Isaiah 910 Pty Ltd v Hawkesbury City Council

Texts Cited: Hawkesbury City Council, Hawkesbury Development Control Plan 2023, November 2022
Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

Category: Principal judgment

Parties: Isaiah 910 Pty Ltd (Applicant)
Hawkesbury City Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
M Harker (Respondent)
Solicitors:
MillerPrince Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/424744

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal is about the consistency of a proposed child care centre with the objectives of the low density zone and character of the local area.

2. The Applicant, Isaiah 910 Pty Ltd (Isaiah) has appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against Hawkesbury City Council’s (Council) actual refusal of Development Application No. DA0304/24 (DA). The DA seeks consent for the demolition of existing structures, removal of identified trees and vegetation, and construction of a two storey 100 place centre-based child care facility with basement car parking at 635 George Street, South Windsor.

3. With consideration of the evidence and submissions, I find that the proposal has appropriately responded to the character of the local area and consent should be granted.

4. At the hearing, Isaiah sought and was granted leave to amend the DA pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) and s 39(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The motion was unopposed.

The site and context

5. The subject site, 635 George Street, South Windsor is legally described as Lot 5 DP 532478.

6. With a site area of approximately 1,505m2, the wide almost battle axe shaped lot has a frontage of 16.8m along George Street and rear boundary of 30.84m. The site falls towards the street with a cross fall to the south-west. As observed at the site view with the parties, the site is generally flat and is improved with a warehouse building, metal shed and car park. Development in the area is primarily residential and includes a mix of dwelling houses, dual occupancies and a few other uses, including child care centres. Unusually large nature verges form part of the streetscape.

7. The site is zoned R2 Low Density Residential pursuant to the Hawkesbury Local Environmental Plan 2012 (HLEP).

Key Issues

8. At the hearing, Council pressed that the following contentions in the Amended Statement of Facts and Contentions (Ex D) warrant refusal:

9. Contention 1 - Incompatible with the surrounding character (particulars (a) and (b) only).

10. Contentions 7 and 8 - Public interest, which correlates with contention 1.

11. All other contentions were agreed to be resolved through the joint expert reporting process, amendments to the DA and provision of additional information.

Expert Evidence

10. Expert town planning evidence was submitted in a joint expert report (Planning JER) (Ex 2) by Jonathon Wood for the Applicant and Adiba Kashfi for Council. Oral evidence was adduced at the hearing.

11. Expert traffic engineering evidence was submitted in a joint expert report (Traffic JER) (Ex 3) by Jason Rudd for the Applicant and Paul Corbett for Council.

Is the proposal incompatible with the character and anti-pathetic to the objectives of the zone?

12. Council presses that the proposal is excessive in scale and incompatible with the surrounding character of the low density residential zone.

13. The zone objectives to have regard to are:

Zone R2 Low Density Residential

1 Objectives of zone

…

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To protect the character of traditional residential development and streetscapes.

• To ensure that new development retains and enhances that character.

• To ensure that development is sympathetic to the natural environment and ecological processes of the area.

• To enable development for purposes other than residential only if it is compatible with the character of the living area and has a domestic scale.

…

14. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) states:

3.23 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.

…

3.26 Centre-based child care facility—non-discretionary development standards

(1) The object of this section is to identify development standards for particular matters relating to a centre-based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters.

(2) The following are non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of a centre-based child care facility—

(a) location—the development may be located at any distance from an existing or proposed early education and care facility,

…

(c) site area and site dimensions—the development may be located on a site of any size and have any length of street frontage or any allotment depth,

(d) colour of building materials or shade structures—the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area.

15. Section 3.27 of SEPP TI sets aside provisions of all DCPs, and in this instance, the Hawkesbury Development Control Plan 2023 (HDCP) in relation to:

16. Operational matters.

17. Need or demand.

18. Proximity to other centres.

19. Any controls that are dealt with in Parts 2, 3 or 4 the Child Care Planning Guideline prepared by the Department of Planning, Industry and Environment dated September 2021 (CCPG).

20. Section 3.27 of SEPP TI does not set aside DCP controls in relation to building height, side and rear setbacks or car parking rates.

21. The salient parts of the CCPG as relevant to this appeal, without reproducing them in full, are as follows:

22. Design Quality Principle 1 – Context.

23. Design Quality Principle 2 – Built form.

24. Design Quality Principle 5 – Landscape.

25. 3.2 Local character, streetscape and the public domain interface.

26. 3.3 Building orientation, envelope, building design and accessibility.

27. 3.4 Landscaping.

28. The relevant parts of the HDCP, without reproducing them in full, are as follows:

29. Residential.

30. Traffic, access, street design and parking.

Evidence

19. The planners agree on the following:

20. The existing character is predominately residential comprising dwellings and townhouses (except the subject site). The built forms vary in scale between 1-2 storey, with most adopting pitched roofs and materials of brickwork and render or cladding.

21. Newer development is larger than the modest sized cottage dwellings, demonstrated by 641 George Street and 1 Woods Road.

22. The locality features open landscaped areas from the width of the road reserve.

23. The existing development on the site does not make a positive contribution due to its concrete/hardstand presentation and limited landscaping.

24. The proposal adopts residential elements in relation to the pitched roof, brickwork, cladding and articulated façades.

25. The proposal complies with the setbacks, height and FSR controls. There are no landscaping or deep soil controls. The proposed front setback landscaping is a positive contribution to the character relative to the existing circumstances.

26. The design of the first floor provides privacy and acoustic barriers to the adjoining property, as the play area is surrounded by a U-shaped first floor. Acoustic barriers to the rear with perspex/glass will provide privacy and acoustic measures to the rear neighbour.

27. The size of the basement is driven by the number of car spaces needed to service the number of child care spaces proposed. The basement is setback around 1.1m-1.2m from the side boundaries and 3.49m-4.08m from the rear boundary.

28. Ms Kashfi for Council says that the proposal incorporates some elements of the residential character of the locality, but these are largely cosmetic and do not mitigate the dominant institutional scale of the building. The details are not the issue, it is the overall bulk, massing and scale of the building. The physical elements of the reduced deep soil area, basement excavation and elevated first floor outdoor play area do not align with the established character of George Street. The proposed building and basement cover the majority of the site, with minimal landscaping and no opportunities for meaningful canopy trees. Landscaping and landscaping transitions between built forms is a key feature of the character of George Street. The landscaping in the front and rear setbacks do not overcome the loss of deep soil zones across the site. Maintenance of the landscaping is also of concern between the fence lines.

29. Ms Kashfi disagrees that the proposal is compatible with the emerging character of the locality. Newer examples are isolated and these examples are primarily residential, single storey, provide landscaped front setbacks and are located on larger lots. The childcare centre at 691 George Street is the most relevant comparator. Situated on a larger site, that development has been designed to appear as residential with at grade parking and ground floor play areas for 54 places. The continued character of George Street reinforces the existing character of low scale, residential development.

30. Ms Kashfi’s evidence is that the proposal is an overdevelopment of the site, with the proposed number of children necessitating visually dominant and uncharacteristic new elements including the basement, elevated play space and reduced deep soil areas. The proposed first floor play space introduces elevated noise sources above fence height. A smaller centre would allow for play areas to be located on the ground floor as anticipated by the CCPG.

31. Mr Wood for Isaiah says that the proposal is compatible with the locality and removes an existing light industrial development that is not compatible with the R2 zone. The existing development includes extensive areas of hardstand, limited landscaping and metal sheds that are alien to the existing residential character. The redevelopment for a permissible type of development that will make a positive contribution is an important consideration.

32. Mr Wood’s evidence is that the proposal is compatible with the character of the streetscape (relying on Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture)) and that the proposal is consistent with all of the built form planning controls. Permissible non-residential uses such as child care centres, neighbourhood shops, places of public worship, hospitals (including veterinary hospitals), and tourist and visitor accommodation all have certain typologies that correspond to their use.

33. The variety of materials with brickwork on the ground floor and cladding on the first floor breaks up the building. The proposal is also physically articulated along the south-west and north-eastern elevations and the first floor is stepped. Whilst it is not a relevant control, the proposal is largely compliant with the building height plane (BHP) that applies to new dwellings, that seeks to set back upper elements to reduce bulk. The only aspects of the proposal that breaches the BHP are the eaves and a small part of the external wall for the lift portion. Further, as a result of the proposal, there is an overall reduction in the amount of structures on site as viewed from adjoining properties.

34. Mr Wood’s evidence is that the proposal is compatible with the emerging character of larger two storey built forms along George Street and Woods Road (as opposed to the modest cottages). As would be anticipated, the newer buildings in the locality are larger with greater bulk and scale. The existing smaller dwellings will likely slowly transition to larger dwellings or dual occupancies over time.

35. Mr Wood’s evidence is that without landscaping and deep soil controls, the desired landscaping is regulated by the applicable setbacks. The proposal complies with the required setbacks and therefore provides adequate landscaping. The adjoining built forms provide limited landscaping due to the placement of their built form, driveways and ancillary structures. Landscaping along boundaries is not characteristic in the area. The rear setback provides a landscaped zone and the substantial existing trees along the southern boundary will be retained.

36. Mr Wood’s evidence about the first floor play area is that control C5 of the CCPG provides an opportunity to incorporate upper level play areas where good design solutions can be achieved. Here, the U configuration of the outdoor play area surrounded by built form means that the area will not be readily perceived from the street or surrounding properties except the rear. There are no visual impacts from the acoustic barriers. There are no other adverse impacts such as solar access, visual, privacy or acoustic from the location of the play area due to its design.

Submissions

29. Ms Reid for Isaiah submits that the proposal will remove a non-conforming use and is proposed to be replaced with a permissible use, which is in the public interest and consistent with the objectives of the zone. The planning experts agree that there are no privacy or bulk impacts to the neighbouring properties and that the replacement of older stock with new development will increase the size of dwellings as seen in newer development that has occurred. There is currently a hardstand carpark facing the street, which will be replaced with basement carparking and landscaping. The proposal is not the same as other small dwellings but has taken cues from existing development in the street including the pitched roofs, building breaks and articulation.

30. Mr Harker for Council submits that the most important objectives of the zone to have regard to relate to the compatibility with the character of the living area and that development has a domestic scale. Domestic scale is undefined but focuses of the existing character. The CCPG also provides guidance on responding to the existing character of the local area in R2 zones. The required setbacks in the HDCP, including for internal lots, assist in determining a domestic scale.

Consideration and findings

31. I accept and prefer Mr Wood’s evidence that the proposal is compatible with the local character and streetscape. I accept that compatibility does not mean sameness, that the proposal is in harmony with the streetscape and that the proposal has minimised its impacts on surrounding development (Project Venture at [22]-[31]).

32. Whilst I agree that different types of uses have different typology characteristics and floor plate needs, in this context regard needs to be had to a number of unique and specific objectives in the zone. The HLEP’s objectives for the R2 zone are clear that a residential built form character is to prevail, generally irrespective of the type of use. The objectives seek to protect the traditional residential character of streetscapes, ensure that new development retains and enhances that character and to enable other uses only if they are compatible with the character of the ‘living area’ and have a domestic scale.

33. I accept that the proposal has struck the right balance between meeting the needs of its use and presenting as a large but still domestic scale two storey dwelling in the streetscape. I firstly consider that the relevant visual catchment should be contained to the R2 Low Density zoned parts of George Street, given that the street continues over a significant distance. I accept Ms Kashfi’s evidence that the proposal will be larger than most of the existing developments, particular several blocks along George Street which still feature single storey dwellings with large landscaped front setbacks. But this is not the character for the entirety of the streetscape, and I accept Mr Wood’s evidence that the streetscape has a mixed character with larger two storey built forms and sites with a large portion of hardstand area. This mixed character is more evident directly adjoining the site, which all have a number of dwellings or ancillary structures on site with hardstand areas on similar sized lots.

34. I accept that the proposed two storey development with a first floor setback of 15m from the rear and approximately 23m from the front boundary is compatible with the existing two storey dwellings in the streetscape as well as the future character as sought by the HDCP. This is demonstrated through its compliant setbacks and a small variation to the BHP that applies to dwellings. As viewed from the streetscape and adjoining dwellings, the proposal has incorporated pitched roof elements and materials that are present along George Street. There are some aspects of the proposal that do not reflect a usual dwelling design, such as the presentation in the middle of the façade and U-shaped first floor. These are reflective of the proposed use’s typology and do not overly distort the presentation as a dwelling. I accept that the overall scale and incorporated design elements that reflect the domestic scale of the streetscape are the dominant features and the proposal will exist in harmony with the existing character (as also sought by the CCPG).

35. I accept that the proposal has minimised its physical impacts on adjoining properties through its design, privacy measures through perspex acoustic screening, the placement of windows and massing of the proposal. Due to the acoustic measures adopted, there is no acoustic evidence of unreasonable noise during operation, and the child care centre will be closed on weeknights and weekends, where the neighbours will enjoy no noise from the proposal.

36. Consistent with Control C5 of the CCPG, a first floor play area should be allowed as the proposal exhibits a ‘good design solution’. The design of the first floor, where the built form is placed in a U-shape around the first floor play area without being excessive in size is a good design solution. The built form provides a visual and acoustic barrier to adjoining development and presents as a two storey dwelling. The only neighbour who will acutely perceive the U-shaped element is the rear neighbour, where tree canopy will shield some of the built form from their rear private open space.

37. The introduction of a new element into the streetscape, in this case the basement, is not necessarily incompatible because it is new and is dependent on its design. The HDCP contains controls (‘rules’) for basements in residential zones, which are not offended by the proposal. I accept Mr Wood’s evidence that the basement primarily presents as a driveway with a similar amount of landscaping that is present at other developments in the streetscape. Varying degrees of either hardstands area or wide driveways currently exist along George Street. 691 George Street presents a substantial at grade car park presentation to the street, with a built form located at the rear. These are similar elements to how the proposal will present to the streetscape. The introduction of a basement from a similarly designed driveway as those in the locality is not incompatible with the character. Control C5 of the CCPG seeks to integrate car parking into the building and provide landscaping, which this proposal does. I accept Mr Wood’s evidence that the proposal will have a compatible and better presentation than some of the examples in the street through the undergrounding of car parking and the proposed landscaping.

38. I do not accept that the streetscape contains landscaped boundary setbacks with tree canopy as a dominant feature. I concur with Mr Wood’s evidence and as observed at the site view, a number of properties did not provide canopy trees in the side setback. In any event, the proposal will retain substantial trees along the southern side setback, provides deep soil zones to the rear and proposes other landscaped areas in the front and side setbacks. I accept that as the applicable planning controls do not have any numerical landscaping or deep soil controls, and that the setback controls are met, that the proposed landscaping is acceptable as sought by the CCPG. In terms of maintenance, I accept that there is sufficient space to allow for maintenance of all landscaping on the basis of the Landscaping Plan prepared by ATC Landscape Architects Revision F.

39. For these reasons, I accept that the proposed development is compatible with the local area and streetscape and consistent with the objectives of the zone. I therefore also consider that the proposal is in the public interest, as that contention related to character. To the extent that precedence was pleaded, I accept that all applications need to be assessed on their own merits and circumstances.

Public Submissions

40. The original development application made to Council was notified between 22 August 2024 to 6 September 2024. One submission was received and oral evidence was given at the start of the hearing. I have considered the concerns raised and I find that whilst genuinely made, these concerns do not warrant refusal of the DA.

41. Traffic impacts, sight lines and accidents – The proposal was considered by traffic engineering experts and TfNSW who raised no concerns with the proposal subject to certain works being undertaken. The Applicant has agreed to these works, which form part of the conditions of consent.

42. Impacts on businesses – Potential impacts on other child care centres are not able to be considered as these are expressly set aside by the planning controls in ss 3.26 and 3.27 of SEPP TI.

43. Noise pollution from the number of children, parents and staff – The proposal is accompanied by a Noise Impact Assessment Report prepared by Rodney Stevens Acoustics dated 26 August 2025. The recommendations of the report have been adopted, which include acoustic measures to reduce noise impacts to an allowable level. I would also note that adjoining neighbours will benefit from no noise coming from the development in the evenings or the weekends when the child care centre will be closed.

44. Privacy impacts and overlooking from the two storey building – Two storey buildings are common in residential areas. The proposal has included privacy measures such as highlight windows and windows with sill heights of 1.6m to ensure reasonable privacy is maintained.

45. Impacts on residential property value which will adjoin a child care centre – this is not a relevant planning consideration.

46. Structural concerns from the proposed basement and excavation – The conditions of consent include dilapidation reports prior to construction. The proposed works are setback from the boundaries.

47. Drainage issues from the proposal – the Stormwater Plans prepared by SGC Consultants Revision D demonstrate the discharge of stormwater to the street. The proposal includes an on-site detention tank, rainwater garden and rainwater tank which will ensure that stormwater is effectively captured and managed on site.

48. Overshadowing impacts on the garden and future solar panels – The overshadowing diagrams prepared by Baini Design Revision E demonstrate that all adjoining neighbours retain reasonable solar access as would be anticipated for a two storey development and orientation of the site.

49. Scale and streetscape character – I have addressed this issue in detail further above.

50. Tree removal impacts on home and wildlife – Significant trees along the southern boundary will be retained. There is no evidence that the limited removal of trees and vegetation being removed will have any impact on wildlife and the proposal has incorporated new landscaping.

51. Limited community engagement – The proposal has been notified as required by Council’s Community Participation Plan.

Conditions of consent

41. The parties agreed on all conditions of consent, including privacy measures and a condition raised by the Court in relation to natural features and vegetation within the first floor play area as sought by control 4.10 of the CCPG. I am satisfied that all of the proposed conditions of consent are relevant, capture the agreements of the experts and are lawful.

Preconditions and s 4.15(1) of the EPA Act

42. The parties did not raise any jurisdictional issues outside of those I have previously dealt with. I have considered the material in the Class 1 application, including the Statement of Environmental Effects prepared by Think Planners dated 4 March 2024 and the Development Assessment Report dated 1 October 2024. I am satisfied that the relevant jurisdictional provisions have been met.

43. I have considered s 4.6 of State Environment Planning Policy (Resilience and Hazards) 2021 (SEPP RH) and the Remedial Action Plan prepared by GCA dated 26 August 2025 (RAP). The recommendations have been included in the conditions of consent at Annexure A. I am satisfied that s 4.6 of SEPP RH has been addressed.

44. In relation to SEPP TI, I have considered and find that ss 3.23, 3.26 and 3.27 are met on the basis of the SEE, Architectural Plans prepared by Baini Design Revision E (Architectural Plans) and the planning JER. The architectural plans demonstrate that the proposed FSR is 0.43:1, below the maximum 0.5:1 permitted by s 3.25. I have considered the CCPG and relevant regulations and find that the evidence demonstrates that the amended DA is consistent with the provisions. The site fronts a classified road and TfNSW have provided concurrence, subject to conditions that have been adopted (SEPP RH, s 2.119). Endeavour Energy raised no issues, subject to conditions that have been adopted (SEPP RH, s 2.48).

45. In relation to the HLEP, I have had regard to the objectives of the zone as previously discussed. The proposed use for a centre-based child care centre is permissible in the zone. The amended DA is below the maximum permitted building height of 10m as evidenced on the architectural plans. The proposed excavation is adequately addressed by the proposal through the RAP and Construction and Waste Management Plan prepared by Lotus 8 Group dated 17 December 2023 and I consider that the provisions of cl 6.2(3) have been met.

46. Owner’s consent accompanied the Class 1 appeal.

47. Most of the limited relevant provisions of the HDCP have been addressed further above. The proposed car parking seeks a variation to the HDCP. I accept and adopt the evidence of the traffic engineers that sufficient car parking is provided that will meet the needs of the centre without impacting on adjoining neighbours or the efficiency of George Street.

Conclusion

48. It is acknowledged that many of the contentions were resolved through amendments to the proposal prior to the hearing. Having considered the evidence and submissions, I find that the proposed development will be compatible with the domestic scale and residential character of the existing area through its incorporation of design cues from the streetscape and high compliance with the relevant planning controls. I therefore conclude that development consent should be granted, subject to conditions of consent.

Orders

49. The Court orders that:

50. The appeal is upheld.

51. Development application DA0304/24, as amended, for the demolition of existing structures, removal of identified trees and vegetation and construction of a two storey 100 place centre-based child care facility with basement car parking at 635 George Street, South Windsor, is determined by the grant of development consent subject to the conditions at Annexure A.

52. The exhibits are returned, except for exhibits A, B, C and 4.

S Porter

Commissioner of the Court

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Annexure A (637 KB, pdf)