca) are to be removed as a consequence of the development.
16. The Cheese tree is 7m in height and has a medium life expectancy which is 15-40 years. It has a one-sided canopy and is likely to continue to cause damage to the adjacent southern boundary fence.
17. The Melaleuca is 6m in height and has a short life span which is 1-15 years. It has had major structural branch removal and has multiple trunks.
18. It is common ground that the trees are not of themselves significant trees but play a role in the existing landscape of the site. Ultimately the Council submission was that the trees provide a screening benefit to the dwellings to the south, contribute to the character and landscaped setting of the site and their removal would contribute to an inadequate landscape setting for the development. The Council also pointed to consideration C18 in Part 3.4 of the Guideline which states that in achieving the objective to provide a landscape design that contributes to the streetscape and amenity the existing landscape should be used where feasible.
19. The Applicant submits that the trees present a constraint to the orderly development of the site, that they are not significant with a relatively short life span, and that the proposed landscaping will more than make up for the loss.
20. I agree with the Applicant that the trees do not warrant retention largely for the reasons submitted by the Applicant. The Melaleuca could cease to exist in a very short time frame and the Cheese Tree will not survive for the life of any redevelopment of the site. In my opinion it is preferable that the trees be removed and replaced with the landscaping proposed by the Applicant which includes trees in more appropriate locations which will survive the life of the development.
21. I should add that the location of the trees is such that they contribute little if anything to the streetscape and their contribution to the amenity of the dwellings to the south will be replaced by the new landscaping.
22. Tree 8 is Tallowwood and a prominent street tree of some 18m in height. It is in the road reserve and about 4.7m from the edge of the proposed driveway. Its life expectancy is more than 40 years and it is obvious that the Tallowwood should not be put at risk of failure. There is no encroachment into its SRZ but there is incursion into the TPZ. Root mapping has been carried out and there are no roots of significance which will be affected as a consequence of the construction of the driveway.
23. Mr Kenworthy says however in the Supplementary Joint report: "The issue still remains as to the loss of absorption area that tree 8 has adapted to over its lifetime, compared to what it will be subjected to. I reiterate, SS [Ms Stratton] only concentrates on structural roots and not the important fine feeder roots that trees rely on to survive and as described within AS4970-2009, B3.4 Root damage."
24. In the Supplementary Joint report Ms Stratton responded: "…. the loss of fine feeder roots is well understood. It is the fine feeder roots that grow back very quickly given the right conditions. The installation of the driveway will prevent ongoing damage to roots caused by the vehicles crossing the unmade driveway. Healthy tree roots will take advantage of the protection provided by the concrete driveway and grow into the area beneath the slab."
25. In his oral evidence, in response to a question in cross-examination Mr Kenworthy very fairly agreed that the proposal will not result in the death of the Tallowwood.
26. The Tallowwood presently suffers from compaction of some of its root zone because there is not a formed driveway at present. It is the case that the design of the driveway will mean that that compaction will not continue and there is the opportunity for the feeder roots to grow beneath the slab. Whilst I understand Mr Kenworthy's concern about the possibility of reduced access to moisture, if that occurs it is only in a relatively small area where the slab is nearly 5m from the tree, and there is no evidence that if that area is lost the tree will not obtain sufficient moisture from elsewhere to continue thriving.
27. It would also appear to be the case that any constructed crossing will encroach into the TPZ as the Tallowwood is a little to the north of the centre line of the site. Be that as it may, the proposed construction method of the driveway and the proposed tree protection measures will adequately protect the tree.
28. For these reasons, and the evidence of Ms Stratton, I am satisfied that the proposed driveway will not adversely affect the Tallowwood such that the DA should be refused.
29. The Murraya hedge is a continuous hedge on the southern boundary of 2 The Esplanade. It is in a partly retained bed and about 2m in height. It offers significant privacy to 2 The Esplanade and is a feature of that property.
30. The Applicant proposes to excavate from about 240mm from the boundary using a "gorilla wall" which is less intrusive than a brick wall in construction and presence. Ms Stratton agreed in her oral evidence that the Murraya will lose 30%-40% of its roots for about the first 11m or so of the Murraya hedge and less as the driveway/basement are setback a little further to the east.
31. Ms Stratton says that the species is known to be resilient and recovers well from heavy and repeated trimming of both foliage and roots. She said a drip system of irrigation will be installed to assist with the survival of the Murraya hedge.
32. In cross-examination Ms Stratton agreed that one cannot rely on a general statement as to the resilience of a species without individual investigation to ensure the survival of the particular plantings. She also agreed that root mapping had not been carried out, but said that if it had been carried out then roots would have been encountered where the excavation is to occur and she had assumed there would be roots in that location.
33. Mr Kenworthy says that the Murraya hedge should be treated as a series of trees and that AS4970 applies. In that case, he says, there is a significant encroachment into the TPZ which cannot be justified. He conceded in his oral evidence that he had not done a specific assessment of the particular Murraya hedge and that he had not considered the variation mechanism for encroachment into the TPZ in AS4970. He countered however that in his view there is something in the order of a loss of 40%-50% loss of TPZ and that it could not be justified and that there will be inevitable loss of some of the Murraya hedge.
34. It is not necessary to consider whether or not AS4970 applies to the Murraya hedge (which turns on the definition of tree in AS4970) because in reality it is common ground that:

• The development should be designed so as to ensure that the Murraya hedge be retained;
• The loss of roots is in the order of 30%-50% of the principal root area of the Murrayas (whether or not called TPZ);
• Neither expert has conducted a specific investigation as to the likely survival of this particular series of plants or trees.

1. If the Murraya hedge was on the site then it is likely the issue would be differently addressed. Here, there is a very real risk that some, though perhaps not all, of the Murrayas will not survive such close excavation, having lost such a significant proportion of its vital roots. The hedge is on the adjacent property and if some of the plants do not survive then it is not within the power of the Applicant to remediate the loss, or replace the planting.
2. I am not satisfied that merely identifying the species as resilient is sufficient to conclude that the hedge will remain intact. It should remain intact, not simply because it is the property of the neighbour to the north, but also for its contribution to the landscape setting of 2 The Esplanade and, to a lesser extent, the site.
3. Putting it simply, the excavation is too close to the boundary and there is a very real likelihood that the neighbour's Murraya hedge will not survive the impact.
4. In the absence of agreement from the owners of 2 The Esplanade that the excavation can occur, and that provision is made for replacement planting, that is a sufficient reason to refuse the DA and dismiss the appeal. The closeness of the excavation to the northern boundary is also related to the issue of bulk and scale, and the character of the neighbourhood, the consideration of which follows.

Visual bulk and character

1. In submissions the Council most concisely identified the aspects of the proposal which, combined, led to the conclusion in its case that the visual bulk is unacceptable and the development out of character:

• The basement with its opening of about 6.5m in width;
• The absence of landscaping of significance along the northern boundary;
• The acoustic structure - wall and canopy; and
• The unrelieved extent of the wall and roof of the first floor on the northern side.

1. Expert planning evidence was given by Mr G Boston retained by the Applicant and Ms H Warton retained by the Council. Each is an experienced and respected town planner. They provided a comprehensive primary joint report (18 May 2021) and a supplementary report (4 June 2021) dealing with the latest amended plans. They were not required to give oral evidence.
2. The planners identified the planning context of the assessment as principally derived from the Guideline. The introduction to Part 2 Design Quality Principles says: "The design quality principles establish the broad design context guide of all new proposals for child care facilities, regardless of whether they are stand alone, part of a mixed-use development, modifications or retrofits of existing buildings or seeking to occupy premises without incurring new building works. Good design is integral to creating sustainable and liveable communities. There is growing appreciation of the significant role that good design can play in education with increasing evidence that learning outcomes are closely related to the quality of learning environments. Factors such as air quality, ventilation, natural lighting, thermal comfort and acoustic performance have been shown to have a profound impact on learning, engagement, social interactions and competencies. They also contribute to wellbeing through creating a sense of belonging, self-esteem and confidence."
3. Design Quality Principle 2 - Built Form states relevantly: "Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the surrounding area. Good design achieves an appropriate built form for a site and the building's purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Good design also uses a variety of materials, colours and textures."
4. Design Quality Principle 5 - Landscape includes: "A contextual fit of well-designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood."
5. Part 3 of the Guideline is Matters for Consideration and the introduction states: "The considerations give guidance to applicants on how to design a high-quality proposal that takes account of its surroundings and any potential environmental impacts the development may cause and to be mindful of potential impacts that may arise from existing uses and conditions within a locality. The matters support the design principles and must be considered by the consent authority when assessing a DA for a child care facility. Child care facilities can be developed in a broad range of locations and need to be flexible in how they respond to the requirements and challenges this brings."
6. Section 3.2 of the Guideline deals with "Local character, streetscape and the public domain interface". The planners identified consideration C5 and its objective as relevant: "C5 The proposed development should: • contribute to the local area by being designed in character with the locality and existing streetscape • reflect the predominant form of surrounding land uses, particularly in low density residential areas • recognise 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 • use landscaping to positively contribute to the streetscape and neighbouring amenity • integrate car parking into the building and site landscaping design in residential areas."
7. Section 3.3 is also relevant which deals with "Building Orientation, envelope and design". Consideration C12 and its objective are: "Objective: To ensure that the scale of the child care facility is compatible with adjoining development and the impact on adjoining buildings is minimised. C12 The following matters may be considered to minimise the impacts of the proposal on local character: • building height should be consistent with other buildings in the locality • building height should respond to the scale and character of the street • setbacks should allow for adequate privacy for neighbours and children at the proposed child care facility • setbacks should provide adequate access for building maintenance • setbacks to the street should be consistent with the existing character."
8. Consideration C14 deals with setbacks and the consideration as it relates to side setback is important: "Objective: To ensure that setbacks from the boundary of a child care facility are consistent with the predominant development within the immediate context. C14 On land in a residential zone, side and rear boundary setbacks should observe the prevailing setbacks required for a dwelling house."
9. Finally, of relevance from the Guideline is Consideration C15: "Objective: To ensure that the built form, articulation and scale of development relates to its context and buildings are well designed to contribute to an area's character. C15 The built form of the development should contribute to the character of the local area, including how it: • respects and responds to its physical context such as adjacent built form, neighbourhood character, streetscape quality and heritage • contributes to the identity of the place • retains and reinforces existing built form and vegetation where significant • considers heritage within the local neighbourhood including identified heritage items and conservation areas • responds to its natural environment including local landscape setting and climate • contributes to the identity of place."
10. Consideration was given by the planning experts as to the existing and likely future character of the area in their primary joint report. They agreed that "the existing development within the site's visual catchment is wholly residential, and eclectic in nature ranging from 1 and 2 storey dwelling houses, single storey villas style residential accommodation and 2 storey dual occupancy development".
11. The planners referred to the draft Georges River Development Control Plan 2020 (Draft GRDCP 2020) to best describe the relevant (broader) South Hurstville Locality and its Future Desired Character: "Existing South Hurstville is a suburban residential area with a mixture of dwelling types, from single dwelling houses on standard lots, transitioning to villas and town houses and apartments surrounding the commercial centre of South Hurstville. There is not one defined character for the area, with architectural styles that range from single-storey federation style homes to post-war apartment blocks to large contemporary designs. Future Desired Character Retain and enhance the existing low density suburban residential character through articulated contemporary developments. Encourage well-designed medium and high density residential development towards South Hurstville commercial centre. Encourage tree planting and landscaping within the front setback space to enhance the existing leafy streetscape character."
12. The planners disagreed as to the local area for the purpose of determining whether the proposal was compatible with the character of the local area. Ms Warton restricted the local area to The Esplanade from Connells Point Road heading south and the residential area generally two blocks to the south of the site. Mr Boston agreed that area was included in the local area but in his opinion the residential development on Connells Point road in the near area of its intersection with The Esplanade also fell within the local area. Ms Warton opined that Connells Point Road is a busier and wider road than The Esplanade and formed a notional barrier to the area local to the site.
13. I agree with Ms Warton. There is a very definite different character in Connells Point Road compared to The Esplanade because of its width and busy-ness. Whilst it is generally residential in character, that of itself does not bring it within the local area of the site. A busy road will frequently define the nominal border between areas and does so in this instance.
14. That however, in my view does not make a material difference to the assessment of compatibility with the local character because the form of development in Connells Point Road is not greatly dissimilar to that in The Esplanade, although Mr Boston pointed to a particular development in Connells Point Road which was larger than others.
15. The planners disagreed (in the language of the primary joint report at par 33) as to: "whether the siting and form of the development is consistent with/compatible with the existing form of development and that anticipated in the R3 Medium Density and adjoining R2 Low Density Zone, and whether the proposal has adequately addressed the relevant provisions in Parts 2 and 3 of the Guideline".
16. I am not entirely sure that the first part of the description of their disagreement is apt (although reflective of the drafting of the relevant contention) but prefer to consider more specifically the considerations in the Guideline which are mandatory relevant considerations.
17. Ms Warton in the primary joint report said: "The building does not have a character consistent with the residential context. Although two storey, the building features over-scaled elements, not typical of dwelling-house or even an RFB. The most discordant elements are the: - large covered acoustic wall/roofed area on the northern side of the building - unbroken length of the first floor - enclosed fire stair on the front elevation."
18. In the supplementary joint report Ms Warton acknowledged the amendments had made an improvement to the articulation and set back on the northern side but said that "the effect of reducing the highly visible bulk of this form is minimal". Ms Warton also articulated that there is inadequate setback of the driveway to the side boundary and the landscaping there is minimal and uncharacteristic. Ms Warton opined that "most observers would definitely find that the proposed development as amended, by virtue of its siting, bulk and form, is jarring and unsympathetic in the streetscape context having regard to the existing built form characteristics of development within the site's visual catchment and the existing and likely future character in the zone."
19. Mr Boston "considers that the additional articulation and amended detailing provided to the front façade reduces the visual bulk of the building as viewed from the street and results in a complementary and compatible streetscape appearance" (Supplementary Joint report at par 46). He says that there are other examples of the "parapeted wall" in recently constructed dwellings nearby. The front façade of the development, he opined, will not be perceived as inappropriate or jarring in the context which includes a large dual occupancy on the other side of The Esplanade together with the significant screening and softening of the façade from the proposed landscaping at the front and the existing street tree.
20. Mr Boston also pointed to the constraint posed by the Tallowwood tree in the front verge as a limitation on the location of the driveway and the consequent narrow strip of landscaping between the driveway and the boundary with 2 The Esplanade. He said that the jasmine to be grown on lattice will be sufficient landscaping in that location.
21. The Applicant submitted that the northern side of the building was now properly articulated and that the elements of bulk had been ameliorated. The Applicant submitted that both basement carparks and acoustic walls are commonplace for child care centres in residential zones such as the present. The Applicant likened the acoustic canopy to a pergola above a courtyard which is characteristic of residential development, albeit acknowledging the length of the canopy in this case. The Applicant also pointed to a limited visibility of the acoustic wall and canopy when viewed from the street.
22. In my opinion, it is not appropriate to simply point to one element of a proposal which is not seen in a particular local area to ground a conclusion of failure to be compatible with the character of an area. An exception would be of course if that one element was so dominating as to overwhelm the proposed development in any event.
23. It is necessary to consider the whole of the development in its physical and planning context. A narrow landscaping strip on a side boundary may be of itself uncharacteristic of residential development in an area but in its particular context the development may not be out of character. Similarly, an acoustic barrier which exceeds the height of the usual side boundary of a dwelling or other residential development may of itself not be characteristic, but in its context the development as a whole may not be out of character.
24. Similarly, weight must be given to the zoning of an area and its permissible uses. The oft-quoted words of McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 are pertinent: "117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project."
25. A child care centre can be recognised by its form as such and does not need to look like a dwelling house or any other particular form of residential development even when in a residential zone. But in considering whether or not the design of the proposal is appropriate the Guideline provides the parameters which reflect a need for the new building to "fit" into its neighbourhood. To repeat in summary some of the considerations from the Guideline extracted above: "- designed in character with the locality and existing streetscape - reflect the predominant form of surrounding land uses - recognise predominant streetscape qualities, such as building form - integrate car parking into the building and site landscaping design in residential areas - scale of the child care facility is compatible with adjoining development and the impact on adjoining buildings is minimised - side and rear boundary setbacks should observe the prevailing setbacks required for a dwelling house - respects and responds to its physical context such as adjacent built form, neighbourhood character, streetscape quality and heritage"
26. It is in a combination of factors which lead to the failure of the proposal to meet the considerations in the Guideline.
27. First, the setback of the driveway and basement entrance to the northern boundary, being only about 250mm to 450mm, is much narrower than characteristic and less than the side setback for a dwelling house required by KDCP 2013. The proposal does not observe the prevailing side setbacks which exist or which would otherwise be required.
28. This failure is exacerbated by the risk to the landscaping on 2 The Esplanade. Whilst it could be argued that the handsome Murraya hedge provides a sufficient landscaped border between the properties, the hedge itself is put at risk by the excavation for the driveway and basement.
29. Second, the opening to the basement. Of itself a basement for a child care centre is not unexpected and is in fact a preferred way to provide off-street parking in many instances. The context of this basement is compromised by the inadequate landscaping to the northern boundary. The basement would be unexceptional if it was adjoined by 1.5m or the like of landscaping, but it is not, and it thereby becomes dominant and uncharacteristic in the streetscape.
30. Third, the acoustic wall. It is now set back some 1.7m from the northern boundary and there is landscaping to its north which plays an appropriate role in minimising the impact of the wall. The wall alone would in my view be acceptable because it is not towering over the neighbour and its perceived height is less than 2.4m because of its setback. It is its combination with the canopy which is the problem.
31. Fourth, the acoustic canopy. The canopy is from 2.4m to 3.6m in height running about 22m along the northern boundary. It is visible from the street, though of course not in its entirety, and only from certain angles, although it could not be missed to the passing viewer.
32. It is far larger than even a generous pergola, and of a height which is higher than one would expect of a pergola. This is not to say that in a proper context such a canopy could not be acceptable. It is the context and combination of factors which to my mind is critical.
33. Fifth, the length of the wall of the first floor. Whilst there is some articulation in the wall which means it is not in an unrelieved single plane, that articulation is unlikely to be perceived in any material way to the viewer from the street and the wall will be "read" in combination with the acoustic wall and canopy. Of itself the wall on the northern side is acceptable, it is its relationship to the other built form proposed which is the difficulty.
34. The five factors together mean that the proposal does not fit in with the local character, reflect the predominant form of surrounding development or integrate carparking with the landscaping. The presentation of the development is of very limited landscaping to the northern boundary, leading to a large basement opening, largely unprotected by softening landscaping, behind which is an acoustic wall capped by a long high canopy with a perceived to be unrelieved first floor wall of about 27m. It is a significantly bulky presentation not of a residential scale or context, largely because of the inability to provide an adequate landscaping strip to the north.
35. Taking into account the relevant matters in the Guideline it is my opinion that the proposed child care centre is not of an appropriate design to warrant approval. This does not mean that a child care centre is not appropriate for the site, only that this design is an inappropriate response to the site and its local area.
36. Whilst it is true that the Tallowwood in the verge is a constraint upon the form of development of the site, such a constraint does not justify an unsatisfactory form of development. Most sites have some form of constraint and appropriate development properly takes into account the constraints of the site. It is true that some constraints, flood affectation comes to mind, may lead to non-compliance with a development standard such as height, but the form of the development must nevertheless be appropriate in its physical and planning context

Conclusion

1. It is for the foregoing reasons that the proposed development is not appropriate, and the appeal must be dismissed.
2. I make the following orders: 1. The appeal is dismissed. 2. Development application DA2017/0659 for the demolition of the existing dwelling house and the construction of a two storey child care centre (proposal) at Lot 189 in Deposited Plan 6202 known as 4 The Esplanade, South Hurstville is determined by refusal. 3. The exhibits be returned other than exhibits A, Q, R and 1. ……………………….. P Clay Acting Commissioner of the Court

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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: 20 August 2021