Ekon Pty Ltd v Hornsby Council

Land and Environment Court (NSW)|2020-11-18

Introduction

This is an appeal pursuant to s 8.15 Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Respondent (Council) of Development Application DA 1111/2017 (DA) for the demolition of existing structures and construction of a 52 place child care centre at Lot A in Deposited Plan 411012 known as 53-55 Oakleigh Avenue, Thornleigh (site).
There has been significant local opposition to the proposed child care centre. In many ways that is unsurprising, as the prospect of such a facility in an otherwise quiet traditional low scale residential street is unwelcome to many. Development for the purpose of child care centres is now well regulated, and in many local government areas, including Hornsby, are a permissible use, with development consent, in low density residential areas largely because of the need they serve.
The assessment process is, as always, governed by the EP&A Act, and involves consideration of a number of matters, including the relevant environmental planning instruments (s 4.15(1)(a)(i) EP&A Act), submissions from the public (s 4.15(1)(d) EP&A Act) and the expert evidence before the Court (s 39 Land and Environment Court Act 1979 (Court Act)).
On 13 February 2020 I conducted a conciliation pursuant to s 34 of the Court Act. During the course of the conciliation, I inspected the site and the surrounding neighbourhood including the properties of the immediately adjacent neighbours. I also heard submissions from a number of local residents. The parties consented to me hearing the matter and to me taking into account the observations of the site and neighbourhood I made during the conciliation, but without regard to any privileged communications made between the parties at that time.
By the time of the hearing I did not have a detailed recollection of the submissions made at the conciliation and no notes of their submissions were tendered. However, there are a large number of written objections, and oral evidence was given during the hearing, which is referred to below.

The site and locality

The site is on the corner of Oakleigh Avenue and Nicholson Avenue. Its principal frontage is to Oakleigh Avenue of 31.7m and its secondary frontage to Nicholson Avenue of 25.11m. It is slightly irregular in shape, although largely rectangular and has an area of 966 sqm.
On the site is a relatively small dwelling which is to be demolished, and a number of trees, both exotic and native. There are also large trees on the road reserve in the vicinity of the site.
The locality is a low density residential area, where most dwellings are two storey, with landscaped front and rear yards. Thornleigh West Public School is about 300m from the site.
To the east of the site is 51 Oakleigh Avenue on which is located a two storey brick and tile house. To the south is 2 Nicholson Avenue on which is located a single storey weatherboard and tile house.
The front fencing in the general area is said to be part of its character. The fencing proposed was in issue between the parties in terms of whether it is consistent with the character of the area, and that evidence is dealt with when considering that issue.

Statutory framework

The site is zoned R2 (Low Density Residential) pursuant to Hornsby Local Environmental Plan 2013 (HLEP 2013). In the R2 zone Centre-based child care facilities (child care centres) are permissible with development consent.
Clause 2.3(2) of the HLEP 2013 requires the consent authority (now the Court exercising the power of the Council) to have regard to the objectives of the zone when considering a development application. The objectives of the zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
There is no issue, and I accept, that the proposed development is consistent with the only relevant objective, in that it is a land use which provides facilities or services to meet the day to day needs of residents, childcare being such a need.
Clause 4.3 of the HLEP 2013 and the Height of Buildings Map provide for a height control of 8.5m with which the proposal development complies. There is no floor space ratio control in HLEP 2013 applying to the site.
Earthworks, including earthworks ancillary to other development as in this case, is dealt with in cl 6.2 of the HLEP 2013. It sets out mandatory considerations which must be taken into account before the grant of development consent. There is no issue between the parties as to any such matters, and I accept that they have been considered in the material before me.
Whilst the site is subject to State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 and Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (No 2 - 1997), no issue arises in respect of those instruments and there are no mandatory considerations nor jurisdictional preconditions therein.
There is a national system of registration and control of child care centres, which is implemented by State Acts and regulations, including in New South Wales. It is unnecessary to chart the legislative framework in detail, except in so far as a provision is referred to in State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP). The Child Care SEPP applies to the whole State (cl 4).
The aims of the Child Care SEPP are set out in cl 3: The aim of this Policy is to facilitate the effective delivery of educational establishments and early education and care facilities across the State by - (a) improving regulatory certainty and efficiency through a consistent planning regime for educational establishments and early education and care facilities, and (b) simplifying and standardising planning approval pathways for educational establishments and early education and care facilities (including identifying certain development of minimal environmental impact as exempt development), and (c) establishing consistent State-wide assessment requirements and design considerations for educational establishments and early education and care facilities to improve the quality of infrastructure delivered and to minimise impacts on surrounding areas, and (d) allowing for the efficient development, redevelopment or use of surplus government-owned land (including providing for consultation with communities regarding educational establishments in their local area), and (e) providing for consultation with relevant public authorities about certain development during the assessment process or prior to development commencing, and (f) aligning the NSW planning framework with the National Quality Framework that regulates early education and care services, and (g) ensuring that proponents of new developments or modified premises meet the applicable requirements of the National Quality Framework for early education and care services, and of the corresponding regime for State regulated education and care services, as part of the planning approval and development process, and (h) encouraging proponents of new developments or modified premises and consent authorities to facilitate the joint and shared use of the facilities of educational establishments with the community through appropriate design.
Part 3 of the Child Care SEPP makes provision for specific development controls for child care centres. Clause 22 provides: 22 Centre-based child care facility - concurrence of Regulatory Authority required for certain development (1) This clause applies to development for the purpose of a centre-based child care facility if - (a) the floor area of the building or place does not comply with regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, or (b) the outdoor space requirements for the building or place do not comply with regulation 108 (outdoor unencumbered space requirements) of those Regulations. (2) The consent authority must not grant development consent to development to which this clause applies except with the concurrence of the Regulatory Authority. …..
The constraint on the consent authority is that if, for example, the outdoor space requirements for the children do not comply with the relevant regulation, then the consent authority cannot grant development consent without the concurrence of the Regulatory Authority (the Regulatory Authority is the Department of Education in New South Wales.) In an appeal where the Court is exercising the power of the consent authority, then by virtue of s 39(6) of the Court Act, the Court can exercise the concurrence power of the Department of Education. That said, the concurrence power would not be exercised lightly, as there would need to be good reason for a specified standard not to be met.
The outdoor space control is one which the Council says has not been met. Clause 108 of the Education and Care Services National Regulations (National Regulations) provides: 108 Space requirements - outdoor space (1) This regulation does not apply in respect of a family day care residence. (2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space. Penalty: $2000. (3) In calculating the area of unencumbered outdoor space required, the following areas are to be excluded - (a) any pathway or thoroughfare, except where used by children as part of the education and care program; (b) any car parking area; (c) any storage shed or other storage area; (d) any other space that is not suitable for children. …….
The phrase "unencumbered outdoor space" is not defined in the National Regulations except to the extent of the nominated excluded areas in cl 108 itself. The phrase is not defined in the Child Care SEPP.
The Child Care Planning Guideline (the Guideline) does provided assistance in determining how unencumbered outdoor space is calculated. The Guideline is a mandatory relevant consideration by virtue of cl 23 of the Child Care SEPP which provides: 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.
The Guideline cannot of course provide a definition for the purposes of the Child Care SEPP or the National Regulations, but its terms are mandatory relevant considerations.
The only other provision of the Child Care SEPP to observe is cl 26 which provides that a requirement, standard or control in a development control plan on certain subject matters does not apply. Those excluded matters include matters identified in Part 2 (Design Principles) and Part 3 (Matters for Consideration) of the Guideline. Clause 26 effectively provides that the only controls in a development control plan which will apply to the consideration of a development application for a child care centre are building height, side and rear setbacks and car parking rates.
The Guideline is a comprehensive document the planning objectives of which are set out in section 1.3: "The planning objectives of this Guideline are to: • promote high quality planning and design of child care facilities in accordance with the physical requirements of the National Regulations • ensure that child care facilities are compatible with the existing streetscape, context and neighbouring land uses • minimise any adverse impacts of development on adjoining properties and the neighbourhood, including the natural and built environment • deliver greater certainty to applicants, operators and the community by embedding the physical requirements for service approval into the planning requirements for child care facilities."
There are controls in the Guideline which are designed to achieve its objectives, and of particular relevance in this case are the controls which seek to achieve the second and third objectives - compatibility with streetscape context and impacts on neighbouring properties. The objective of high quality planning and design of child care facilities is also relevant to the issue of whether there is adequate unencumbered outdoor space.
Section 3.2 of the Guideline deals with "Local Character, streetscape and the public domain interface". Included is the following: "Objective: To ensure that the child care facility is compatible with the local character and surrounding streetscape. 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."
Effectively the clause sets out a check list of matters to determine whether the proposed development is compatible with the local character and streetscape.
Fencing is also dealt with: "Objective: To ensure that front fences and retaining walls respond to and complement the context and character of the area and do not dominate the public domain. C9 Front fences and walls within the front setback should be constructed of visually permeable materials and treatments."
Whilst the "control" expressed in clause C9 calls for visually permeable materials, that may or may be necessary or appropriate in order to complement the context and character, depending upon the particular circumstances of a site.
The Guideline recognises the application of cl 108 of the National Regulation in section 4.9. After setting out its provisions, the Guideline then provides what is described as "Design Guidance": "Design Guidance Calculating unencumbered space for outdoor areas should not include areas of dense hedges or plantings along boundaries which are designed for landscaping purposes and not for children's play (refer to Figures 9 and 10)."
The Figures 9 and 10 referred to show diagrammatically the exclusion of dense hedges or boundary planting which is for landscaping only and not for children's play. The Figures indicate the existence of landscaping within outdoor play areas which is assumed to be designed to be available for interaction with children.
It is important to note, however, that cl 108 must be applied in its terms - that is, the first question about unencumbered outdoor space is whether there is the minimum 7 sqm per child as defined in the Regulation. If not, then concurrence of the Regulatory Authority is required. If there is compliance then no more onerous standard can be applied by the Guideline or any other instrument, by virtue if the operation of cl 25(2)(b) of the Child Care SEPP.
The Guideline provides "Design Guidance" as to how compliance may be achieved. It should not be thought that it sets the standard required by cl 108.
Hornsby Development Control Plan 2013 (HDCP 2013) applies to the site. There are controls for child care centres in section 7.1 relating to "Community Uses". The Council sought to rely on the provisions relating to landscaping and fencing in section 7.1.4 and "Design Details" in section 7.1.8. in my opinion each of the provisions relied upon by the Council "specifies a requirement, standard or control" in relation to matters which are in Part 3 of the Guideline and therefore do not apply in terms to the assessment of this application.
That said, the provisions referred to by the Council do little more than reflect the provisions of the Guideline which seek to achieve the objective of compatibility with the neighbourhood.
It is worthy of note that there are setback controls in HDCP 2013 which do apply to the proposed development and with which there is compliance.

The application

Typical of the majority of appeals before the Court in its Class 1 jurisdiction, the application has had a number of iterations since its first lodgement with the Council and then the Court. It is not necessary to detail the history of the amendments, but to simply note that amendments have been made to the proposed development in response to issues and contentions raised by the Council, responsive to acoustic expert advice and the evidence in the proceedings.
Whilst this course of events is unremarkable to practitioners in this jurisdiction, one can understand the frustration of the local community when there are many changes to an application, including changes made during a hearing.
The proposed development is to demolish the existing dwelling on the site and construct a two storey child care centre with basement parking. The basement has 14 car spaces, including two disabled parking spaces.
A lift services the basement and each level of the child care centre. The ground floor facilities comprise:

Foyer and office;
Two cot rooms;
Two nappy change areas;
Two bathrooms;
Kitchen;
Two storage areas;
Three indoor play areas;
Four connected outdoor play areas, two of which are covered.

The first floor comprises:

Staff room;
Laundry;
Two bathrooms;
Indoor play area;
Storage area.

The child care centre is for 52 children as follows:

20 children 0-2 years
12 children 2-3 years
20 children 3-5 years

It is proposed to operate from 7.30am to 6.00pm Monday to Friday (except for public holidays) throughout the year.
A comprehensive plan of management was tendered which deals with operational and management matters.

Objector evidence

In addition to the large number of written objections received by Council when the original application and an amended application were notified, six local residents gave evidence at the hearing. Evidence was also given by Mr Danny Jones, a town planner retained by two local residents. Mr Jones' evidence was not expert evidence but was a submission on behalf of his clients with the benefit of his qualifications and experience as a town planner.
The objector evidence can be summarised in this way:

It is unsafe to bring additional traffic into the area, especially with additional children, when the access street is narrow and includes an approach over the crest of a hill;
The child care centre will be too noisy;
There will be difficulties leaving the centre in an emergency such as bushfire;
The building and fencing will be out of character;
Trees will be lost;
The serene nature of the neighbourhood will be lost, the enjoyment of homes and ambience of the area will be destroyed;
The proposed development will be ugly.

In addition to these matters, Mr Jones addressed what he described as shortcomings in the internal design of the child care centre.
The evidence was given by the objectors in a concerned and measured way, with occasional emotion demonstrating the depth of feeling about the proposed development.

Issues

The issues ultimately pressed by the Council were its contentions that: 1. the proposed development was not compatible with the streetscape and character of the neighbourhood (in relation to fencing and landscaping); 2. the total area of the outdoor play areas did comply with National Regulation cl 108; 3. the plan of management could not reasonably be complied with; 4. the Norfolk Island Pine (Tree 1) was at risk of being lost when it needs to be retained; 5. the detail of covered outdoor space should be provided, and it is not shown on any plan.
It needs to be noted that over the course of both the assessment of the DA and of the proceedings, the acoustic impact of the proposed development was in issue, then it was resolved by the provision of information or amendment of the plans, then requiring further assessment with a change to the plans and potentially once again in issue. At the commencement of the hearing, the Council was satisfied that the relevant acoustic standards were met and the acoustic impacts of the proposed development were not in issue between the parties.
A proposed amendment to the plans the subject of the proposed development at the outset of the hearing gave rise to the potential for an acoustic impact. I was informed that Dr R Tonin was retained by the Council to assess acoustic impacts and Mr S Cooper was retained by the Applicant. During the hearing Dr Tonin was required to consider the impact of the minor amendment to the plans and conferred with Mr Cooper. Although the acoustic experts were not required to give evidence (orally or in writing), I was informed by Mr Pickup for the Council that Dr Tonin was satisfied that there was no acoustic issue arising from the proposed amendment.
Dr Tonin and Mr Cooper are well known to the Court and both have a wealth of knowledge and experience. I had no hesitation in accepting that if each of Dr Tonin and Mr Cooper opine that the acoustic impacts of the proposal are acceptable then it was quite proper of the Council to concede as such, and I accept there is no acoustic issue.

Expert evidence

Town planning evidence was given by Mr G Boston retained by the Applicant and Ms J Blazevic employed by the Council. Landscape architects also gave evidence, Ms S Stratton retained by the Applicant and Mr D De-Fina employed by the Council.
Ms L Campbell drafted the plan of management and is qualified and experienced in the operation and management of child care centres. She had not made a statement of evidence, but the Council asked that she be made available for cross-examination. Although strictly not obliged so to do, the Applicant, quite properly in my opinion, called Ms Campbell to give short oral evidence to the effect that she was the author of the plan of management and then be available for cross-examination.
In the Landscape Architects joint report:

The experts agreed that the proposed 1.8m fence along the Nicholson Street frontage was acceptable as it is the side fence of a corner property;
The setback of the (front) fence to Oakleigh Avenue of 1m was appropriate and the landscaping on the outside of the fence should be a species with a mature height of 2.5m (Star Jasmine infill climber and Lilly Pilly suggested species);
Ms Stratton recommended the (front) fence to Oakleigh Avenue, which has a height of 2.2m be constructed of 1.5m solid material and a transparent material of 700mm;
Mr De-Fina agreed that would be preferable but deferred to the acoustic experts to confirm acoustic performance and the town planners in relation to streetscape character and context;
The experts agreed that the planting within the Tree Protection Zone (TPZ) of certain trees, including Tree 1, necessitated the provision of irrigation to benefit both new and existing vegetation.

In oral evidence, when invited by Mr Pickup to comment on the impact of the proposal on Tree 1, Ms Stratton observed that a characteristic of the Norfolk Island Pine is that its roots tend to grow straight into the ground rather than spread and so the planting in vicinity was unlikely to have a significant impact on the tree.
In the town planning joint report, the experts agreed that:

Oakleigh Avenue is characterised by 1, 2 and 3 storey detached dwelling houses with front setbacks occupied by driveways, landscaping and in some instances open style front fencing;
Nicholson Avenue is characterised by 1 and 2 storey detached dwellings with front setbacks occupied by driveways, landscaping and front fencing of variable height and materials, and that there are numerous examples of fencing and vegetation hedging up to 1.8m in height on corner allotments;
Across from the site is a Colorbond side fence 1.8m in height on the Nicholson Avenue (side) frontage of the corner site. There is a 3m dense vegetation hedge at a dwelling two blocks to the north.
The proposed 1.8m lapped and capped fence along the Nicholson Avenue frontage is compatible with the Nicholson Avenue streetscape and character;
The Oakleigh Avenue boundary landscaping in front of the fence will be mean that the 2.2m fence will not be a visually prominent element in the streetscape;
The Oakleigh Avenue fence would be more characteristic as 1.8m solid lapped and capped and 400mm clear upper panel;
The fence and hedge screening will be compatible with the existing streetscape;
The glazed entry path awning should be setback 5.8m from Oakleigh Avenue;
A 2.9m long and 3m high acoustic barrier (of masonry and glazing) which is perpendicular to Oakleigh Avenue extending to the boundary should be moved, increasing its setback to Oakleigh Avenue, and also moved 1.5m to the west, across to the other side of an internal entrance path and therefore closer to the neighbouring property at 51 Oakleigh Avenue (although that was not the objective);
Assuming the acoustic experts "endorsed" the changes, with these amendments the "development, including the required acoustic fencing/barriers and landscape treatments, provide for a child care centre on the site that is compatible with the existing streetscape, context and neighbouring land uses".

The experts appended to the joint report a plan showing the proposed amendments.
As it transpired, the plans in respect of which the Applicant sought development consent differed from the recommendation of the planners in the joint report in relation to the acoustic wall perpendicular to Oakleigh Avenue (acoustic wall) in the following respects:

The setback of the acoustic wall from Oakleigh Avenue was reduced from a setback proposed of 3.12m to 2.69m. That is, the wall is some 430mm closer to Oakleigh Avenue than assumed in the joint report;
The acoustic wall would no longer be partly stepped (of 500mm), but rather than two thirds solid and one third glazed, it would be one half solid and one half glazed.

In oral evidence Mr Boston said that he is still "comfortable" that the proposed development is compatible with the streetscape and character of the area. He observed that the acoustic wall is now shielded in part by Tree 1 (the Norfolk Island Pine) and is further away from the neighbouring property to the north.
Ms Blazevic regarded the acoustic wall as out of character having regard to the changes made to the assumptions which led her to her earlier conclusion to the contrary. She said that the glazing was uncharacteristic and that the acoustic fence is unsympathetic in the streetscape.
Mr Boston was cross-examined about fencing in the locality and did not accept that there was a preponderance of open style from fencing but said there was a mix of forms and heights, as well as a mix of landscape treatments. He did not accept that there was an impact on Tree 1, whilst observing he is not an arborist. He also did not accept that the landscaping proposed within the fencing meant that there was a non-compliance with cl 108 (minimum outdoor play area) but noting that there was a reduction in area with the most recent changes to the plans.
At my request the planners provided a calculation of the outdoor play area excluding all the area of landscaping which is within that area. The outdoor play area required by cl 108 is 364 sqm (52 children x 7 sqm). The total outdoor play area including the landscaped area within is 366.05 sqm. The outdoor play area excluding the landscaped area within is 344.3 sqm.
Ms Campbell said that in her experience the plan of management was capable of implementation. She said that controlling where children play and in what numbers is part and parcel of management of child care centres. She agreed that the limited numbers permitted outside at any one time was relatively low in comparison to the total number of children, but it was both manageable and acceptable. She did not accept that the landscaping proposed within the outdoor play areas should not be counted as unencumbered outdoor play area. She said that landscaping like that proposed was part of the experience for children at a child care centre and that they will interact with the landscaping.

Submissions

The Applicant relied upon Mr Boston's evidence. It was submitted that the changes from the planners' assumptions in the joint report were minor and, in some ways, beneficial by moving away from the neighbour and increasing visibility of landscaping through the increased glazing.
It was submitted that the internal landscaping was not dense landscaping and so was unencumbered outdoor play area. The Applicant relied on the uncontested evidence of Ms Campbell in relation to the plan of management that its limits on the number of children playing outside in order to achieve the acoustic goals was not unreasonable and manageable.
As to Tree 1 the Applicant pointed to the absence of evidence that it would be adversely affected. The Applicant also proffered a condition providing for appropriate treatment of the covered outdoor play area.
The Council relied upon Ms Blazevic's evidence. It was submitted that the fencing does not reflect the character of the area and is not in harmony. The fact there is a hedge in front of the fence on Oakleigh Avenue, it is said demonstrates the proposed fencing is out of character.
It was submitted by the Council that the presence of the internal landscaping meant that the outdoor play area was encumbered by that landscaping and so there was a non-compliance with cl 108. Whilst it was accepted that the Court has the power to exercise the concurrence role of the Regulatory Authority, it was submitted that it should not.
The Council submitted that there must be a "query" over the survival of Tree 1 and that it was a significant tree which should not be lost as a consequence of this development. It was also submitted that the plan of management is difficult to comply with and that details should have been provided of the treatment of the outdoor covered play area to demonstrate that it will be appropriately treated for the children to play and experience.
The Council urged on the Court the submissions of objectors, particularly in relation to streetscape and that there are too many children proposed at the centre on a small site, taking into account what was said to be the shortfall in outdoor play area.

Consideration

It is appropriate at this point to quote the observations of Robson J when dealing with an application for a child care centre which also attracted significant local objection in Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 at [76]-[78]: "76. First, where land by its zoning 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 whether development is appropriate. As has been frequently stated by this Court, whilst the fact that a particular use may be permissible is generally a neutral factor, a planning decision must generally reflect an assumption that development which is consistent with the zoning will be permitted. This is because the Act provides a complex regime, including extensive public participation, to determine the nature and intensity of development which may be appropriate at any site, and accordingly weight should be given to the outcome of this process (see BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 at [117]-[118] per McClellan CJ of LEC). 77.. Second, the above does not mean that the Court must not give close consideration to all matters otherwise required pursuant to s 79C of the Act. Whilst I take account of the fact that many of the issues initially identified by Council are no longer pressed, each of the issues that are now before the Court require consideration based upon the evidence now available. 78. Third, the extensive and well-considered objections to the proposal are clearly indicative of extensive local community concerns. While these concerns are understandable, they must be closely considered in the context of the amended application and the evidence now before the Court, particularly the expert evidence."
The observations of his Honour are apt in this case.

Character

The planning experts agreed that the character compatibility test was met with the changes identified in the joint report. The changes which were not made related only to the acoustic wall perpendicular to Oakleigh Avenue. That wall is part of the overall proposed development and is not a fence for the proposed development.
The Child Care SEPP requires the Court to take into consideration the Guideline. At [30] above I have set out the relevant part of the Guideline dealing with streetscape and character. At [32] is the provision about fencing.
The experts agree that the fencing is appropriate and compatible. I agree for the reasons they provide and as hereafter set out.
The site is a corner block and, consistent with dwellings on corner blocks in the neighbourhood, the proposed development will address only its principal frontage, Oakleigh Avenue, and treat its secondary frontage, Nicholson Avenue, as effectively a side boundary. As the experts observed, and was apparent to me, the secondary frontages of corner blocks are fenced generally with fences of 1.8m in height, typical of a side fence. The material may be Colorbond (as across the road) or timber or landscaped hedging. The experts opined, and I agree, that on a secondary frontage a timber lapped and capped fence is characteristic of the area, and of Nicholson Avenue.
The Oakleigh Avenue frontage is to be a hedge to 2.5m in due course, behind which is a 2.2m fence, lapped and capped to 1.8m and clear for the remaining 400mm. The planning experts opine, and I agree, that a hedge boundary treatment means that the fence itself will not be a visually prominent element in the streetscape.
The objective in the Guideline is to ensure that front fences respond to and complement the context and character of the area and do not dominate the public domain. The Guideline suggests that the manner of achieving that objective is to provide for "visually permeable" materials and treatments. Plainly that is not the only manner in which the objective can be achieved.
The fence itself will barely be visible once the hedge is established, together with the fill in creeper. The landscape architects have nominated the species to achieve the hedged outcome which they agree is compatible in the area. Hedged boundary treatments occur within the area and are by no means an exception to open front fences. There are a variety of fence and boundary treatments in the area, of which hedging is one.
In my opinion, the front fence itself responds to and complements the context and character of the area because it will sit comfortably behind and shielded by the front hedge. It will not in any way dominate the public domain. The front hedge is not uncharacteristic, as there are other examples in the area, and there is no consistency in boundary treatment which would lead to the conclusion that a hedge treatment is out of character. Suffice to say also, that treating the hedge as the front fence it will complement the character of the area and will not dominate the public domain. It will appear not as a solid wall but vegetation with texture, forming a hedge.
The heart of the issue of character turns on the acoustic wall. The changes which both were and were not made, for Ms Blazevic "tipped the balance" from acceptable to unacceptable. The acoustic wall became an unsympathetic item in the streetscape she said.
I do not agree. It is not appropriate to consider the acoustic wall alone. Rather it must be considered as part of a building, and indeed also in the context of fencing and landscaping, all of which is accepted by the planners as being compatible with the character of the area and of the streetscape.
The acoustic wall will commence some 2.69m from the front boundary. To the east is the pathway to the centre, then the driveway into the basement, and then a 2m wide landscaped area to the eastern boundary. Tree 1, the large Norfolk Island Pine, is to the west and in front of the acoustic wall. Then the hedge planting is located on the boundary in the westward direction.
A person approaching from the west will not see the acoustic wall because of the boundary planting until they are directly in front of it. The reduced setback of 430mm will not be perceived, and the viewer will barely perceive the wall, but to the extent they do so it will be against the backdrop of a modern child care centre building reflective of a compatible size, scale and character.
A person approaching from the east will only perceive the acoustic wall once adjacent to the driveway entrance to the basement. The most obvious aspect of the wall will be the glazing from 1.5m and above, through which landscaping, or other elements of the proposed development will be perceived. I do not accept that the acoustic wall alone will stand as a feature, and given its limited visibility, and the context of that visibility, it is not unsympathetic in the streetscape.
Ms Blazevic had accepted the appropriateness of a similar acoustic wall some 430mm further set back and with a step in perceived height of 500mm for part of its length. She agreed that was not unsympathetic in the streetscape. The concept of an acoustic wall in the same location for the most part is not unacceptable to her. I do not consider that the minor changes tip the balance to unacceptability.
I would add that I agree there is a benefit, albeit minor, to moving the wall further from the northerly neighbour in terms of the perceived relationship between the two properties. A higher element further removed is less intrusive whatever the material of its construction. Further, the positioning of the wall on the eastern side of the entrance pathway is a more logical design outcome. The driveway and path, both points of entry, are adjacent, not separated by the acoustic wall, and the wall is immediately adjacent to the play area. That is, there is a better distinction between the entry points and the operational areas of the child care centre.
In my opinion the proposed development meets the objectives of the Guideline in relation to compatibility with the local character and surrounding streetscape, both in relation to the building components and the boundary treatments including fencing.

Outdoor play area

Clause 108 requires that there be 7 sqm of unencumbered outdoor space for each child. The National Regulation excludes from calculation any pathway, car parking, storage shed or area and any other space not suitable for children. The Council does not suggest that any of those exclusions apply. I agree.
The Council argues that the landscaping within the outdoor area encumbers that area and should be excluded from calculation. If that be so, there is a shortfall.
The uncontested evidence of Ms Campbell is that outdoor play areas can include landscaping and such vegetation can provide both amenity and opportunities for interaction for the children. The Guideline refers to exclusion of dense hedging or planting along boundaries which are designed for landscaping purposes and not for children's play.
"Unencumbered" means free of encumbrance and "encumbrance" is relevantly a hindrance (Macquarie Dictionary 5th Ed). Logically the phrase unencumbered outdoor space anticipates an area where children are not hindered from playing. A dense hedge is one example of what may be assumed to be like a solid barrier of vegetation, therefore a hindrance or encumbrance.
Here the landscaping is within a garden bed and is characterised by low plantings, shrubs and occasional trees. It is not proposed as a barrier and will not form a dense hedge. Children will be able to enter the garden bed and interact with the vegetation and whatever else may be found in the garden beds and enjoy the shade of the trees. Landscaping should be part of an outdoor play area for children. Figures 9 and 10 in the Guideline show that there is landscaping provided in the graphically demonstrated unencumbered outdoor space.
In my opinion it is appropriate to include the landscaped area as unencumbered outdoor space. The proposed development therefore complies with cl 108.
Two further observations ought be made. First, considering the provisions of the Guideline, the landscaping is mostly of a height lower than the boundary fence on Nicholson Avenue and the hedging fronting Oakleigh Avenue. That is, it is not for the most part landscaping which will be appreciated from outside the site. It is not "for landscaping only" because it cannot be seen from beyond the site. It is designed to engage the children and provide a benefit for them.
The second observation is that the standard of 7 sqm per child must anticipate that a significant percentage of children will utilise the outdoor play area at the same time. That is, the standard applies whether all the children are utilising the area, or whether, for other reasons only a small number of children can use the area at the one time. Here the acoustic goals can only be met if there are never more than 12 children able to use the outdoor play area at any one time. The required area for outdoor play is based on the potential use by 52 children. Whilst I accept that the standard probably did not assume all children using the outdoor area at the same time, it must have assumed a high proportion of children using it at the same time. Certainly the potential here for 12 children out of a possible 52, or even 12 out of a possible 34 children 2 years and above, is a lower proportion than would have been expected when the standard was determined. Ms Campbell in her evidence said the proportionate use of outdoor play area was low.
It follows that in my opinion even if the landscaped area was excluded, then the unencumbered outdoor space would meet the standard for 49 children (344 sqm /7 sqm per child), still well in excess of the maximum number of concurrent users proposed, and so I would consider it adequate and acceptable. If it was necessary, I would exercise the concurrence function of the Regulatory Authority and find the provision of unencumbered outdoor play area acceptable.

Plan of Management

It was lightly submitted that there may be concerns about the capacity to manage the centre as provided for in the plan of management. The evidence of the only qualified witness, Ms Campbell was unequivocal. The plan can be implemented. I accept that evidence.

Tree 1 - the Norfolk Island Pine

It is true to say that more recent amendments to the plans have brought greater encroachment closer to Tree 1. It is a large tree and it is intended to be retained.
Each of the landscape architects has arboriculture qualifications. Neither witness opined that the tree would fail. They acknowledged that an irrigation system is required, but otherwise did not express a specific concern about the ability of the tree to survive the construction of the proposed development.
At an earlier stage of the evolution of the design, the tree was to be removed. The Council's tree assessment stated: "Tree 1 identified as a Norfolk Pine now meets Councils (sic) criteria for being individually significant. The tree is visually prominent in the immediate area and identified as having a high retention value in the AIA [Arboricultural Impact Assessment] however it suggests it is not viable to retain this tree. Whilst the loss of this tree is not ideal if the application was to be approved replacement planting would be required to compensate for the loss."
The Council officer responsible did not require the tree to be retained, but rather wished to ensure there was a replacement for the lost tree. It could be said that the loss of any large tree is "not ideal", and the way the potential loss is described does not suggest the Council then was pressing for its retention.
There is no evidence upon which I could conclude that Tree 1 is likely to fail as a consequence of the proposed development. The landscaping experts require a proper irrigation system and that will be provided for in a condition of consent. Because there is never any certainty about the future of trees, whatever the circumstances, it is important that if the tree fails for any reason in the foreseeable future that there be a replacement large tree in its place. It will be a matter for Council to consider the appropriate species, but I would expect that any replacement tree would be a species endemic to the area rather than a Norfolk Island Pine.

Detail of outdoor covered space

It is true that cl 113 of the National Regulations provides that the provider must ensure that the outdoor spaces allow children to explore and experience the natural environment. The outdoor space, even when undercover, and not on natural ground, should provide a variety of experiences. The Council says that there is no detail provided of how the covered on-slab outdoor area is to be treated and that therefore the application is deficient.
This requirement is part of the effectively internal elements of a child care centre. It is a regulation which must be satisfied prior to registration of the centre. Ms Campbell said things such as "dry creek beds" can be created with rocks for children to have water play was an example of what can be provided.
It was not suggested that the provisions of the National Regulation cannot be complied with. It just had to be demonstrated now the Council said. I do not agree. This is not an aspect of the proposed development with any external manifestation. There are no impacts from the nature of the treatments to be provided. It is perfectly acceptable to provide a condition that there shall be compliance with the National Regulation and the provision of a plan of the treatment of the outdoor covered area prior to the issue of a construction certificate.

Matters raised by objectors

The principal concern expressed by many is traffic and safety. This has been assessed by the Council and the conclusion expressed in the assessment report was: "The traffic situation on the Oakleigh and Nicholson Avenue intersection is described in the [Applicant's traffic consultant's] report as "free flowing traffic" which would not result in unacceptable traffic with the increase in vehicle trips. Councils traffic Branch supports the conclusions within the traffic and Parking Impact Assessment however raises concerns over the design of the pick-up/set down area within the basement. The applicant was requested to amend the pedestrian path so that pedestrian and vehicle conflicts were eliminated. This was addressed in the latest amendment to the plans and Council raises no further objection. Council considers the application is acceptable with respect to traffic and parking."
Mr Pickup for the Council confirmed that the basement amendments were made and that the position of the Council with respect to traffic and parking is unaltered - the proposal is acceptable. There is no reason for me not to accept the evidence from the Council.
I should add that HDCP 2013 requires that parking be provided at the rate of 1 space per 4 children. In this case, with a capacity of 52 children a minimum of 13 car parking spaces is required. There are 14 spaces provided in the basement and obviously therefore the proposed development complies with the parking requirements of the Council.
There was plainly concern about the introduction of the land use of a child care centre into an area much loved by the residents, in particular for its ambience. The Council's own planning instrument, HLEP 2013, provides that a child care centre is a permissible use on the site. It is not open to the Court to simply say that there should not be a child care centre of any description on the site. The Council, and indeed the State, have determined as a matter of policy and strategy that child care centres are a use which can occur in residential areas such as Oakleigh Avenue, Thornleigh.
The Court must however decide whether the specific child care centre proposed is appropriate in the location. That involves the assessment undertaken by the Court having regard to the planning documents and guidelines to which I have referred and the evidence before the Court. The Court cannot make a policy decision but is bound to apply the relevant law and consider the evidence. Having undertaken that task, I consider it is appropriate to grant consent subject to conditions.

Conditions

The without prejudice conditions had not been agreed by the conclusion of the hearing but after the decision was reserved the parties have provided agreed conditions, with only one condition in dispute, condition 6(c).
Condition 6(c) is an additional condition proposed by the Applicant to deal with the possible failure of Tree 1, including provision for its replacement. The Council says that the condition should not be included because should it be necessary an approval will be required to remove the tree and a replacement can then be ordered (presumably under Tree Preservation Order powers).
Whilst that may be the case, it is possible the tree could fail and be removed without the need for any approval, for example it dies or is blown over in a storm. Accordingly, I consider that it is preferable to include the condition and have done so.

Costs

On the second day of the hearing, when the Applicant was granted leave to amend its development application to rely on amended plans, I reserved the question of costs as the parties were to enter into negotiations about costs thrown away as a consequence of the amendment. The parties have now agreed that there should be an order for costs pursuant to s 8.15(3) EP&A Act in favour of the Council for the costs thrown away as a consequence of the amendment of the application granted on 18 November such costs to be as agreed or assessed..

Conclusion

It is appropriate to grant development consent for the reasons I have set out. I make the following orders: 1. The appeal is allowed. 2. Development application DA 1111/2017 for the demolition of existing structures and construction of a 52 place child care centre at Lot A in Deposited Plan 411012 known as 53-55 Oakleigh Avenue, Thornleigh is approved subject to the conditions annexed and marked A. 3. The exhibits other than Exhibits A, 1 and 2 be returned. 4. The Applicant shall pay the Council's costs thrown away as a consequence of the amendment of the development application granted on 18 November 2020 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

Acting Commissioner of the Court Annexure A (287583, pdf)

Amendments 24 December 2020 - Pursuant to Uniform Civil Procedure Rules 2005 r 36.17, by the request of the parties, and the Courts own motion, amend condition 58 in the conditions of consent (marked 'Annexure A') to reduce the maximum number of children from 54 to 52. 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: 24 December 2020

(2004) 138 LGERA 237

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Cases Cited (3)