Kirovski v Georges River Council [2025] NSWLEC 1325 | Case summary | Zoe

NSWNSWLEC

Kirovski v Georges River Council

[2025] NSWLEC 1325

Land and Environment Court (NSW)|2025-05-09|Before: Porter C

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General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-05-09

Before

Porter C

Catchwords

DEVELOPMENT APPEAL – multi storey - centre based child care facility
– car parking – car stacker – landscaping
- design excellence
– insufficient information

Source

Original judgment source is linked above.

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Catchwords

DEVELOPMENT APPEAL – multi storey - centre based child care facility– car parking – car stacker – landscaping- design excellence– insufficient information

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Kirovski v Georges River Council [2025] NSWLEC 1325

Hearing dates: 9-11 December 2024 and 13 February 2025

Date of orders: 09 May 2025

Decision date: 09 May 2025

Jurisdiction: Class 1

Before: Porter C

Decision: The Court orders:
(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application, as agreed or assessed.
(2) The appeal is dismissed.
(3) Development application DA-2023/0468 for demolition of the existing structures and construction of a four storey centre based child care centre at 8 Gover Street, Peakhurst is determined by refusal of consent.
(4) The exhibits are returned except for A, B and 1.

Catchwords: DEVELOPMENT APPEAL – multi storey - centre based child care facility – car parking – car stacker – landscaping - design excellence – insufficient information

Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7, 8.15
Land and Environmental Court Act 1979, s 39
Environmental Planning and Assessment Regulation 2021, 38 Georges River Local Environmental Plan 2021, cll 6.10, 6.12

Mr Kenworthy for Council says that the lack of trees along the eastern and western side setbacks do not ameliorate the scale of the proposal. Of the four trees proposed in the rear setback, these are provided within an above ground OSD on stormwater piping and would be restricted in growth and lifespan. He says that the side setback areas do not provide any trees, and are mostly pathways for around half of the side setback areas. Mr Kenworthy’s evidence is that the planters along the elevations do not meet cl 6.12(4) as there are no trees proposed in the side setbacks, the on-podium planters are limited in depth that can only accommodate shrubs and that do not soften the scale of the development. Of the plantings proposed along a small area along the side setbacks, he says that these trees are hedge-like and difficult to access.
Mr Kenworthy says that the lack of at grade play areas are not in accordance with the CCPG, 4.10 natural environment. The proposed trees and OSD result in an area that cannot be used for an at grade play space.
Mr Kenworthy’s evidence is that the revised maintenance schedule does not provide any access to the western or rear boundary. Mr Kenworthy was sceptical about the ability to implement the maintenance schedule, which included a requirement for anchor points for rope access to maintain some of the landscaping but was obstructed by landscaping and acoustic/BCA barriers. He identified other areas of conflicting information in the landscaping plans and the maintenance schedule, including mulched areas in landscaping, inability to access the rear plantings, and an inability to access some planters for maintenance due to the separate 1.39m acoustic fence and 1.8m BCA barrier.
Mr Ly for Kirovski says that there are limited deep soil opportunities along the side setback which do not allow for tree planting that would soften the building. He says that trees, shrubs and ground covers are proposed in the front and rear setbacks. Mr Ly’s evidence is that a vertical wall and the tall shrubs in planter boxes have been provided along the elevations to provide a green buffer between developments with deep planter boxes that achieve cl 6.12(4) of the GRLEP. Mr Ly says that tree plantings along the side setback may impact adjoining properties and limit the extent of the proposed basement and building.
My Ly noted that there were no requirements for at-grade outdoor place areas.
Mr Ly conceded in oral evidence that the location of the stormwater pipes in the OSD should be moved, that there was no gate to the provide access to the rear area, and that further information relating to maintenance of some of the planters that were separated by the 1.8m BCA barrier was required.

The concerns raised relate to sometimes differing landscaping controls in the GRLEP, GRDCP and CCPG. Clause 6.12 of the GRLEP is a precondition to the grant of consent. The landscaping issues relevant to this clause cannot be deferred to conditions of consent and must be satisfied prior to the grant of consent. I firstly accept that the cl 6.12(5)(f) is met, in that 10% of the site area is landscaped.
I accept Mr Kenworth’s evidence that the lack of landscaping and lack of relatively scaled trees within the side setbacks is inadequate. Clause 6.12(4)(a) of the GRLEP requires that plantings be of a scale and density commensurate with the height and scale of buildings. I accept that the proposed planter box shrubs are not of an adequate scale that would soften the scale of the proposed four-five storey built form or enhance the streetscape. This is particularly important as the site currently adjoins low density development. I find that the retention and proposed trees in the front setback, street verge and rear setback are not enough to compensate for the lack of tree canopy or larger plantings along the side setbacks.
I do not accept that trees or larger plantings cannot or should not be located in the side setbacks. The site is zoned R4 High Density Residential, which generally contemplates separation between most permissible buildings, that is often used for landscaping. Trees or plantings of a commensurate scale to a proposed development along boundaries between the types of development permitted within the zone is specifically sought by cl 6.12(4)(a) and separately supported by C17 of the CCPG and 3.3(1)(v),(vi), (xiii) and (2) of the Georges River Development Control Plan 2021 (GRDCP). Whilst the GRDCP allows a minimum side setback of 1.2m for the first two storeys, that is not an impediment to designing a building that allows sufficient areas for plantings along the side setback that are commensurate with the scale of the building (also being one of the preconditions to the grant of consent).
Control 3.3(1)(xi) of the GRDCP requires consideration of the future maintenance requirements of landscaped areas. Outside of the proposed water irrigation system, the ability of the planter boxes to be maintained on the outside of the BCA and acoustic barriers is unknown. This was accepted by both experts. The use of anchors along a building is not novel, but the use of them on this building with various BCA and acoustic barriers has not been demonstrated. The proposed condition to combine the barriers/fences has not, in my view, overcome the issue.
As submitted by Mr Staunton, the onus is on the Applicant to demonstrate that consent should be granted. I accept the evidence of Mr Kenworthy and concessions from Mr Ly and find that the amended DA is deficient of information to ensure that the proposed landscaping can be maintained. The ability to maintain the rear areas and some of the planter box landscaping on the outside of the acoustic barrier is unknown and I accept that the access concerns would likely mean some of the landscaping would not survive. The inadequate maintenance plan is contrary to 3.3(xi) of the GRDCP and would not achieve the objectives, as a likely consequence of an inability to maintain important parts of the landscaping would be the loss of it.
For the reasons I have set out above, I am not satisfied that sub-cl 6.12(4)(a) of the GRLEP, Principle 5 and 3.4 Landscaping C17 of the CCPG and 3.3 Landscaping of the GRDCP have been met. As cl 6.12 of the GRLEP is a precondition to the grant of consent, there is no power to grant consent.
Separately, for the same reasons given in these findings, I also accept that the inadequate landscaping would have contributed to an adverse finding that the development does not exhibit design excellence pursuant to cl 6.10(4) and having regard to subclause 6.10(5)(d)(xi). However, regard is to be had to each provision of the framework of cl 6.10. As there is no power to grant consent, there is little utility in conducting that consideration.
I also note that the landscape architects and planners provided evidence about if the development incorporated a natural environment as required by Regulation 113 of the Education and Care Services National Regulations 2011. In my view, the design of the development was unclear on the extent of natural elements in the proposed play areas apart from sand pits. The natural environment regulation applies irrespective of their location on ground level (acknowledging ground level as an obvious and prime location for outdoor spaces) or balcony/terrace play areas. As the proposal was not for a simulated outdoor environment, the extent of any natural environment in the proposed play areas was unclear.

The experts agreed that the proposed staffing of 14 (10 full time educators, 2 relief staff, one cook and one supervisor) require 7 staff car spaces under the GRDCP. 6 staff car spaces are proposed. Mr Corbett says that one of the proposed car spaces is inadequate and therefore, only 5 staff spaces are proposed.
The experts agreed that 11 visitor spaces are required by the GRDCP, with 6 proposed.
Both experts agree in the Traffic JER that the previous Plan of Management with an example staff roster and parking arrangements was unworkable, as some of the staff working times did not align with being able to move their car from the allocated car stacker space.
Mr Steal, traffic expert for Kirovski, undertook a first principles approach to demonstrate that the proposed car parking met the objectives of 3.13 of the GRDCP. Surveys of comparable child care centres were undertaken, including for nearby 10 Lawrence Street, Peakhurst that had a similar number of child care places. Mr Steal’s evidence is that the surveys of Lawrence Street showed a peak visitor demand of 5-6 spaces per hour (for 98th percentile and 98.3rd percentile cases). The proposed 6 visitor spaces for the proposed development of a similar size therefore meets the objective of the control as adequate car parking to meet demand will be provided. All visitor parking will therefore occur on site, not on the street.
Mr Steal agrees with Mr Corbett’s approach to peak parking accumulation, also using the Lawrence Street child care centre, but comes to a different conclusion. Mr Steal says there is only a one minute period in the week where eight visitor vehicles sought to use the child care centre. Further, over the week of surveys, the accumulation of over 6 visitor vehicles lasted for four minutes. Mr Steal’s evidence is that using an accumulation approach, the 98th percentile accumulation modelling generated a demand of 4 visitor vehicles per hour in peak periods. Mr Steal says that it is unreasonable to provide for parking above the 98th percentile as this is a rare occurrence and generally resolved through a short wait in the car park by visitors.
Mr Steal says that the Wattle Grove child care centre considered by Mr Corbett is not comparable. Wattle Grove is located in a low density zone and surrounded by low density development. This site is high density and accommodates a higher population, meaning that more users will walk to the proposed child care centre.
Regarding on street parking, Mr Steal says that the transitory nature of visitor parking will mean that on street parking for residents will not be impacted. Staff parking on the street (those who are not allocated a car space in the development) will be directed to park near the reserve which contains a number of available car spaces.
Mr Steal’s evidence relating to staff car space 6, is that the space will be allocated for a small car only. Given it is a staff car space, Mr Steal says that only the driver’s door will need to be used and the required 300mm clearance width to the wall does not inhabit its effective use as a car space as demonstrated by swept path analysis in the Traffic JER.
Mr Steal’s evidence about the car stacker systems is that the system would take 1.5-2 minutes at the longest to complete the car park. Mr Steal’s understanding was that the design of the car park included consideration of the car stackers and their associated structures, but did not elaborate on what those were. It was agreed that general specifications through a brochure were included in the amended DA.
Mr Steal’s evidence regarding two way passing of vehicles at the driveway, along the vehicle ramp and within the basement is that further swept path testing provided in the Traffic JER demonstrates safe passing movements and vehicles passing in the driveway. Mr Steal says that adequate sight distances are provided along Gover Street and there is no Australian Standard for simultaneous inbound/outbound passing at the driveway.
Mr Steal mostly agrees with Mr Corbett’s evidence that the now relied on PoM example roster for use of the stackers partly did not work. Mr Steal’s evidence is that the roster is indicative only.
Mr Steal’s evidence regarding the proposed waste collection is that a low clearance height vehicle has been selected, with a maximum height of 2.08m that can access the basement. Mr Steal says that other projects with a similar ramp grade have been granted development consent. The specification sheet indicates an example of the maximum transition gradients, not the absolute maximum gradient.
Mr Corbett, traffic expert for Council, says that the proposed car parking is deficient for the proposed use. Mr Corbett says that the traffic surveys relied on by Mr Streel demonstrate a peak visitor parking demand of 8 car spaces for Lawrence Street. Mr Corbett’s evidence is that a comparison of the Lawrence Street data against the RMS Validation Trip Generation Surveys, Child Care Centres Analysis Report dated September 2015 (RMS Analysis Report) would support a peak visitor demand equating to 0.17 car spaces per child. This would equate to 8 visitor spaces at 10 Lawrence for 47 children.
The proposed child care centre in the Traffic JER was for 52 children. Mr Corbett’s evidence is that using the same methodology as the RMS Analysis Report, this would result in an expected peak demand of 9 visitor spaces. Mr Corbett also considered the RMS Validation Trip Generation Surveys, Child Care Centres, Data Report dated August 2015 (RMS Data Report). Mr Corbett’s says that one of the assessed child care centres at Wattle Grove is comparable given its location in a residential area, in south-west Sydney and capacity for 45 children. The RMS Data Report found Wattle Grove generated a peak visitor parking demand for 10 car spaces, equating to a visitor parking rate of 0.22 spaces per child. The proposal, when assessed at the previous 52 children, would result in an expected demand of 11.4 visitor car spaces.
With consideration of both methods, Mr Corbett’s evidence is that visitor car parking demand would be 10 car spaces. The proposed six visitor spaces is a 40% deficiency, in addition to the two staff spaces. The result of which could lead to:
Multiple cars entering the basement seeking unavailable car parking and causing gridlock or reversing up the basement ramp to get out of the site with associated safety concerns.
Parking on-street along Gover Street to drop-off/pick up children. Gover Street is constrained due to its narrow length, curved alignment and poor sight lines on a street which currently has high parking demand. Mr Corbett agreed in oral evidence that the parts of the day when the child care centre would be used provided more on-street parking than other times.
Mr Corbett’s evidence is that proposed staff car space 6 cannot be used. Even when labelled as a small car space, the car space does not demonstrate the required 0.3m clearance under AS 2890.1 for the vehicle, side mirrors and opening of the car doors. Mr Corbett says that this space cannot be counted as a small car space, therefore the development is deficient by 2 staff spaces and 5 visitor spaces with associated impacts to on-street car parking.
Mr Corbett’s evidence regarding the ability of vehicles to safely exit and pass on Gover Street is that the high demand for on-street parking, narrow street width (requiring cars to pull into car spaces to allow cars to pass) and lack of proposed off-street parking will create difficulties in cars passing, including at the entry of the proposed development. Mr Corbett agrees that there is no requirement for access driveway movements, however, has also provided swept paths in the Traffic JER demonstrating that the other swept paths not provided by Mr Steal show that left in, right out car movements cannot be achieved, potentially causing reversing on the ramp.
Mr Corbett’s evidence on the queued vehicle and basement ramp passing, is that the ramp gradient for the queued vehicle is non-compliant by nearly double. If the incoming vehicle stopped approximately 300mm further on the ramp, the exiting vehicle could not pass, resulting in unsafe reversing up the ramp to allow the exiting vehicle to pass.
Regarding the proposed car stacker system, Mr Corbett’s evidence is that insufficient information has been provided to demonstrate if the stackers can physically fit into the basement. His oral evidence is that the DA documentation did not show that two car stacker systems were proposed, and was only clarified in oral evidence by Mr Steal. Mr Corbett reiterated his concerns about the amended DA demonstrating how the basement can physically accommodate the stackers, associated structures and achieve a compliant parking space width.
In both the Traffic JER and oral evidence about the previous and current version of the PoM, Mr Corbett detailed numerous occasions where the example roster did not work for entering or exiting staff. Examples included at 1pm, 1.10pm, 1.15pm, 1.25pm, 2pm, 2.10pm, 2.20pm, as the car stackers would be full or partially full, so that the stacker could not be operated. This was mostly caused by relief staff who were allocated car spaces on top of the two stackers.
Mr Corbett’s evidence was that the Applicant had not shown how the two sets of car stackers could operate within the proposed hours and the required number of staff. He says that this results in an effective reduction of proposed car parking spaces.
Mr Corbett’s concerns about the use and safety of the proposed stacker system and security fancy fence is best summarised from part of his oral evidence:

Before considering if the proposed flexibility to the car parking rate has merit, it needs to be demonstrated that the number of proposed car parking spaces are able to be used.
During the hearing the Applicant was granted leave to rely on an amended PoM which included a revised sample parking roster. I accept that the purpose of the parking roster is to demonstrate how the car stackers can operate with the needs of staff and visitors (being parents/care givers). Detailed by Mr Corbett’s oral evidence, I accept that the parking roster has not demonstrated that the car stackers can operate to service the needs of staff and cannot be relied on as car parking. Whilst the Applicant submits that the timetable is an example only, the onus is on the Applicant to demonstrate in the example that the proposed timetable works (see [68]). Kirovski has been unable to demonstrate that, despite being granted leave during the hearing to amend their PoM.
I accept Mr Corbett’s evidence that the reliance on car stackers lacks sufficient detail, is potentially unsafe and is unworkable in this child care centre. I accept Mr Staunton’s submissions and find that there is very little detail provided about how the two car stackers, the fancy fence barrier and the safety laser (that if tripped, would also stop the moving stackers) would all operate together, beyond line indications on the architectural plans and generic specification brochures for the stackers. From the oral evidence, it was unclear how the laser aspect operated. Nothing in the amended DA documentation indicated how the laser or fancy fence would operate.
As best as I could understand from the oral evidence and submissions, if the laser was triggered by a runaway child, this would cause the car stackers to stop moving. However, it would not stop the child from reaching the car stacker in whatever position it might happen to be in from lifting or lowering a car. Acknowledging that the fancy fence would be up and restrict some access, and that this possibility might be remote given the limited hours of its use and the indicative roster showing that three staff members will use the system at 7am, it is still an unacceptable potential safety consequence in a child centre. To the extent that the PoM states that the stackers are not be used when children are in the basement, this would be very difficult to enforce if parents/children were already in the basement or tried to enter the basement around 7am, and the total time for the staff to load their cars into the stacker takes 1.5-2 minutes to complete. Even a small likelihood of this occurring is unacceptable in a child care centre development.
The need to rely on a detailed staff car parking timetable, car stackers, laser and a fancy fence are clear indicators that the site is unsuitable for the extent of development proposed.
I accept Mr Corbett’s evidence that safe vehicle passing in the basement has not been demonstrated. The swept paths showing a non-compliant queuing area gradient and margin of error of approximately 300mm has not adequately demonstrated safe vehicle passing and I accept would likely lead to unsafe reversing up the basement ramp. I also accept Mr Corbett’s evidence about excluding the small car space and find that the non-compliant small car space is too small to be safely used. The Applicant’s narrowness of only using the driver’s side of designated small vehicle space overly constrains the useability of the car space and I find that it should not be included as a car space.
Accordingly, I accept Mr Corbett’s evidence and Mr Staunton’s submissions, and find that the PoM, car stackers and basement design do not demonstrate that all proposed car parking spaces are useable and safe. I find that the deficient car parking does not adequately service the proposed use, would be unsafe, and would result in unreasonable on-street car parking impacts on a narrow street experiencing high parking demand. The proposal is contrary to 3.13, objectives (a), (b) and (c) and control (1) and (3) of the GRDCP.
Lastly and separate from the above, in relation to providing adequate access for waste collection, I accept Mr Corbett’s evidence. The proposed waste access is designed for a specific manufacturer’s vehicle and not for commonly utilised waste collection trucks, of which some can be SRV as defined in AS 2890.2. The reliance on a narrow, specific type of waste truck is unreliable over the life of the development. I also accept Mr Corbett’s evidence that the specific requirements of the nominated waste vehicle are likely to be inconsistent with the proposed ramp grade and the nominated truck may not be able to use the ramp. The evidence in front of the Court indicates that the proposed ramp grade exceeds the maximum grade permitted for the track, as provided by Mr Corbett in the Traffic JER. I find that adequate ongoing waste collection has not been demonstrated by Kirovski.
For completeness, had the proposed car parking spaces been workable, I would have accepted the first principles approach adopted by the experts as a way of meeting the objectives of control 3.13 of the GRDCP for visitor car parking. Mr Corbett’s approach based on the correlation between the RMS Analysis Report and RMS Data Report would have been preferred, with the 50 proposed child care places generating 10 car spaces (ultimately generally consistent with the GRDCP requirement). Given the availability of parking at the nearby reserve, I would have accepted Mr Steal’s evidence that the shortfall of 1-2 staff car parking spaces was acceptable.

Kirovski v Georges River Council

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

JUDGMENT

Amended Application

The site and context

Key Issues

Expert Evidence

Public Submissions

Landscaping

Evidence

Submissions

Consideration and findings

Parking and the stackers

Evidence

Consideration and Findings

Conclusion

Orders

S Porter

Commissioner of the Court

Parties

Legislation Cited (5)