Lu Projects Pty Ltd v Fairfield City Council

Land and Environment Court (NSW)|2018-12-11

Judgment

COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) 353.1/2017 by Fairfield City Council (hereafter the Council) to demolish existing structures and construct a three (3) storey mixed use development including commercial/retail space and a child care centre, with two basement levels and roof top play area at Lot 2 DP 509105 and Lot 12 DP 883460, also known as 259 and 261 Cabramatta Road West, Cabramatta (hereafter the site).

The Site

The southern boundary of the site is Cabramatta Road West. The site is adjoined to the east and west by existing three (3) storey buildings for commercial/retail purposes. Further to this, the building to the west of the site is in the same ownership as the site. The northern site boundary adjoins the Hill Street car park (Council owned), which services Cabramatta Town Centre.
The site has a total area of 1168 m2, on relatively flat land with a minimal fall towards the south-east.
Lot 12 is currently vacant and Lot 2 has a single storey brick structure that historically was used as a fire station.

Relevant Planning Controls

The requirements of s 4.15(1)(c) of the EP&A Act 1979, with respect to the child care centre are particularly relevant in consideration of this DA: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
Pursuant to s 61 of the Roads Act 1993, as the site is bounded by Cabramatta Road West, a Classified Road, the Roads and Maritime Services (RMS) is the consent authority for associated works. RMS has given concurrence to the proposed works and traffic measures associated with access to/from Cabramatta Road West (letter dated 26 October 2018).
Pursuant to cl 104 of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP 2007), the site is identified as a traffic generating development. Further to this, the objectives as set out in cl 101, and in particular those that relate to vehicle emissions (1b) and design of a sensitive site (2c) are relevant for consideration of this DA: 101 Development with frontage to classified road (1) The objectives of this clause 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.
The State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP 2017) and associated Child Care Planning Guidelines 2017 (CCPG 2017) are relevant for consideration of this DA, in particular: air pollution (s 3.6); supervision (s 4.7); evacuation (s 4.8); landscaping (s 3.4); and outdoor play space (s 4.9).
In assessing the design and location of the outdoor play space and internal amenity of rooms associated with the child care centre, the Education and Care Services National Regulations 2018 (ECSNR 2018) are relevant for consideration, in particular: cl 110 relating to amenity (ventilation and natural light); and cl 115 relating to supervision.
The site is located within a B4 Mixed Use zone, as identified in the Fairfield Local Environmental Plan 2013 (FLEP 2013). Of relevance in consideration of the DA, and in particular relating to the proposed child care centre are: cl 2.3 zone objectives; cl 4.3 height standard; and cl 4.6 exception (variation) to a development standard.
In consideration of the DA, there are a number of relevant sections of the Fairfield City Wide Development Control Plan 2013 (FCDCP 2013), including: s 13.1.3 location requirements; s 13.1.14 on above ground child care centres; s 13.1.7 on design of outdoor spaces and landscape; ss 13.1.20 and 13.1.21 on solar access and ventilation; and Chapter 13 for sites located on a Classified Road.
The site is located within Precinct 5 of the Cabramatta Town Centre, as described in the Cabramatta Town Centre Development Control Plan No. 5 2000 (CTCDCP 2000). The CTCDCP 2000 provides relevant criteria relating to waste management.

Evidence

The Applicant has relied on Mr Warwick Gosling and Mr Scott Fishwick for expert evidence on planning and air quality, respectively.
The Respondent has relied on Mr Jeff Mead for expert planning evidence.

Does the cl 4.6 written request for variation of the height standard satisfy the requirements of the FLEP 2013?

The planning experts agree that, pursuant to cl 4.3 of the FLEP 2013, the maximum height standard applied to the site is 10 m, and that the height non-compliance based on the amended plans is 1.955 m. The experts also agree that the non-compliance to the height standard relates to the lift overrun and shading structures associated with the roof outdoor play area, a requirement to the functionality of the proposed child care centre.
A cl 4.6 written request for variation, pursuant to the FELP 2013 is agreed as required by the experts, to enable utilisation of the outdoor play space on the roof top.
The DA therefore relies on a written request seeking a variation of (exception to) the height standard of 10 m, which the Court must consider pursuant to the requirements as set out in cl 4.6 of the FLEP 2013: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. …
When assessing a variation of the height standard in cl 4.3 of the FLEP 2013, there are a number of steps, often referred to as the 'Wehbe tests' which must be satisfied. These steps for assessment are helpfully explained by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 and are based on the criteria established in cl 4.6 of the FELP 2013.
Further to this, as discussed in Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 by Preston CJ, a cl 4.6 written request must address the following matters:

(3)(a) That compliance with the relevant development standard must be unreasonable or unnecessary in the circumstances of the case;
(3)(b) That there are sufficient environmental planning grounds to justify contravening the development standard;
(4)(a)(i) That the applicant's written request has adequately addressed the matters required to be demonstrated by subclause 3; and
(4)(a)(ii) That the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone.

The objectives that relate to the B4 Mixed Use zone as it applies to the site are: Objectives of zone • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To support the development of Prairiewood, Fairfield and Cabramatta as the principal locations for specialist cultural, retail, business, tourist and entertainment facilities and services.
The height objectives that must be considered are set out in cl 4.3 of the LEP 2013, are as follows: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to establish the maximum height for buildings, (b) to ensure that the height of buildings complements the streetscape and character of the area in which the buildings are located, (c) to minimise the visual impact, disruption of views, loss of privacy and loss of solar access to existing development. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. ...

Written Request

The amended cl 4.6 written submission, provided in Exhibit D, is dated 3 December 2018. It is noted that there is no signed author of the document, although it is submitted on letterhead of DFP Planning consultants, whom it was established in the hearing as Mr Gosling being the author.
The cl 4.6 written request identifies the proposed height variances sought in exceedance of 10 m as follows: "• Lift overrun including service vent is 11.955 m • Parapet at Cabramatta Road frontage is 10.25 m, and • (Lightweight) shade structure on roof is 10.63 m"
The written request for variation of cl 4.3, pursuant to cl 4.6(3) of the FLEP 2013, concludes that a variation of the maximum height should be supported, as strict compliance to the standard is both unnecessary and unreasonable, as explained below: 1. The proposed development is a maximum of 1.955 m, equivalent to a breach of 19.55% over the height standard; 2. The perception from Cabramatta Road West and the Hill Street car park is of a building that 'fits in the streetscape … that is consistent with the adjoining buildings height and replaces a vacant site and a small single storey dwelling'. 3. There are no adverse visual or amenity impacts as a result of the proposed height breaches. 4. A height compliant building would require a lowered lift overrun, 'which could only be achieved by removing a floor'. This would result in a two storey building that would not be in context with the streetscape and would be inconsistent with the 'site specific DCP controls'. 5. The lift overrun is set back 8 m from the parapet, which will not be visible from the streetscape. 6. The proposed use of retail, commercial and child care are compatible and assist with local employment options. In addition, the site is located in close proximity to public transport. 7. There is no impact to the 'compatibility or the accessibility of the site'. The proposed outdoor play space cannot be provided on ground level due to the requirement to provide a 'through link' between the Hill Street car park and Cabramatta Road West. 8. Compliance with the height standard would result in a building that is lower in elevation to the adjoining buildings and will create a poor presentation to Cabramatta Road West. The proposed variation results in a building that is 'consistent in design, bulk and scale with the streetscape'.
I accept that compliance to the height standard, pursuant to cl 4.3 of the FLEP 2013, based on the proposed design of the building, is both unreasonable and unnecessary. This assessment is supported by the perceived lack of visibility in the streetscape, and impact to the amenity of surrounding buildings due to the set back of the proposed structures on the roof (that relate to the breach) and their limited areal significance.
However, the written request, as provided in Exhibit D, makes no specific reference, nor statement as to the sufficiency of environmental planning grounds which is required to contravene a development standard, as specified in cl 4.6(3)(a)(ii) of the FLEP 2013. Therefore, I find that the cl 4.6 written request does not satisfy the requirements for a variation in the maximum height standard.
It is relevant to consider the judgement of Dixon SC in Brigham v Canterbury-Bankstown Council [2018] NSWLEC 1406 at [46] which states: "Rather, cl 4.6 mandates a planning assessment of the matters directly raised by the clause and relevant to the particular development and the circumstances of the case."
The judgement of Dixon SC in Brigham v Canterbury-Bankstown Council [2018] NSWLEC 1406 at [45] also relevantly expresses the importance of a cl 4.6 written request specifically addressing the requirements of the clause: "It would have been more helpful had the applicant heeded the caution in the decision of Four2 Five Pty Ltd - that when dealing with a cl 4.6 variation request one should remain "faithful to the language of the clause rather than any stated principles".

Zone and height objectives

The cl 4.6 written request relies on the decision by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 referencing no requirement for the applicant to demonstrate compliance with the objectives as set out in cl 4.6(1) of the FLEP 2013.
The cl 4.6 written request goes on to address how the B4 Mixed Use zone objectives will be achieved by the proposed development as follows: "Zone objective 1: To provide a mixture of compatible land uses - provision of commercial, retail and child care centre Zone objective 2: To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling - allows patronage of proposed development by users of nearby public transport and local commercial zone Zone objective 3 - To support the development of Prairiewood, Fairfield and Cabramatta as the principal locations for specialist cultural, retail, business, tourist and entertainment facilities and services - provision of a through link to the Cabramatta town centre allows convenient access for parents."
In considering the issue of consistency with the zone objectives, I adopt the approach expressed in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 by Pearlman CJ in [27]: "The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible."
I therefore find that the proposed development is not incompatible with the zone objectives, as established in the FLEP 2013.
With regards to the height objectives, the cl 4.6 written request explains that: 1. the maximum height of the building as 10 m, 2. the setback of the lift overrun is 8 m, which is the highest feature and not visible in the streetscape and the other buildings are 3 storeys, thereby maintaining the characters of the area, and 3. there are no adverse impacts to views, privacy or solar access to the existing development.
The experts agree, and I concur that the aspects of non-compliance to the height standard (i.e. structures on the roof) based on the amended plans achieves the height objectives as set out in cl 4.3 of the FLEP 2013.

Public interest

The written request does not specifically respond to the requirements of cl 4.6(4)(a)(ii), except to reference 'public interest' under its response to cl 4.6(5)(b), that relates to public benefit as assessed by the Director-General. Clause 4.6(5)(b) is not relevant to the proposed development.
Despite this poor referencing in the cl 4.6 written request, there is a statement that refers to a variation in the height standard as being 'in the public interest', as it is three storeys in height and provides a positive contribution to the streetscape.
On this basis, I consider that the cl 4.6 written request has addressed the requirements of cl 4.6(4)(a)(ii) of the FLEP 2013, albeit in a roundabout way.

Findings

I am not satisfied that the cl 4.6 written request is satisfactory, pursuant to cl 4.6(4)(a(i) of the FLEP 2013, I therefore cannot consent to the proposed variation in height and there is no jurisdiction to approve the DA.

Is the child care centre an appropriate design and/or in a suitable location?

Despite my finding above with regards to failing to satisfy cl 4.6 requirements as set out in FLEP 2013, I find it helpful for the applicant that I address the issue of site suitability as it relates to the proposed child care centre, as it is designed.
The Council contends that the proposed design of the child care centre does not adequately address the constraints of the site, namely proximity to a classified road, and that this proposed activity is unsuitable for this site. The Council has no issue regarding the design or location of the proposed commercial/retail component of the development, except regarding waste management.
The child care centre, based on amended plans is designed to occupy the first and second floor levels of building fronting Cabramatta Road West (southern boundary), and also the roof top area.
The planning experts agree that to protect children from particulate matter (adverse air quality) and reduce acoustic impact, due to the site's proximity to Cabramatta Road West, the windows of the child care centre must remain closed during the hours of operation and be acoustically glazed. Further to this, they agree that, for this site, the outdoor play space is best located in an elevated position, however they disagree on the functionality of the outdoor space on the roof top.
The experts also agree that the site is sensitive to vehicle emissions, although disagree whether the proposed design of the internal and external areas of the child care centre satisfy the requirements of cl 101 of the SEPP 2007 with regards to solar access and ventilation.
Mr Mead considers that the need for an outdoor play space on the roof, together with the requirement for closed and glazed windows suggests that the site is not a suitable location for a child care centre. It is acknowledged that the site is adversely affected by acoustic impact and air pollution. He contends that the proposed development as designed does not satisfy the objectives of 13.1.20 and 13.1.21 of the FDCDCP 2013 for a 'well designed' child care centre.
He also considers that as result of the (glazed and) closed windows, the child care centre will not provide adequate solar access or (cross) ventilation, as specified in the CCPG 2017. He has particular concerns with regards to the 'babies' and 'toddlers' room, which will not have cross flow ventilation or natural light. The reception area and 'preschool' room will also have no cross ventilation when the windows are closed.
Mr Mead does not consider that the child care centre can function appropriately or safely, noting that the roof top outdoor play area does not have access to toilet facilities for the adults and relies on the lift to move children to/from the indoor/outdoor areas. He considers the reliance on the lift does not achieve a 'flow' (or extension) between the indoor/outdoor space as expressed in s 13.1.7 of the FDCP 2013. The reliance on strollers and multiple lift movements to move children between the indoor and outdoor spaces has the potential to result in insufficient supervision for the children.
He considers that the location of a child care centre above the first floor is not consistent with the controls as set out in s 13.1.14 of the FDCP 2013.
Mr Gosling recognises the constraints of the site, however considers that the proposed design of the development, and in particular the child care centre has adequately addressed these constraints. Therefore the site is suitable for the proposed child care centre. He considers that the glazed windows which will be closed during operational hours of the child care centre and the elevated (roof top) outdoor play area, set back from the road, satisfactorily address any potential adverse impact from air quality or noise.
He does not consider there is adverse impact internally to the child care centre from the closure of windows during hours of operation, which will achieve the necessary ventilation by relying primarily on air conditioning, as well as solar access is sufficient to the indoor play areas. He considers the potential for 'cross flow' ventilation from windows on the southern side ( although he acknowledges must remain closed for acoustic treatment) and air conditioning, satisfies the requirements of cl 11.10 of the ECSNR 2018.
Mr Gosling assesses that the location of the child care centre above the first floor and the proposed design in response to the site constraints, satisfies the objectives of the FDCP 2013 for elevated child care centres in B4 Mixed Use Zones.
In his opinion there is sufficient and safe access to the roof top outdoor play space using a number of 'hexa' multi seat strollers (as described in Exhibit D) for the young (0-2 year old) children, with a series of lift movements to transfer the children in age appropriate groups. He identifies the availability of toilet facilities on the roof for the children, although acknowledges there are no facilities for the adults, whom he considers can use the indoor facilities via the lift. He considers that there is sufficient staff availability to ensure child/staff ratios by relying on 'floaters', which will be implemented through the Plan of Management (PoM).
Mr Gosling considers that the proposed area on the roof provides a 'high quality outdoor play space that will be used in accordance with the childcare planning guideline'.
The planning experts agree that the landscaped area in the outdoor play space should be designed to allow active play and needs to be set back from the balcony edge to ensure safety. The planning experts agreed that the landscape plans should be amended accordingly.
The Court also heard from an air quality expert, Mr Fishwick, whom has assessed the site as suitable for a child care centre. The assessment is based on the proposed design features of the development, including closed windows during operation and elevated, set back outdoor play space on the roof.
His assessment of the air quality is based on a hypothetical model using data from Liverpool Monitoring Station and utilising the proposed design as shown in the amended plans. Mr Fishwick assessed (Ex D) the primary threat to air quality comes from wood fires in winter, which is a problem not constrained to this site. He also assessed the main sensitivity for the child care centre to vehicular emissions was during the day due to thermal differences and wind, which could be addressed through closed windows during hours of operation.
Mr Fishwick agrees that for this site, a roof top outdoor play area, set back from the road is a better outcome than a ground floor located outdoor play area, due to the lesser proximity to the source of pollution and the building offering a 'shielding effect'. He commented that 'the higher the receptor, the better'.

Findings

The experts and I agree that the location of the outdoor play area on the roof top and closure of glazed windows during operational hours satisfactorily mitigates any potential impacts from noise and vehicular emissions to children attending the child care centre.
Therefore, I find that cl 101 of the SEPP Infrastructure 2007 is satisfied. In particular, the proposed development: addresses cl 101(1b) 'to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads'; and the measures to close and glaze windows along the southern boundary during operational hours of the child care centre achieves cl 101(c) because it 'includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road'.
The issue therefore that remains to be resolved is whether the measures to mitigate impact/s associated with the site's proximity to a classified road, result in consequential adverse impacts that make the site unsuitable for the proposed purpose of a child care centre.
Based on the proposed design and function of the development to require windows along the southern boundary of the site (adjacent to the Classified Road and associated with the child care centre) to be closed during operational hours, I am not satisfied that cl 110(a) of the Education and Care Services National Regulations 2018 is achieved. Further to this, I find that the design of the south facing child care centre with internal windowless rooms for the youngest children does not achieve cl 110(b).
The requirements for 'good ventilation' as described in s 4.4 of the CCPG 2017 have not been achieved. Based on the proposed design, the child care centre during operational hours is unable to rely on 'a mixture of natural cross ventilation and air conditioning' due to the requirement to ensure windows are closed.
I find that due to the proximity of the site to the classified road (southern boundary), Council car park (northern boundary) and adjoining existing buildings (western and eastern boundaries), the site is unable to achieve natural ventilation with the proposed design. The proposed design does not achieve the objective 13.1.21(a) of the FCDCP 2013, particularly with regards to 'natural airflow' that utilises 'natural ventilation'.
The outdoor play space on the roof results in 'multi-level' rooms, that requires additional staffing particularly during the relocation of children to/from the roof, to relieve staff that need to use bathroom facilities and in a personal emergency. Mr Gosling acknowledges that adult toilet facilities cannot be accommodated on the roof due to outdoor space area requirements for the number of children proposed. I accept that the PoM considers the requirement for 'floating staff' to address this issue, however I find the possibility of staff not adhering to the staff ratio requirements in unexpected situations, including an emergency evacuation, places an unacceptable risk to the children on the roof. I therefore find that the proposed design does not satisfy cl 115 of the ECSNR 2018, to 'facilitates supervision of children at all times..'.
I find for the reasons stated above, in particular non-compliance with cll 110 and 115 of the Education and Care Services National Regulations 2018 that the site of the proposed child care centre is unsuitable, and that DA353.1/2017 does not satisfy the requirement of s 4.15(1)(c) of the EP&A Act 1979.
As I have determined that the DA does not satisfy the FLEP 2013 and the site is not suitable for the proposed purpose of a child care centre, pursuant to s 4.15(1)(a) (i) and (c) of the EP&A Act 1979, I am not required to consider further the other issue in contention, namely the waste management plan.
I am not satisfied that the proposed development is lawful and complies with the relevant provisions of the EP&A Act 1979.

Orders

Consequently, the orders of the Court are as follows: 1. The appeal is dismissed. 2. Development Application 353.1/2017 to demolish existing structures and construct a three (3) storey mixed use development including commercial/retail space and child care centre, with two basement levels and roof top play area at Lot 2 DP 509105 and Lot 12 DP 883460, also known as 259 and 261 Cabramatta Road West, Cabramatta is refused. 3. The exhibits, except for Exhibits 2, 4, 6, A and D, are returned. ……………………. Sarah Bish Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 January 2019

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