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[2026] NSWLEC 1016
General information, not legal advice.
Land and Environment Court (NSW)
2026-01-13
Kullen AC
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Medium Neutral Citation: Liskowski v The Bayside Council [2026] NSWLEC 1016
Hearing dates: 12 and 13 August and 5 September 2025
Date of orders: 13 January 2026
Decision date: 13 January 2026
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders:
(1) The appeal is dismissed.
(2) Development consent for development application DA-2022/407 as amended for the demolition of existing structures and the construction of a two storey child care facility with capacity for 58 children and 10 staff, one basement level with pram storage, internal lift, mechanical plant room, bicycle parking and parking for 10 cars; five for staff, and five for visitors/drop off and pick-up, including one for accessible drop off and pick-up on the land at 668 Rocky Point Road, Sans Souci, NSW 2219 is refused.
(3) All exhibits are returned except for Exhibits A and O.
Catchwords: DEVELOPMENT APPEAL – centre based child care facility – assessment of expert evidence on acoustic and air quality impacts – suitability of the site for the proposed development – orders
Legislation Cited: Children (Education and Care Services) National Law 2010 (NSW), ss 49, 301, 324 Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.48, 8.7 Water Management Act 2000 (NSW), s 90 Bayside Local Environmental Plan 2021, cll 2.2, 2.7, 4.3, 4.4, 6.1 Education and Care Services National Regulations 2011 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (Transport and Infrastructure) 2021, Chs 2, 3, ss 2.98, 2.99, 2.100, 2.119, 2.120, 2.121, 3.23
Cases Cited: Archian Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1546
Creative Drafting Services v City of Parramatta Council [2019] NSWLEC 1413
Eboli v Penrith City Council [2024] NSWLEC 1320
FSLA Property Holdings Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1455
PJM Group Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1170
Rupani v Ku-ring-gai Council [2024] NSWLEC 1569
Texts Cited: Adam Capon and Jackie Wright, “An Australian incremental guideline for particulate matter (PM2.5) to assist in development and planning decisions”, Public Health Research and Practice, 4 December 2019
Association of Australasian Acoustical Consultants, Guideline for Child Care Centre Acoustic Assessment Version 3.0, September 2020
Bayside Council, Engagement and Communications Strategy, November 2019
Department of Planning, Industry and Environment
Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021
NSW Department of Environment, Climate Change and Water, NSW Road Noise Policy, March 2011
NSW Government Department of Planning, Development Near Rail Corridors and Busy Roads - Interim Guideline, December 2008
Rockdale Development Control Plan 2011
Transport for NSW, Road Noise Criteria Guidelines, April 2025
Category: Principal judgment
Parties: L Liskowski (Applicant)
Bayside Council (Respondent)
Representation: Counsel:
H Grace (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Bartier Perry (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2023/426417
Publication restriction: No
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by Bayside Council of development application No DA-2022/407 (as amended on 4 April 2025) (the further amended DA) for the demolition of existing structures and the construction of a two storey child care facility with capacity for 58 children and 10 staff, one basement level with pram storage, internal lift, mechanical plant room, bicycle parking and parking for 10 cars; five for staff, and five for visitors/drop off and pick-up, including one for accessible drop off and pick-up on land at 668 Rocky Point Road, Sans Souci, NSW 2219 (the site).
The site is legally identified as Lot 2 in Deposited Plan 208673. The site’s primary address is its frontage of 17.02m to Rocky Point Road, with a sideage of 34.925m to Fontainebleu Avenue.
The final DA (refer to [16] below) proposes a child care centre providing for a total of 58 children – 30 children on the ground level and 28 children on the first level. This represents a reduction of 5 from the 63 children proposed in the original DA. The upper level caters for children aged 3-5 years.
The original DA for a child care facility with capacity for 63 children was lodged by the Applicant with the Respondent on 5 January 2023.
The original DA was notified by the Respondent to adjoining properties between 18 January 2023 and 1 February 2023. Four submissions were received by the Respondent during the notification period.
Pursuant to s 4.48 of the EPA Act the proposed development is integrated development. The Respondent advises in the amended Statement of Facts and Contentions (the amended SOFAC) filed with the Court on 2 May 2025 that Water NSW provided General Terms of Approval for a water supply works approval pursuant to s 90(2) of the Water Management Act 2000 (NSW) on 7 June 2023.
On 29 September 2023, the original DA was refused under delegated authority by the Respondent.
On 24 November 2023, the Applicant commenced proceedings in Class 1 of the Land and Environment Court’s jurisdiction appealing against the Respondent’s refusal of the development application.
On 31 January 2024, the Respondent filed the original Statement of Facts and Contentions (original SOFAC) with the Land and Environment Court.
On 12 November 2024 the Applicant was granted leave by the Court to rely upon an amended DA.
On 4 April 2025 the Applicant was granted leave by the Court to rely upon a further amended DA.
The Respondent advised that the further amended DA was notified in accordance with Bayside Council’s community participation plan, Engagement and Communications Strategy 2019.
The Court also directed the Respondent to file an Amended SOFAC by 24 April 2025, and that the experts in air quality, planning, acoustic, and landscaping issues confer on the amended development application and file joint expert reports by 13 June 2025. As stated in [6] above, the amended SOFAC was filed on 2 May 2025.
The hearing commenced with an on-site view. Three submitters attended the on-site view and made submissions to the Court.
The full suite of expert witness reports based on the further amended plans was filed with the Court between 17 June 2025 and 10 July 2025.
The Court granted leave for the DA to be amended on 5 September 2025 in accordance with the plans submitted by the Applicant as Exhibit O (the final DA).
The Respondent has advised that in relation to the final DA:
Business identification signage has been removed;
The final DA seeks consent to relocate the bus stop and telegraph pole on Fontainebleau Street;
The Updated Plan of Management nominates the proposed hours of operation are from 7:00am to 6:00pm Monday to Friday (excluding Saturday, Sunday and Public Holidays); and
Additional design features were adopted by the latest design to further ameliorate potential vehicle emissions within the indoor and outdoor play areas arising from the adjacent classified road (refer to [111]).
Draft Conditions of Consent were filed with the Court by the parties on 30 September 2025.
The Respondent described the site in the amended SOFAC. This description and the observations at the on-site view inform the following statements.
The site is zoned R2 – Low Density Residential pursuant to the provisions of the Bayside Local Environmental Plan 2021 (the LEP).
The site comprises one lot, legally described as Lot 2 DP 208673, otherwise known as 668 Rocky Point Road, Sans Souci.
The site has a total area of 775.53 m2 and is an irregular shaped lot situated on the north-east junction of Rocky Point Road and Fontainebleau Street.
The site has a 17.02m western frontage to Rocky Point Road, a 5.28m splay on the south-west corner boundary, a southern boundary of 34.92m to Fontainebleau Street, a shared northern boundary of 39.185m and a shared eastern boundary of 20.69m to 1 Fontainebleau Street.
The site has an approximately 1.6m fall from west to east and an approximately 0.7m fall from north to south. The highest point on the site is the north-west corner.
The site contains a part single – part two storey residential dwelling with an attached double-bay garage at 668 Rocky Point Road. The site has a total of six trees with three being located at the front of the dwelling and three located at the rear of the dwelling. The site also contains a metal shed which is located adjacent to the south-east boundary. The lot benefits from existing vehicular access from Fontainebleau Street and a variable height masonry pier and infill fence skirts the Rocky Point Road and Fontainebleau Street frontages.
The amended SOFAC contains the following description of the locality:
Adjoining developments to the north and the east are detached two storey dwellings located at 666 Rocky Point Road and 1 Fontainebleau Street. Rocky Point Road forms the boundary between Bayside Council to the east and Georges River Council to the west;
Within the locality there is a mix of one storey and two storey residential buildings, however, the site is located a short distance from land within higher density residential zones, and there is an existing four storey walk-up residential flat building located on the opposite side of Rocky Point Road, at 670 to 672 Rocky Point Road to the south; and
Surrounding land contains a variety of development as a result of varying land use zones. Sites immediately surrounding the site are located within Zone R2 Low Density Residential pursuant to the provisions of the LEP. Land located south-west of the site includes R4 High Density Residential, E1 Local Centre and RE1 Public Recreation Zones. Land located further to the east of the site includes R3 Medium Density Residential zoning. Immediately adjacent to the west of the subject site, Rocky Point Road, lies within Zone SP2 Infrastructure and to the south-west of the site there is also land within Zone SP2 Infrastructure, with the purpose marked as Emergency Services Facilities.
At the commencement of the hearing, Mr Seton (for the Respondent) advised the Court that the only contentions remaining between the parties related to air quality and acoustic impacts from Rocky Point Road on the outdoor play areas located closest to the Rocky Point Road frontage of the site (and that only part of the outdoor play areas were identified as being affected).
Amended stormwater management plans had been provided to the Respondent by the Applicant the day before the commencement of the hearing, and Mr Seton raised the point that the Respondent would need time to review the revised stormwater management plans (these plans are part of the final DA), however any issues could be addressed through the conditions of consent.
The Court was assisted by expert evidence in the following disciplines:
Air quality Issues:
(a) Mr Ali Naghizadeh, on behalf of the Applicant, and Mr Aleks Todoroski, on behalf of the Respondent.
(a) Mr Stephen Gauld, on behalf of the Applicant, and Mr Richard Haydon, on behalf of the Respondent.
(a) Mr David Waghorn, on behalf of the Applicant, and Mr Scott McInnes, on behalf of the Respondent.
(a) Mr David Brett, on behalf of the Applicant, and Mr Greg Tesoriero, on behalf of the Respondent.
Rocky Point Road is a classified road under s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP). It was submitted by Mr Seton that s 2.119(1)(b) of the Transport SEPP is particularly relevant to the consideration of the final DA.
Section 2.119 of the Transport SEPP relates to development with frontage to a classified road and states that:
2.119 Development with frontage to classified road
(1) The objectives of this section are—
(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and
(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.
(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—
(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and
(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—
(i) the design of the vehicular access to the land, or
(ii) the emission of smoke or dust from the development, or
(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and
(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
Mr Seton submitted that s 2.119(1)(b) of the Transport SEPP is particularly relevant to the Court’s consideration of the final DA and that the Court would need to form an opinion pursuant to s 2.119(2)(c) of the Transport SEPP if the proposed development is appropriately sited or designed to ameliorate traffic noise or vehicle emissions.
Whether this requirement has been satisfied in the final DA was the focus of the arguments put forward to the Court by the acoustic and air quality experts called by the parties.
Chapter 3 of the Transport SEPP aims to facilitate the effective delivery of educational establishments and early care facilities across the State and provides a planning regime for educational establishments and early education and care facilities. Section 3.23 requires that 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 2021 (the Child Care Planning Guideline), in relation to the proposed development.
The Child Care Planning Guideline establishes the assessment framework to deliver consistent planning outcomes and design quality for centre-based child care facilities in NSW.
Part 2 of the Child Care Planning Guideline outlines design quality principles. Principle 6 of the Child Care Planning Guideline relates to amenity and states that:
Principle 6 - Amenity
“Good design positively influences internal and external amenity for children, staff and neighbours. Achieving good amenity contributes to positive learning environments and the well-being of children and staff.
Good amenity combines appropriate and efficient indoor and outdoor learning spaces, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, service areas and ease of access for all age groups and degrees of mobility.
Well-designed child care facilities provide comfortable, diverse and attractive spaces to learn, play and socialise.”
“The considerations [in the Child Care Planning Guideline] give guidance to applicants on how to design a high quality proposal that takes account of its surroundings and any potential environmental impacts the development may cause and to be mindful of potential impacts that may arise from existing uses and conditions within a locality.
The matters support the design principles and must be considered by the consent authority when assessing a DA for a child care facility. Child care facilities can be developed in a broad range of locations and need to be flexible in how they respond to the requirements and challenges this brings.”
“Not all sites will be suitable for child care facilities …
The location and physical context of a child care facility should be safe and healthy for children …
Road safety and traffic efficiency concerns can arise from child care facilities being located with direct access to roads with higher traffic volumes, higher operating speeds and more heavy vehicles. Where possible, locating child care facilities on sites adjoining and with access to local roads minimises the potential for conflicts between child pedestrians and traffic in the first instance.”
“When selecting a site ensure that …
the characteristics of the fronting road or roads (for example its operating speed, road classification, traffic volume, heavy vehicle volumes, presence of parking lanes) is appropriate and safe for the proposed use”.
“A child care facility should be located to avoid risks to children, staff or visitors and adverse environmental conditions arising from …
any other identified environmental hazard or risk relevant to the site”.
“Child care facilities located near major roads, rail lines, and beneath flight paths are likely to be subject to noise impacts. Other noisy environments such as industrial areas and substations may impact on the amenity and well-being of the children and staff. The location of child care facilities should be selected to avoid or minimise the potential impact of external sources of significant noise.”
The second objective of Section 3.6 of the Child Care Planning Guideline is “[t]o ensure air quality is acceptable where child care facilities are proposed close to external sources of air pollution such as major roads and industrial development.” There are two considerations – C26 and C27 – relating to this objective in the Child Care Planning Guideline.
Consideration C26 in the Child Care Planning Guideline states “[l]ocate child care facilities on sites which avoid or minimise the potential impact of external sources of air pollution such as major roads and industrial development.”
Consideration C27 in the Child Care Planning Guideline states “[a] suitably qualified air quality professional should prepare an air quality assessment report to demonstrate that proposed child care facilities close to major roads or industrial developments can meet air quality standards in accordance with relevant legislation and guidelines.”
Consideration C27 in the Child Care Planning Guideline goes on to suggest:
“The air quality assessment report should evaluate design considerations to minimise air pollution such as:
• creating an appropriate separation distance between the facility and the pollution source. The location of play areas, sleeping areas and outdoor areas should be as far as practicable from the major source of air pollution
• using landscaping to act as a filter for air pollution generated by traffic and industry. Landscaping has the added benefit of improving aesthetics and minimising visual intrusion from an adjacent roadway
• incorporating ventilation design into the design of the facility.”
The Development Near Rail Corridors and Busy Roads - Interim Guideline (the Busy Roads Guideline) authored by the NSW Government Department of Planning provides information on the planning, design and assessment of development. Its stated aim is to help prevent negative interactions between development and nearby rail corridors and busy roads.
The Busy Roads Guideline applies to certain development under ss 2.98, 2.99, 2.100, 2.120 and 2.121 of the Transport SEPP, and is to be used by stakeholders involved with development in or near rail corridors, busy roads and ancillary facilities (including consent and approval authorities, designers and architects).
The Busy Roads Guideline, while referring to previous sections in the State Environmental Planning Policy (Infrastructure) 2007, must be taken into account when considering granting consent for development pursuant to ss 2.119 and 2.120 of the Transport SEPP.
Section 2.4.2 of the Busy Roads Guideline applies to educational establishments and child care centres, stating that:
“Strategic site selection from the perspective of road and rail corridors for schools and childcare centres is particularly important as young people are generally more sensitive to the effects of noise and adverse air quality than adults. In addition, very young children and babies are more sensitive to these effects than older children. The childcare day often extends beyond the typical school day to include both morning and afternoon peak hour traffic, making childcare centres particularly vulnerable to adverse noise and air quality effects.
Where new schools and childcare centres are being considered, the design should ensure that there is sufficient separation from ‘busy’ roads and rail corridors to avoid adverse noise and air quality impacts …
Once a site has been selected, it is important to avoid siting areas where children spend a lot of time (eg classrooms or outdoor recreation areas) close to the road or rail corridor.”
Figure 2.6 of the Busy Roads Guideline provides a suggested layout configuration for new child care centres and schools, indicating a preferred placement of less sensitive buildings and uses immediately adjacent to a busy road. Measures suggested in the Busy Roads Guideline to avoid, reduce or mitigate noise and air quality impacts at schools and child care centres include:
Redesigning or relocating buildings to locate non-sensitive services like storage, bathrooms and carparking in areas subject to noise and air pollution sources;
Creating courtyards or play areas that are protected from noise and adverse air quality by buildings;
Where sufficient land is available, selling some of the road frontage area to enable it to be used for less sensitive land uses, such as shops or businesses; and
Constructing solid noise wall barriers along the road frontage, taking into consideration any impacts on amenity, solar access, vegetation and safety.
Section 3 of the Busy Roads Guideline contains extensive information on development impacted by rail corridors and busy roads, and the acoustic assessment required for the analysis of such development.
Section 4 of the Busy Roads Guideline addresses air quality near busy roads and describes some of the principles that should be considered at the design stage to achieve improved air quality.
Section 4.1 Health Implications from Motor Vehicle Air Emissions of the Busy Roads Guideline contains a number of statements relevant to the assessment of the proposed development:
“Vehicle exhaust emissions can have a significant influence on local air quality in urban and suburban areas of Australia. Localised effects can be caused as a direct result of the compounds emitted from vehicle exhausts …
Air pollution studies have also identified vulnerable populations, such as children, people who are already ill and older people. Special consideration should be given to the air pollution environment of developments in urban areas that are used for a large proportion of the day by these groups.
Occupants of a dwelling, school, childcare centre, residential aged care facility, hospital, office or public recreational area are likely to be sensitive to emissions from vehicles.
Developments located next to busy roads have challenges in terms of how to provide an acceptable level of air quality for the occupants and users of the development.”
“Patterns of pollutant concentrations vary from site to site and also over time. A wide range of factors influence the level of pollution including: vehicle mix, condition and technology; fuel quality; dispersion of pollutants across a carriageway; weather conditions and traffic flow. The quantity of air pollutants emitted from roads is directly proportional to the traffic volume, speed, and the speed variability (acceleration or braking) of vehicles. Motor vehicles emit fewer pollutants at steady speeds or in freely flowing conditions. They emit greater quantities when accelerating or decelerating, stopping and starting, when in congested traffic or while idling.”
“Broadly speaking, air pollution concentrations tend to be highest adjacent to the road and decrease with distance from it. For example, under the unfavourable dispersion conditions of temperature inversion and light winds (1 metre per second) where little mixing occurs in the atmosphere (termed F-class stability) pollutant concentrations can be expected to reduce by around 65 percent of roadside levels in the first ten metres from the road.”
“With careful site planning and attention to detail, it is possible to incorporate many principles into a building or development to improve the air quality. Many of the techniques described throughout this Guideline are not only useful for noise reduction but also for improving air quality.”
Section 4.4.2 of the Busy Roads Guideline advises, inter alia, the following relevant points in relation to design considerations:
When air quality should be a design consideration:
(a) “Within 10 metres of a congested collector road (traffic speeds of less than 40 km/hr at peak hour) or a road grade > 4% or heavy vehicle percentage flows > 5%, (b) Within 20 metres of a freeway or main road (with more than 2500 vehicles per hour, moderate congestions levels of less than 5% idle time and average speeds of greater than 40 km/hr)”.
(a) “Incorporating an appropriate separation distance between sensitive uses and the road using broad scale site planning principles such as building siting and orientation. The location of living areas, outdoor space and bedrooms and other sensitive uses (such as childcare centres) should be as far as practicable from the major source of air pollution. (b) Ventilation design and open-able windows should be considered in the design of development located adjacent to roadway emission sources. When the use of mechanical ventilation is proposed, the air intakes should be sited as far as practicable from the major source of air pollution. (c) Using vegetative screens, barriers or earth mounds where appropriate to assist in maintaining local ambient air amenity. Landscaping has the added benefit of improving aesthetics and minimising visual intrusion from an adjacent roadway.”
The Association of Australasian Acoustical Consultants Guideline for Child Care Centre Acoustic Assessment, Version 3.0, dated September 2020 (AAAC Guideline) was tendered by Mr Seton. The AAAC Guideline has been prepared by members of the Association of Australasian Acoustical Consultants (AAAC) to assist child care centre developers, child care centre operators, architects, local council or regulatory officers, AAAC and other acoustical consultants to assess the noise impact from proposed child care centres consistently, accurately and fairly. The recommendations in the AAAC Guideline are based on the common practice of AAAC members.
The objectives of the AAAC Guideline include “[t]o protect children from excessive noise which may be experienced due to the close proximity to high noise environments, including busy roads, aircraft or rail operations, and commercial and industrial premises.”
Section 5.0 of the AAAC Guideline addresses external noise impact on children. It states that “[f]or proposals that are located within 60 metres of an arterial road, railway line, industry or within close proximity to an airport, a noise intrusion assessment should be submitted with the development application.”
At Section 5.1, the AAAC Guideline provides criteria for maximum noise levels from road traffic on a child care centre as follows:
“The LAeq,1hr noise level from road traffic, rail or industry at any location within the outdoor play or activity area during the hours when the Centre is operating should not exceed 55 dB(A).
The LAeq,1hr noise level from road traffic, rail or industry at any location within the indoor activity or sleeping areas of the Centre during the hours when the centre is operating shall be capable (ie with doors and / or windows closed) of achieving 40 dB(A) within indoor activity areas and 35 dB(A) in sleeping areas.”
“The design of the child care centre should aim to locate sleep rooms and outdoor play areas away from external noise sources.
Where feasible, building designs could be based on a “U” shaped or “L” shaped layout, with outdoor play areas positioned such that the building structures act as a noise barrier.”
Mr Seton tendered the Road Noise Criteria Guideline by Transport for NSW (TfNSW), dated April 2025, (the Road Noise Guideline), suggesting that this could be read in conjunction with the other policies and guidelines submitted, as it is written to provide consistent approach to identifying road noise criteria for TfNSW projects.
The relevant part of the Road Noise Guideline is at Table 4 “Road traffic noise assessment criteria for non-residential land uses affected by proposed road projects and traffic generating developments”. This supports an application of a LAeq,1hr noise level of maximum 55 dB(A) for areas where there may be a mix of passive and active recreation, e.g. school playgrounds.
Mr Seton tendered the NSW Road Noise Policy prepared by the NSW Department of Environment, Climate Change and Water in March 2011 (Road Noise Policy). In particular, Mr Seton pointed out that Table 4 of the Road Noise Policy establishes road traffic noise assessment criteria that must be applied for non-residential land uses affected by proposed road projects and traffic generating developments. For child care facilities, outdoor play areas have an assessment criterion of LAeq (1 Hour) 55.
It was acknowledged that the Road Noise Policy applies to proposed road projects and traffic generating developments. Nevertheless, the Road Noise Policy approach is consistent with the criteria established in the Road Noise Guideline discussed at [66] – [67] above.
The Education and Care Services National Regulations 2011 (the Regulations) provide specific detail on a range of operational requirements for an education and care service centre in Australia. They are made under ss 301 and 324 of the Children (Education and Care Services) National Law 2010 (NSW) (the National Law) and are more relevant to the operational matters for the child care centre.
It is noted that s 49 of the National Law relates to grounds for refusal of a service approval for a child care centre and states that:
49 Grounds for refusal
(1) The Regulatory Authority must refuse to grant a service approval if—
(a) the Regulatory Authority is satisfied that the service, if permitted to operate, would constitute an unacceptable risk to the safety, health or wellbeing of children who would be educated or cared for by the education and care service
Mr Seton tabled a number of additional documents including:
Adam Capon and Jackie Wright, “An Australian incremental guideline for particulate matter (PM2.5) to assist in development and planning decisions”, Public Health Research and Practice, 4 December 2019 (Capon and Wright Guideline);
“Fact sheet A: Determining existing noise levels*”,* particularly “A1 Determining background noise for the intrusiveness noise level”; and
“National Environment Protection (Ambient Air Quality) Measure” Compilation No 3, dated 26 May 2021.
The above documents are less established as guidelines to be applied in the assessment of the acoustic and air quality impacts in this case. In particular, the Capon and Wright Guideline is on the planning portal but not “published” or part of an adopted guideline.
However, they do provide additional assistance in the assessment of the acoustic and air quality impacts arising from the proximity of Rocky Point Road to the outside play areas of the proposed child care centre and assist in determining whether the modelled impacts are acceptable.
The LEP is the relevant environmental planning instrument applying to the site.
The site is identified on the Land Zoning Map referred to in cl 2.2 of the LEP as being within Zone R2 Low Density Residential.
Development for the purpose of “[c]entre-based child care facilities” is permitted with consent in Zone R2 Low Density Residential under the LEP.
Pursuant to cl 2.7 of the LEP, demolition requires consent.
Pursuant to the Height of Buildings Map referred to in cl 4.3 Height of buildings of the LEP, a maximum height of 8.5 metres applies to any building on the land.
Pursuant to the Floor Space Ratio Map referred to in cl 4.4 Floor space ratio of the LEP, the maximum floor space ratio for any building on the land is 0.5:1.
The site is identified on the Acid Sulfate Soils Map referred to in cl 6.1 Acid sulfate soils of the LEP as being affected by Class 5 Acid sulfate soils.
The Rockdale Development Control Plan 2011 (the DCP) contains Part 6.1 relating to child care centres. Mr Seton emphasised Objective D of this section of the DCP is “[t]o ensure that child care centres are appropriately located on sites where high levels of safety, security, environmental health and amenity for children are achieved”.
Control 4 of Part 6.1 of the DCP provides guidelines for the location of a new child care centre, and states that:
“Child care centres should not be located …
on sites with a boundary to Classified Roads”.
Control 8 of Part 6.1 of the DCP states that “[c]hild care centres are not to be located on sites with any boundary to classified roads or at busy intersections.”
Control 22 of Part 6.1 of the DCP states that “[w]here the [child care] centre is affected by excessive noise, the centre must be designed to minimise the impact of that noise source, for example, using appropriate screening devices or locating sensitive areas (e.g. sleeping rooms) away from the source of noise.”
The Court was assisted by the evidence provided by Mr S Gauld (for the Applicant) and Mr R Haydon (for the Respondent). The joint report by the acoustic experts (as filed with the Court on 3 July 2025) (the acoustic joint report) refers to the amended SOFAC, in particular, Contention 4 relating to acoustic impacts and the set of plans current at that date (including the Architectural Plans Rev A dated 20 March 2025). It is noted that the final DA contains some changes in the design of the proposed development which the experts addressed in their oral evidence.
In the amended SOFAC, the Respondent had raised its concerns that “[t]he road traffic noise intrusion contours indicate the noise level in the outdoor areas will be generally ≤ 55 dB(A) with the exception of the southern extent of the main ground floor outdoor play area which appears to range between 55-61 dB(A).”
The Respondent had also raised in the amended SOFAC that “[i]nsufficient information has been provided [by the Applicant] to determine if the recommended mitigation measures will prevent unreasonable noise impacts.”
To address this contention, Mr Gauld amended his acoustic report to include several new receptors. The amended report is the Environmental Noise Assessment (ref: 7576-1.1R Rev C) prepared by Day Design Pty Ltd, dated 17 June 2025 (Rev C Acoustic Report).
The matters agreed by the acoustic experts in the acoustic joint report in assessing this contention were as follows:
The AAAC Guideline (refer to [61] – [65] above) includes a requirement that the noise level intrusion from road traffic noise to outdoor play areas not exceed 55 dB(A);
The noise modelling presented in Section 5.4.6 of the Applicant’s Rev C Acoustic Report shows that the whole (198m2) of the first floor outdoor play area for 3-5 year olds is exposed to less than 55 dB(A) from traffic noise intrusion;
The rear ground floor outdoor play area (51m2) for 0-2 year olds is exposed to less than 55 dB(A) from traffic noise intrusion;
The main ground floor outdoor play area (183m2) for 0-2 year olds and 2-3 year olds is exposed to traffic noise intrusion as follows;
(a) Approximately 141m2 (77%) of the ground floor outdoor play area is exposed to less than 55 dB(A) from traffic noise intrusion; (b) Approximately 42m2 (23%) of the ground floor outdoor play area is exposed to traffic noise intrusion of between 55 and 61 dB(A); (c) Mr Gauld says the outdoor play areas are designed to be within a U-shape to protect the majority of the ground floor outdoor play area from traffic noise and also to protect the residential premises from noise emission from children at play outdoors; and (d) The section of the outdoor play area that exceeds 55 dB(A) is along the southern extent of the ground floor (3m wide), where the outdoor play area is not shielded by the child care centre building. In this area the level exceeds 55 dB(A) by up to 6 dB.
The acoustic experts disagreed on “[w]hether the calculated traffic noise level in the ground floor outdoor play area is acceptable or not.” I am informed in the following discussion by the acoustic joint report and oral evidence provided at the hearing by Mr Gauld and Mr Haydon.
Mr Gauld submitted at par 37 that “[t]he majority of the ground floor outdoor play area is exposed to less than 55 dBA from traffic noise intrusion” and at par 38 that “[i]n the 3 m wide southern strip of the ground floor outdoor play area, where the traffic noise level is calculated to be between 55 and 61 dBA, the noise level from children playing is calculated to be in excess of 65 dBA”.
Mr Gauld suggested that the children had a number of options in using the ground floor play area exposed to traffic noise in excess of 55 dB(A):
“39. For children that desire less traffic noise, the majority of the outdoor play area is less than 55 dBA and those children can choose to play in an area that is less affected by traffic noise.
40. For children that are not disturbed by traffic noise, they are able to play in any area of the outdoor play area.”
Mr Gauld provided an assessment of the application of the Transport SEPP, the DCP, the AAAC Guideline (referred to at [61] – [65]), the Road Noise Policy (refer to [68] – [69]), the Road Noise Guideline (referred to at[66] – [67]), and the Busy Roads Guideline (referred to at [49] – [60]). Mr Gauld suggested limited weight be given to the application of these documents in the assessment of the proposed development for a number of reasons:
The Transport SEPP does not contain any requirement for external traffic noise limits;
The DCP does not require compliance with any specific traffic noise criteria for external play areas. Clause 22 in Part 6.1 of the DCP requires centres affected by excessive noise to be designed to minimise the impact of that noise, and that this has been achieved by the provision of the proposed acoustic barriers;
There are no limits in any document that Mr Gauld is aware of, except the AAAC Guideline, which is a recommendation and not a requirement;
The application of the assessment criteria in Table 4 of the Road Noise Policy is not for existing roads, but for proposed road projects and traffic generating developments;
The Road Noise Guideline similarly was dismissed from Mr Gauld’s consideration; and
Section 2.4.2 of the Busy Roads Guideline does not provide any numeric noise criteria relating to road traffic noise levels to child care centres. However, the Busy Roads Guideline does discuss measures to avoid, reduce or mitigate noise and air quality impacts at schools and child care centres, one of which includes constructing solid noise wall barriers along the road frontage.
Mr Gauld pointed out at par 50 that “[p]revious iterations of the proposal contained barriers to reduce traffic noise to the outdoor play area. The current proposal before the Court sets the building back from the road and includes a building that shields the outdoor play area from the road traffic noise.” The proposal includes a U-shaped building fronting Rocky Point Road which Mr Gauld stated would reduce the traffic noise level to the outdoor play areas.
Mr Haydon raised in the acoustic joint report a number of aspects about modelling of traffic noise intrusion in the Rev C Acoustic Report. The identified “modelling anomaly” was addressed by Mr Gauld in the acoustic joint report.
Mr Gauld concluded at par 67 that “a traffic noise level of up to 61 dBA in a 3m wide section of the ground floor outdoor play area, and up to 56 dBA in the centre of the Ground Floor outdoor play area is less than the noise level generated by the children at play in the same area and is considered acceptable in this circumstance.”
Mr Haydon referred to the various guidelines (discussed at [37] – [75] above) in the acoustic joint report and concluded at par 84 that “all suggest a maximum outdoor noise level of LAeq 55 dB within outdoor play areas of child care centres. To deviate from a criterion of 55 dB(A), and allow higher noise levels, will not create a safe or great learning environment for staff and children and does not create a great precedent.”
Mr Haydon suggested in the acoustic joint report that:
“87. As a starting point, a child care centre should be designed to comply with the traffic noise intrusion requirements, and if it is demonstrated that acoustic compliance cannot be achieved, one must question:
i. Whether additional noise mitigation measures are required to reduce traffic noise intrusion to acceptable and complying levels?
ii. Whether the design of the subject child care centre is appropriate?
ii.(sic) Whether the site is a suitable site for a child care centre?”
In response to the commentary in the Rev C Acoustic Report, Mr Haydon stated that it is important to note that:
The designated ground floor outdoor play area is proposed for use by 8 x 0-2 year olds, and 8 x 2-3 year olds;
The uncovered area where the Rev C Acoustic Report shows traffic noise levels to not comply with the 55 dB(A) criterion, is the only uncovered area the 18 x 0-2 year old children have access to;
8 x 0-2 year old and 18 x 2-3 year old children are unlikely to make a decision about where to play based upon the prevailing noise environment as suggested by the Rev C Acoustic Report and Mr Gauld (referred to at [94] above).
In relation to Mr Gauld’s further noise modelling and investigations detailed in the acoustic joint report, Mr Haydon stated the following:
Just under half (approximately) the ground floor open play area is within the LAeq15hour 56 dB contour;
There is a 3m wide strip adjacent to the boundary barrier where the noise level is LAeq15hour 56-59 dB;
Mr Gauld indicates in the joint report that the LAeq1hour is 2 dB higher than the LAeq15hour. Hence the noise level in just under half the ground outdoor play area is likely to be LAeq1hour 58 dB, and within the 3m wide strip LAeq1hour 58-61 dB.
Mr Haydon concludes at par 92 that “as a starting point for this development, the subject child care centre should be designed to comply with the traffic noise intrusion requirements, affording future children and staff a suitable acoustic environment for communication including teaching, learning and safety.”
There was extensive cross-examination of the acoustic experts at the hearing, and discussion of their assessments as contained in the acoustic joint report. Having reviewed the evidence of the two acoustic experts, I find that I am in agreement with Mr Haydon’s position stated at paras [99] - [102] above.
The Court was also assisted by the evidence provided by Mr A Naghizadeh (for the Applicant) and Mr A Todoroski (for the Respondent). The joint report by the air quality experts (the air quality joint report) (as filed with the Court on 3 July 2025) refers to the amended SOFAC.
The air quality joint report relies upon (amongst other documents) the Proposed Child Care Centre Air Quality Assessment, 668 Rocky Point Road, Sans Souci NSW, prepared by SLR Consulting dated 31 October 2024 (the SLR Report); and the Proposed Child Care Centre Air Quality Assessment – Addendum Report prepared by SLR Consulting dated 28 March 2025 (the SLR Addendum Report).
The air quality experts stated in the summary to the air quality joint report that they agree that:
The key issues for the air quality assessment in this matter are the choice of criteria for annual average PM2.5, which the experts consider to be a suitable surrogate for assessing the range of other traffic emissions such as NO2 and air toxics. The other key issue is the choice of the proposal site, which is at a signalised intersection on a major classified road;
If Mr Todoroski’s adopted Incremental Criteria (in the Capon and Wright Guideline) for annual average PM2.5 of 0.5 µg/m3, a health impact based criterion for assessing traffic pollutant impacts at proposed child care centres near roads, is adopted, this means the site is unsuitable for the proposed development. In Mr Todoroski’s opinion, this is the appropriate criterion to use (the term incremental refers to the pollution concentration due to traffic only);
On the other hand, if Mr Naghizadeh’s cumulative annual average PM2.5 criterion of 8.0 µg/m3, which is per the Approved Methods, and which “…lists the statutory methods for modelling and assessing emissions of air pollutants from stationary sources…” is adopted, this means that the secondary technical issues raised by the experts in the table (as appended to the air quality joint report) become relevant. In Mr Naghizadeh’s opinion, this is the appropriate criterion to use;
If the selected site itself is not considered appropriate (as is Mr Todoroski’s opinion), it means the project is not acceptable and the secondary technical modelling issues become irrelevant, but if the site is considered suitable (as is Mr Naghizadeh’s opinion), then the secondary technical issues do become relevant; and
The secondary issues mainly relate to SLR modelling settings, some of the assumptions applied, but also issues in how the impact is assessed, and which data or results are considered, and the adequacy of the design and mitigation measures proposed. Other issues include the sensitivity of the SLR criterion to changes in the background level, and assumptions about traffic (there are many such technical issues outlined in the tables contained in the air quality joint report and discussed at [108] below).
The air quality experts stated in the summary to the air quality joint report that they do not agree on the matters as follows:
Mr Todoroski’s view is that the SLR modelling has too many underestimating assumptions and inherent limitations in the model and settings, and too few overestimating assumptions to be sufficiently accurate in the context of the high traffic pollution locality chosen;
As an example, one of many understanding factors is the 1 metre vertical resolution in the modelling which means the results represent the average concentration between a height of 0.75 to 1.25 metres. This is well above the height where children breathe air and is a height where traffic pollution concentrations are lower than the concentration which children would experience. Traffic pollution concentrations are higher closer to the ground and typically a height of 0.3 to 0.5 metres is modelled because it represents the height at which children breathe air. Mr Todoroski considers that there are many such underestimations;
Mr Todoroski made calculations and comparisons to test Mr Naghizadeh’s assumptions and found a significant overall underestimation when the key assumptions and inputs are considered, including traffic numbers. Thus, whilst traffic numbers in isolation may not be underestimated and the new design improves on the earlier proposal, Mr Todoroski considered that the current proposal would not prevent significant adverse impacts upon children using the facility; and
Mr Todoroski stated that the results in the SLR report are, in his view, unreliable for specifying setback distances for the outdoor play areas away from the road sufficient to prevent unacceptable harm to the children. However in his view, the results are sufficient to show that unacceptable impacts would arise at almost any place on the site, and therefore that the proposal should be rejected.
In the air quality joint report, Mr Naghizadeh states that he considers the modelling is sufficiently refined to appropriately predict pollutant concentrations within the site and is reflective of current good practice and state of the science for such studies. In Mr Naghizadeh’s opinion, any underestimation of predicted air quality impacts is not outweighed by conservative assumptions made in the assessment and further changes to the model settings are unlikely to lead to significant changes to predicted concentrations. Considering these, Mr Naghizadeh is of the opinion that the model predictions can be relied upon for assessment of impacts against the criteria adopted by the SLR report, which Mr Naghizadeh considers to be appropriate.
The air quality experts continued in the air quality joint report to discuss their individual choice of air quality criteria (for a further 8 pages) and provided a Response to Contentions Table (Table 1 running to 15 pages). They also provided additional information addressing the Capon and Wright guideline (referred to at [73(1)] ), relating to “the limitations inherent in [this document] when adapting it for assessing childcare centres near roads” at p 28 of the air quality joint report.
Contention 1 of the amended SOFAC states that “[t]he development application should be refused because the proposed development is not sited in a location which is suitable for a child care facility”.
Contention 1(b) of the amended SOFAC further states that “[t]he proposed development is for a child care facility, which is sensitive to traffic pollution. It is inappropriately located directly adjacent to Rocky Point Road, which is a Classified Road, and a suitable design and measures to ameliorate vehicle emissions within the site from the classified road are not proposed.”
Mr Naghizadeh provided a detailed response to Contention 1(b) with respect to air quality as follows:
The SLR Report found that annual average PM2.5 concentrations within the ground floor outdoor play area that extended all the way to the western boundary of the site exceeded the adopted cumulative criterion with a peak increment of 1.6 µg/m3 predicted. This triggered a design change which excluded the worst impacted area; the updated design reduced peak PM2.5 annual average exposure within the ground floor outdoor play area by approximately 19% (1.3 µg/m3 increment). Following further discussions with the design team, additional design features in line with design considerations outlined in the Busy Road Guideline and the Child Care Planning Guideline were adopted by the latest design to further ameliorate potential vehicle emissions within the indoor and outdoor play areas arising from the adjacent classified road. These include:
(a) Siting outdoor play areas at least 15 metres from Rocky Point Road; (b) Placing part of the proposed building in between Rocky Point Road and the outdoor play areas. As outlined in the Busy Road Guideline, buildings may act as a barrier that shields and protects sensitive areas from high-emission zones; and (c) Use of fixed glazed non-operable windows on the western façade of the proposed building facing Rocky Point Road.
Based on the modelling presented in the SLR Addendum Report, the above design changes further reduce potential incremental impact from the surrounding roads by an additional 35% (or 47% from the original DA design with a maximum predicted increment of 0.85 µg/m3 within the outdoor play areas).
In addition to the points in [114] above, Mr Naghizadeh considered that:
The children’s annual average exposure to vehicle emissions would be further reduced by the adopted management measure within the plan of management which requires all windows and doors of the indoor play rooms to be closed when in use;
Proposed landscaping would act as a filter for air pollution generated by traffic, the effects of which have not been captured by the model; and
The 0-2 year old internal play areas are further set back from Rocky Point Road and the outdoor play area in the back corner of the site where the lowest incremental impacts are predicted is dedicated for 0-2 year old use.
Mr Todoroski in his response to Contention 1(b) maintained his view that the proposed site is not appropriate for a child care centre due to it being located at a busy intersection on a classified road where there is an inherently high concentration of traffic pollution. Mr Todoroski stated that:
Selecting this site as the location to develop a new child care centre is not in accordance with s 2.119 (2)(c) Development with frontage to classified road’ of the Transport SEPP or Consideration 26 of the Child Care Planning Guideline; and
The new design improves on the previous design due to the larger setback to outdoor play areas and the likely barrier effect of the structure between the play area and road. There are also aspects of the design which, in Mr Todoroski’s view, would increase air pollution. However, the modelling indicates that the design is still not sufficient to result in acceptable levels of impact (i.e. the predicted PM2.5 impact is above 0.5 µg/m3). Due to limitations in the selected model and underestimations in the modelling assumptions and settings, the likely impact would be higher than presented and may not meet any other criteria (whether applicable or not).
Mr Todoroski stated in the air quality joint report that he does not agree that the reduction in impacts due to the new design results in an acceptable proposal, or that a few plantings make any material difference in this case, but does acknowledge that air quality in the 0-2 year old play area in the far, rear corner may be relatively close to meeting the Incremental Criteria (in the Capon and Wright Guideline) as discussed at [107(2)] above. However in Mr Todosroski’s view this simply highlights that the majority of the site does not provide reasonably acceptable air quality for children at a child care centre.
Mr Naghizadeh held contrasting views, stating in the air quality joint report that in his opinion, while the location of the site means that it is impacted by emissions from vehicles travelling along a classified road, the adopted design features significantly ameliorate potential vehicle emissions within the indoor and outdoor play areas arising from the adjacent classified road.
Mr Todoroski maintained his view in the air quality joint report that the proposed development does not contain measures sufficient to meet reasonable criteria to adequately protect the young children in the centre from unacceptable harm from traffic pollution and thus should not be approved.
There was also extensive cross-examination of the air quality experts at the hearing, and discussion of their assessments as contained in the air quality joint report.
I consider that an outcome of this cross-examination was to highlight the deficiencies and limitations in the air quality models available and as utilised by the parties to model a complex environment.
Following this discussion at the hearing, I am generally in agreement with Mr Todoroski’s statements (as taken below from the air quality joint report) that:
Acceptable levels of air quality for young children are stringent in regard to traffic emissions because young children are especially vulnerable to such pollution. Acceptable levels of air quality for young children near roads are set out in the Incremental Criteria (in the Capon and Wright Guideline) and cannot be reasonably met by the proposed design at this location;
The selection of this site for use as a child care centre does not meet the objective of Consideration 26 of the Child Care Planning Guideline. This is because busy signalised intersections on major roads are not sites that avoid or minimise impact, just the opposite, they are sites which maximise the potential impact of road traffic pollution from major roads, which results in an especially elevated risk of harm to young children;
Whilst the new design of the proposed child care centre does increase separation distance (the second design also did this), the new design does not provide sufficiently adequate separation that can achieve acceptable air quality criteria at this site;
The proposal does not contain measures sufficient to meet reasonable criteria to adequately protect the young children from unacceptable harm from traffic pollution and thus should not be approved; and
There are many poor practice aspects to the design that increase pollution levels at the site, including the cantilever design that prevents vertical dispersion, and which along with the fence and building also causes poor cross flow and poor flushing of air pollutants.
Both parties tendered cases relating to acoustic and air quality impacts on potential child care centres that they considered to be relevant in assisting the Court in its consideration of the proposed development. These included:
Eboli v Penrith City Council [2024] NSWLEC 1320 (Eboli);
Creative Drafting Services v City of Parramatta Council [2019] NSWLEC 1413 (Creative Drafting Services);
PJM Group Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1170 (PJM Group Pty Ltd);
Rupani v Ku-ring-gai Council [2024] NSWLEC 1569;
Archian Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1546; and
FSLA Property Holdings Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1455.
I have reviewed the cases submitted by the parties below at [125] – [129], I make brief reference to several of these cases which involved contested hearings, where acoustic and air quality impacts were discussed at length.
In Eboli, in his consideration of a proposed child care centre, Commissioner Horton stated at [209] – [210] that:
“209 I accept that the AAAC guideline is a reasonable basis for assessment. The Court is familiar with the AAAC Guideline, having accepted it as an appropriate guideline in Raland Constructions Pty Ltd v Hunters Hill Council [2021] NSWLEC 1535. Likewise, the Court accepted the efficacy of the same AAAC Guideline in Force Way Group Pty Limited v City of Parramatta Council [2021] NSWLEC 1024.
210 The AAAC Guidelines has been developed by professional acoustic practitioners, within the forum of a recognised professional organisation, and is particular to child care facilities such as the proposed development.”
“247 As with air quality emission levels, no matter how “marginal” the non-compliance [of noise exposure] with acceptable criteria may be, the adverse impacts that could result will be on a vulnerable group, being young children, for extended periods at a time, which is what provisions such as cl 101 of the ISEPP [State Environmental Planning Policy (Infrastructure) 2007] seek to avoid.”
“252 … I am not satisfied, as I am required to be by s 4.15(1)(c) of the EPA Act, that the site is suitable for a child care centre.
253 This is, in essence, based on the same conclusions I reached in considering the mandatory requirements of the ISEPP. In summary, the development is of a type that is sensitive to traffic noise and vehicle emissions, it is not appropriately located and designed, and I was not satisfied that the measures to ameliorate potential traffic noise or vehicle emissions from the adjacent roads would adequately achieve that outcome. Accordingly, the application must be refused.
254 In coming to that conclusion, I accept that child care centres are not prohibited in the B6 zone. However, this does not mean that all sites in that zone are equally acceptable in terms of being an appropriate location for a child care centre even if they are all adjacent to a classified road. Not all sites are on the corner of a classified road and a secondary busy road which also services an industrial area …
255 Whilst I agree that it is not usually appropriate that the Court considers whether or not there is a better location for a proposed development, that is not the case in this instance where the Court is required to consider whether exceptional circumstances exist which warrant a particular site being given “exemptions” from certain requirements which are in place to protect the amenity of children in such facilities.
256 I therefore believe it is relevant in such circumstances to consider whether or not better locations are available, if a demand for a child care centre in the area exists…”
“72 … the applicant submits that the proposed childcare centre building has been designed to act as a barrier to shield and protect sensitive areas from high-emissions zones”
and further at [105] that:
“105 … Whilst it is located adjacent to the Pacific Highway, I am satisfied on the evidence that the design approach and the ameliorative elements, together with the assessment that has been undertaken in terms of the impact of that highway are such that this is an appropriate design for a development in this location”.
Child care centres are not prohibited in the R2 zone under the LEP. However, this does not mean that all sites in that zone will be, or can be made to be, acceptable for a child care centre.
The Transport SEPP, Child Care Planning Guideline, AAAC Guideline, Road Noise Guideline, the Regulations and the DCP controls clearly anticipate the need to assess and address the potential acoustic and air quality impacts on children arising from a proposed child care centre’s location on a main road. The various guidelines and the DCP controls are not mandatory, but they do provide a clear framework for the assessment of such a proposed development, and were extensively discussed in the expert witness reports on acoustic and air quality impacts.
As stated in [35], Mr Seton submitted that s 2.119(1)(b) of the Transport SEPP is particularly relevant to the Court’s consideration of the final DA and that the Court would need to form an opinion pursuant to s 2.119(2)(c) of the Transport SEPP if the proposed development is appropriately sited or designed to ameliorate traffic noise or vehicle emissions.
As previously stated the Transport SEPP contains a provision at s 2.119(2)(c) that:
(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—
…
(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
The site is constrained by its location and its relatively small area. The site would only allow for a relatively small number of children to be accommodated on-site (a capacity of 58 child care places is proposed in the final DA). With the proposed design and layout of the child care centre, there are constraints on what can be achieved on the site while keeping acoustic and air pollution impacts within the accepted limits.
The acoustic and air quality modelling provided by the Applicant does not provide an endorsement of the proposed development. Rather, it suggests there is a real risk and possibility that there would be unacceptable acoustic and air quality impacts on a number of children attending the centre. Not all children and not all play areas proposed in the centre would be affected, however the design and layout does not provide outdoor play areas unaffected by unacceptable acoustic and air quality impacts for all children attending the centre.
Having carefully reviewed and considered the experts’ joint reports and their testimony to the Court, I am not satisfied that the proposed development for a child care centre as per the design in the final DA should be granted development consent pursuant to s 2.119(2)(c) of the Transport SEPP.
It is noted that there are potentially other design options for a child care centre on the site which could locate the play areas away from the Rocky Point Road frontage or utilise other design features to appropriately protect the affected play areas, which have not been pursued by the Applicant or assessed by the Respondent.
On the basis of the proposed design in the final DA I am not satisfied, as I am required to be by s 4.15(1)(c) of the EPA Act, that the site is suitable for a child care centre development as proposed.
The Court orders:
The appeal is dismissed.
Development consent for development application DA-2022/407 as amended for the demolition of existing structures and the construction of a two storey child care facility with capacity for 58 children and 10 staff, one basement level with pram storage, internal lift, mechanical plant room, bicycle parking and parking for 10 cars; five for staff, and five for visitors/drop off and pick-up, including one for accessible drop off and pick-up on the land at 668 Rocky Point Road, Sans Souci, NSW 2219 is refused.
(3) All exhibits are returned except for Exhibits A and O.
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Liskowski
The Bayside Council [2026] NSWLEC 1016