Northrose Pty Ltd v Willoughby City Council

Issues

1. The Respondent maintains that the development application should be refused for the following reasons: 1. That the site is unsuitable for the proposed use as a childcare centre. 2. The traffic generated by the use of Tenancy 4 as a childcare centre will interfere with the functionality of the basement carpark. 3. The childcare centre will have unacceptable noise impacts on adjoining neighbours. 4. The childcare centre will cause unacceptable amenity impacts for the remaining tenancies and the existing residents in the building. 5. That the proposed outdoor play area is located above the existing on-site detention tanks (OSD) for the overall building. The development application makes insufficient provision for ongoing access to this infrastructure. 6. Noise levels at Willoughby Road boundary of the site exceed the maximum acceptable levels for a childcare centre. The Applicant has not demonstrated that the traffic noise will be appropriately mitigated. 7. The assessment of electromagnetic fields undertaken by the Applicant is insufficient to allow an assessment of the any potential impact of electromagnetic radiation on children attending the proposed childcare centre. 8. The assessment of air quality, and any potential impact of elevated traffic pollutant emissions on children, is insufficient.

Subject site and context

1. The subject site is a strata allotment, legally described as Lot 4 in SP 96171. It occupies part of the ground floor of a 4 and 5 storey shop top housing development known as 'The Mint', located in the corner of Willoughby Road, Mowbray Road and Penshurst Street, Willoughby. Pedestrian access to the tenancy is from the footpath adjacent Willoughby Road. Vehicular access is via an existing driveway off Penshurst Street, into an existing basement carpark and through an entry door into Tenancy 4.
2. One of the other ground floor tenancies is currently occupied by a fitness gym called 'Anytime Fitness'.
3. I note that the area proposed for outdoor play for the childcare centre is asserted by some residents as being previously approved as communal open space for the benefit of residents of The Mint as part of the shop top housing development. The loss of this communal open space and its allocation to Lot 4 was the subject of submissions from members of the public. For the purposes of the determination of the development application before the Court, there is no evidence before the Court, or an argument put by the Respondent, that Lot 4 does not incorporate this outdoor space.
4. The location of the development is marked in the following aerial photograph:

Public Submissions

1. The development application, in its original form, was notified to adjoining and adjacent property owners between 8 February 2019 and 1 March 2019. A total of 85 submissions were received, including submissions from the strata committee of 'The Mint'. The submissions received by Council since the lodgement of the development application were tendered in the proceedings as part of the Respondent's evidence. I have read and considered those submissions.
2. At the commencement of the hearing the Court was addressed onsite by six concerned parties. A collation of their written notes was tendered by the Respondent as Exhibit 17.
3. The objections of the residents to the proposed development application can be summarised as follows:

• It is unreasonable for common property of The Mint to be used for the purposes of a child care centre.
• The proposal has unacceptable impacts on the amenity and assets of residents of The Mint, including: - Visual privacy impacts; - Aural privacy impacts; - Adverse carparking and traffic impacts, including drop off and pick up; - Safety and security impacts by the introduction of some additional 150+ swipe cards and key fobs to non-residents of The Mint.
• The proposed development results in the removal of established perimeter landscaping that was required as part of the approval of The Mint.
• The site is not suitable for the development as a high-quality childcare centre cannot be provided. The amenity of the proposed childcare centre is poor (southern orientation, no natural landscaping, poor supervision, outdoor area sits over existing OSD tanks, limited ventilation, glazing to the Willoughby Road frontage).
• The site is proximate to a telecommunications tower which is installed on the roof of The Mint.
• The waste management proposal has not been discussed with the Owners Corporation. Concern raised in relation to widening of door to provide access, bin location and waste generation rates.
• The provision of a 3m high wall, proximate to the common boundary with 666-668 Willoughby Road, will cause significant overshadowing and eliminate natural light to existing living and bedrooms. Further, the wall will limit natural airflow and ventilation.
• The outdoor deck, proposed to be utilised by the childcare centre, was approved as communal open space that was required to be landscaped. This has not occurred as part of the development of The Mint.
• The proposed solid awning over the outdoor play area will be ineffective in reducing the acoustic impacts of the childcare centre. The increase in noise will have an adverse effect on the amenity of the neighbourhood and immediately adjoining neighbours.
• The location of the drop off and pick up parking within the basement will increase traffic through the driveway access and lead to congestion and an increase in the risk of accidents.
• Onsite parking is insufficient, the development will add to traffic congestion in Penshurst Street.
• The childcare centre should have a separate vehicular access.
• That the amenity of the childcare centre will be poor: lack of fresh air, lack of sun for children, inadequate natural play, limited play areas.
• In the event of a fire the evacuation of 80 children is not adequately catered for.
• No air quality assessment has been provided, but the likelihood is that the proposed centre would be impacted from car emissions give the heavy traffic on Mowbray Road.

The Planning Framework

1. Pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), the development application is made with the consent of the owner of the land.
2. As required by cl 77 of the EPA Regulation the development application was notified by Willoughby City Council. Pursuant to s 4.15(1)(e) of the EPA Act, I have given consideration to the submissions received in determining the development application.
3. The site is zoned B5 Business Development pursuant to Willoughby Local Environmental Plan 2012 (LEP 2012). Centre based childcare centres are permissible in the zone. The objectives of the B5 zone are: • To enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres. • To accommodate businesses, provided that their access needs and the traffic generated does not interfere with the safety and efficiency of the road network.
4. As required by cl 2.3(2) of LEP 2011 I have given consideration to the zone objectives in determining the development application.
5. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 ('Childcare SEPP') applies. At cl 3 the aims of the Childcare SEPP are stated as: The aim of this Policy is to facilitate the effective delivery of educational establishments and early education and care facilities across the State by - (a) improving regulatory certainty and efficiency through a consistent planning regime for educational establishments and early education and care facilities, and (b) simplifying and standardising planning approval pathways for educational establishments and early education and care facilities (including identifying certain development of minimal environmental impact as exempt development), and (c) establishing consistent State-wide assessment requirements and design considerations for educational establishments and early education and care facilities to improve the quality of infrastructure delivered and to minimise impacts on surrounding areas, and (d) allowing for the efficient development, redevelopment or use of surplus government-owned land (including providing for consultation with communities regarding educational establishments in their local area), and (e) providing for consultation with relevant public authorities about certain development during the assessment process or prior to development commencing, and (f) aligning the NSW planning framework with the National Quality Framework that regulates early education and care services, and (g) ensuring that proponents of new developments or modified premises meet the applicable requirements of the National Quality Framework for early education and care services, and of the corresponding regime for State regulated education and care services, as part of the planning approval and development process, and (h) encouraging proponents of new developments or modified premises and consent authorities to facilitate the joint and shared use of the facilities of educational establishments with the community through appropriate design.
6. Relevant to the current proceedings, Part 3 of the Childcare SEPP details the specific controls for childcare facilities. Clause 25 of the Childcare SEPP 'calls up' the Regulation with respect to certain non-discretionary standards for indoor and outdoor play space. These standards, if complied with, prevent a consent authority from requiring a more onerous standard. (1) The object of this clause is to identify development standards for particular matters relating to a centre-based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters. (2) The following are non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of a centre-based child care facility - (a) location - the development may be located at any distance from an existing or proposed early education and care facility, (b) indoor or outdoor space (i) for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies - the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or (ii) for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies - the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause, (c) site area and site dimensions - the development may be located on a site of any size and have any length of street frontage or any allotment depth, (d) colour of building materials or shade structures - the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area. (3) To remove doubt, this clause does not prevent a consent authority from - (a) refusing a development application in relation to a matter not specified in subclause (2), or (b) granting development consent even though any standard specified in subclause (2) is not complied with.
7. The Respondent argues that the area of unencumbered outdoor open space is not met by the development application. That requirement, detailed in the Regulation, is: 108 Space requirements - outdoor space (1) This regulation does not apply in respect of a family day care residence. (2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space. Penalty: $2000. (3) In calculating the area of unencumbered outdoor space required, the following areas are to be excluded - (a) any pathway or thoroughfare, except where used by children as part of the education and care program; (b) any car parking area; (c) any storage shed or other storage area; (d) any other space that is not suitable for children. (4) A verandah that is included in calculating the area of indoor space cannot be included in calculating the area of outdoor space. (5) An area of unencumbered indoor space may be included in calculating the outdoor space of a service that provides education and care to children over preschool age if - (a) the Regulatory Authority has given written approval; and (b) that indoor space has not been included in calculating the indoor space under regulation 107. …
8. The requirement for indoor play area is also detailed in the Regulation as: 107 Space requirements - indoor space (1) This regulation does not apply in respect of a family day care residence. (2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 3.25 square metres of unencumbered indoor space. Penalty: $2000. (3) In calculating the area of unencumbered indoor space - (a) the following areas are to be excluded - (i) any passageway or thoroughfare (including door swings); (ii) any toilet and hygiene facilities; (iii) any nappy changing area or area for preparing bottles; (iv) any area permanently set aside for the use or storage of cots; (v) any area permanently set aside for storage; (vi) any area or room for staff or administration; (vii) any other space that is not suitable for children; (b) the area of a kitchen is to be excluded, unless the kitchen is primarily to be used by children as part of an educational program provided by the service. (4) The area of a verandah may be included in calculating the area of indoor space only with the written approval of the Regulatory Authority. (5) A verandah that is included in calculating the area of outdoor space cannot be included in calculating the area of indoor space. …
9. The Respondent argues that the development application requires concurrence of the Regulatory Authority under cl 22 of the Childcare SEPP as the outdoor space requirements for the building or place do not comply with the standards detailed in the Regulation: cl 22(1)(b) of Childcare SEPP. The parties accept that the Court has the power to grant consent in the absence of such concurrence: s 4.13(11) EPA Act.
10. Clause 23 of the Childcare SEPP requires that, before determining a development application for the purpose of a centre based childcare centre, the consent authority must take into consideration the applicable provisions of the Child Care Planning Guideline (the Guideline) in relation to the proposed development. The Guideline referenced at cl 23 of the Childcare SEPP is the Child Care Planning Guideline issued by the Department of Environment and Planning dated August 2017. In determining the application, I have given consideration to the Guideline.
11. Part 2 of the Guideline contains seven overarching design principles. Those principles are context; built form; adaptive learning spaces; sustainability; landscape; amenity; and safety.
12. Part 3 of the Guideline contains a series of matters of consideration. Relevant to the contentions in dispute are the following matters for consideration:

• 3.1 Site Selection: C1: Objectives: to ensure that appropriate zone considerations are assessed when selecting a site. Controls: For proposed developments in commercial and industrial zones, consider: • potential impacts on the health, safety and wellbeing of children, staff and visitors with regard to local environmental or amenity issues such as air or noise pollution and local traffic conditions • the potential impact of the facility on the viability of existing commercial or industrial uses. C2: Objectives: to ensure that the site selected for a proposed childcare facility is suitable for the use. Controls: When selecting a site, ensure that: • the location and surrounding uses are compatible with the proposed development or use • the site is environmentally safe including risks such as flooding, land slip, bushfires, coastal hazards • there are no potential environmental contaminants on the land, in the building or the general proximity, and whether hazardous materials remediation is needed • the characteristics of the site are suitable for the scale and type of development proposed having regard to: - size of street frontage, lot configuration, dimensions and overall size - number of shared boundaries with residential properties - the development will not have adverse environmental impacts on the surrounding area, particularly in sensitive environmental or cultural areas • where the proposal is to occupy or retrofit an existing premise, the interior and exterior spaces are suitable for the proposed use • there are suitable drop off and pick up areas, and off and on street parking • the type of adjoining road (for example classified, arterial, local road, cul-de-sac) is appropriate and safe for the proposed use • it is not located closely to incompatible social activities and uses such as restricted premises, injecting rooms, drug clinics and the like, premises licensed for alcohol or gambling such as hotels, clubs, cellar door premises and sex services premises. C3: Objectives: to ensure that sites for child care facilities are appropriately located. Controls: A child care facility should be located: • near compatible social uses such as schools and other educational establishments, parks and other public open space, community facilities, places of public worship • near or within employment areas, town centres, business centres, shops • with access to public transport including rail, buses, ferries • in areas with pedestrian connectivity to the local community, businesses, shops, services and the like. C4: Objectives: to ensure that sites for child care facilities do not incur risks from environmental, health or safety hazards. Controls: A child care facility should be located to avoid risks to children, staff or visitors and adverse environmental conditions arising from: • proximity to: - heavy or hazardous industry, waste transfer depots or landfill sites - LPG tanks or service stations - water cooling and water warming systems - odour (and other air pollutant) generating uses and sources or sites which, due to prevailing land use zoning, may in future accommodate noise or odour generating uses

1. Further, the Guideline provides guidance as to the application of the Regulations to development applications. Section 4.10 of the Guideline addresses the requirements of the childcare facility in relation to the Natural Environment. The Guideline restates the requirements of the Regulation and provides design guidance as follows: "Regulation: The approved provider of a centre - based service must ensure that the outdoor spaces allow children to explore and experience the natural environment. Design Guidance: … The outdoor space should be designed to: - provide a variety of experiences that facilitate the development of cognitive and physical skills, provide opportunities for social interaction and appreciation of the natural environment. - assist in the supervision and minimise opportunities for bullying and antisocial behaviour. - enhance outdoor learning, socialisation and recreation by positioning outdoor urban furniture and play equipment in configurations that facilitate interaction."
2. Further, at section 4.11 the Guideline provides design guidance on the provision of solar access to outdoor spaces. The guidance states that: "Outdoor play areas should: - have year-round solar access to at least 30 per cent of the ground area, with no more than 60 per cent of the outdoor space covered. - provide shade in the form of trees or built structures giving protection from ultraviolet radiation to at least 30 per cent of the outdoor play area. - have evenly distributed shade structures over different activity spaces."
3. The Willoughby Development Control Plan 2006 (DCP 2006) is relevant but there are some limits to the application of development controls plans under cl 26 of the childcare SEPP, with the Guideline overriding local development control plans in regard to the matters addressed by the Guideline.
4. Section G8 of DCP 2006 contains specific controls for the development of childcare centres. This section of the DCP has the following objectives: "Encourage the provision of child care services in the City of Willoughby to meet the needs of the community. Ensure quality child care facilities in terms of safety and design standards. Ensure child care facilities are designed and located to avoid adverse noise and air quality impacts on occupants. Provide for child care facilities that are complementary to their location and integrated into the local environment. Minimise potential adverse impacts on the surrounding area in terms of noise, traffic generation and car parking."
5. DCP 2006 provides the following considerations in determining site suitability for a child care centre and requires an Applicant to address how the impact of any of these environmental health risks will be mitigated in the proposed development: "The suitability of a site for a child care centre should be determined based on consideration of any environmental health hazard or risk relevant to the site and/or existing buildings within the site or in the surrounding area, having regard to the following:

• Wind tunnels and downdraft created by high rise buildings; - Pollution created by car and other vehicle fumes; - Proximity to LPG tanks; - Existing and potential on and off-site electromagnetic fields (50Hz and radio frequency fields 3KHz - 300GHz); - Contaminated land; - Lead in painted surfaces, carpets, furnishings and roof void in existing buildings; - Asbestos in existing buildings; - Mould and mildew in existing buildings; - Proximity to water cooling and water warming systems that may pose a risk of air-borne contamination; - Proximity to noise sources; - Proximity to odour (and other air pollutant) generating uses and sources; - Potential risk due to flooding or stormwater runoff; and - Any other identified environmental health hazard or risk relevant to the site and/or existing buildings within the site."

1. The evidence refers to Association of Australian Acoustic Engineers Guideline for Child Care Centre Acoustic Assessment (the AAAC Guideline) in the assessment of any acoustic impacts arising from the development.
2. The AAAC Guideline provides noise criteria and sound power level guidance for the assessment of childcare centre. The criteria outlined in the AAAC Guideline are: "Background Greater Than 40 dB(A) - The contributed Leq,15min noise level emitted from an outdoor play and internal activity areas shall not exceed the background noise level by more than 5 or 10 dB at the assessment location, depending on the usage of the outdoor play area. AAAC members regard that a total time limit of approximately 2 hours outdoor play per morning and afternoon period should allow an emergence above the background of 10 dB (ie background +10 dB if outdoor play is limited to 2 hours in the morning and 2 hours in the afternoon). Up to 4 hours (total) per day - If outdoor play is limited to no more than 2 hours in the morning and 2 hours in the afternoon, the contributed Leq,15 minute noise level emitted from the outdoor play shall not exceed the background noise level by more than 10 dB at the assessment location. More than 4 hours (total) per day - If outdoor play is not limited to no more than 2 hours in the morning and 2 hours in the afternoon, the contributed Leq,15 minute noise level emitted from the outdoor play area shall not exceed the background noise level by more than 5 dB at the assessment location. The assessment location is defined as the most affected point on or within any residential receiver property boundary. Examples of this location may be: • 1.5 m above ground level; • On a balcony at 1.5 m above floor level; • Outside a window on the ground or higher floors."
3. The AAAC Guideline and DCP 2006 both require the assessment location for acoustic impact to be the most affected point/location.

Traffic and Vehicular Access

1. In relation to the issues of traffic and vehicular access relevant to the proposed development, the Applicant relies on the expert evidence of Mr Ramy Selim, the Respondent Mr Ken Hollyoak. The experts joint conferenced prior to the proceedings as well as during the proceedings and produced two joint expert reports (Exhibit 11, 12). They were also called for cross examination. The experts agree as a result of the reduction in the number of children proposed for the childcare centre the parking provision will be adequate. The traffic and vehicular access issues that remain unresolved between the experts are:

• The impact of the proposed use of Lot 4 as a childcare centre on the entry point to The Mint building's basement carpark.
• The safety of pedestrians accessing the proposed childcare centre in the basement carpark.
• The impact of providing access from the basement carpark to Lot 4 for the customers of the childcare centre on the overall security of the building.

Impact on the entry point

1. Mr Hollyoak argues that the increase in numbers of vehicles entering and leaving the basement carpark generated by the proposed childcare will increase the potential for conflict between vehicles. I note that the vehicle numbers referenced in his analysis are referrable to 70 children at the childcare centre, rather than the final number of 66. No submissions have been made that this difference is material to the assessment. His evidence is as follows: "KH notes that all of the childcare vehicles will turn right upon entering the site and will conflict with any vehicles coming from other directions. The ROAR traffic count undertaken by RS shows this is between 10 and 17 in the peak hours and less outside these peaks. The childcare [centre] will result in [an] increase in peak hour traffic from no more than 17 at present to an additional 43 in the child care peak hour. This will result in considerably more conflicts which could potentially impact on the safety of pedestrians." (Exhibit 11)
2. Mr Hollyoak maintained his concern in his oral evidence and noted that the existing roller door for the basement car park is of insufficient width to allow for two-way vehicle movement. It was his evidence that the increased vehicle movements from the childcare centre (43) will impact the frequency of delay experienced by existing residents and users of the building and the potential for conflict between vehicles entering or exiting the carpark.
3. In cross examination Mr Hollyoak accepted that the nature of the conflict currently exists, but he argues that the issue is the proposed development will increase the frequency of the occurrence of the risk. Mr Hollyoak concludes that the frequency of the risk arising increases due to the increase in vehicle trips.
4. In the alternative Mr Selim makes the following observations in relation to the access point, concluding that the traffic generated from the childcare centre proposed will have no adverse impacts on the car park, or safety of children, parents or residents (Exhibit 11):

• Access to the childcare centre is proposed through the existing roller door to Basement 1 of Building B.
• That the allocated carparking for the childcare centre is in close proximity to the roller door access and the limited distance of travel will act to reduce congestion in the carpark.
• The ROAR data, which surveyed existing vehicles entering and exiting the roller door, demonstrates that, even allowing for a doubling of existing movements, the additional demand from the childcare centre can be accommodated 'without major issues'. (Exhibit 11)
• That the peak drop off time for children to the childcare centre commences at 7.00am for a two to three hour period. Similarly, in the afternoon it commences at 3.00pm and continues up to 6.00pm. Mr Selim argues '… that the traffic generation peak periods of the childcare centre could be different from the peak periods for other users within the site, such as fitness centre [Anytime Fitness] and/ or a real estate office.' (Exhibit 11)

1. In cross examination Mr Salim was questioned in regard to his conclusion that Anytime Fitness would experience peak demand at times that are different to the peak times of the childcare centre. He confirmed that no assessment or logging had been completed by the Applicant to establish the peak demand for the Anytime Fitness use. Despite this he maintained his view that the demand for the Anytime Fitness use was adequately accommodated by the allocated spaces in the basement and that if demand was greater than these spaces the basement car park providing two turning bays for cars to exit in this circumstance. Further, he maintained the view that if the peak times for Anytime Fitness and the childcare centre were coexistent the entry and design of the carpark was adequate.
2. On behalf of the Respondent Mr Seymour submits that the evidence of Mr Selim that Anytime Fitness and the proposed childcare centre would have different peak times and would not be in conflict is unpersuasive and lacks supporting evidence. Mr Seymour concludes that 'it is a feature of the proposed use that the Access Point and Parking Point will be in concentrated use in the morning and afternoon which is at the same time as the point of concentrated use for the gym..' (Respondent's written submissions, 6 May 2021). Mr Seymour concludes that the Lot 4 is unsuitable for use as a childcare centre since the access arrangements are not satisfactory. He argues that the patrons for Anytime Fitness and the childcare centre will compete for access through the existing roller door, which on Mr Hollyoak's evidence will result in delays for existing residents and users of the building and the potential for conflict between vehicles entering or exiting the carpark.
3. In his submissions Mr Staunton, for the Applicant, emphasises that in his oral evidence Mr Hollyoak accepted that firstly, the driveway, roller door entry and carpark are all low speed environments and secondly, that the existing convex mirror on the external façade would allow vehicles in the driveway or coming from the west to observe other vehicles from those directions. Therefore, his concern regarding conflict is limited to a vehicle turning right not being able to see a vehicle coming from the east. Mr Staunton submits that in relation to this last vehicle movement Mr Hollyoak acknowledged in oral evidence that there 'was in fact a sight line available from a car entering the second roller door to the east which would enable a entering driver to see an oncoming vehicle'. (Applicant's written submissions, 22 April 2021)
4. Mr Staunton concludes that the traffic generated by the proposed childcare centre will not adversely impact on the access point or the entry to Basement B as:

• The access through the second roller door to the commercial car spaces is approved and operating without any evidence of conflict;
• The points of conflict are a low speed environment;
• The traffic generation is not high; and
• There is adequate sight distance. (Applicant's written submissions, 22 April 2021)

Pedestrian safety in the basement carpark

1. Mr Hollyoak notes that control C37 of the Guideline requires childcare centres to have parking that is "separate from other uses, located and grouped together and conveniently located near the entrance or access point to the facility" is not met by the proposed development as the parking is shared with the existing Anytime Fitness facility. He argues that this colocation generates safety issues and potential for conflict between pedestrians and vehicles.
2. Mr Hollyoak is concerned about pedestrian safety in the basement carpark for customers of the childcare centre. In particular he notes that the marked footpath proposed in the basement (see extracted plan below) is located within the swept path of vehicles manoeuvring into and out of designated parking spaces. His evidence is as follows: "KH remains of the view that the swept path of cars leaving the parking spaces opposite would need to traverse this walkway. The cars using the spaces using the spaces opposite are currently used by the Gym [Anytime Fitness] which means that they are higher turnover spaces (which would generally have wider aisles). This means that the potential conflicts would be significantly higher than if the spaces opposite were used by general staff who may only undertake one entry and exit movement per day." (Exhibit 12)
3. Extract of Applicant's swept path analysis:

• Vehicle entering:
• Vehicle exiting:

1. In contrast to Mr Hollyoak, it is Mr Selim's assessment that the proposed line marking pedestrian path in front of the dedicated childcare spaces will be safe and appropriate. His reasoning is:

• it will provide a safe pedestrian access for parents and children between the drop-off and pick-up parking spaces and the entrance door to the childcare centre, notwithstanding it is located within the traffic aisle,
• it will raise the awareness of drivers of the presence of pedestrians in the basement,
• this section of the car park will be signposted as "Shared zone 10km/hr".
• That such arrangements have been implemented in other car parks for mixed use developments such as the Hills Council car park at Norwest which is also shared with a childcare centre and have been approved by Willoughby City Council for basement carparking associated with stand alone childcare centres.

1. Mr Seymour submits that the users of Anytime Fitness will be required to undertake vehicle manoeuvres over the pedestrian access path to access parking at the same time that the path is being utilised by parents and children to access the childcare centre. Further, he argues that the examples of other development relied on by Mr Selim are not relevant as the first basement carpark (the Hills Council carpark) has a wider aisle width which reduces the potential for vehicle and pedestrian conflict and the second example (Willoughby consent for childcare) is not of a mixed used development. (Respondent's written submissions 6 May 2021)
2. In contrast Mr Staunton relies on the concessions made by Mr Hollyoak in cross examination that safety could be increased by: firstly, Anytime Fitness users being made aware of the childcare centre use through signage; secondly altering the line marking of the pedestrian path to blue to distinguish it from a formal pedestrian crossing; and finally that the proposed shared zone could be changed to a speed limited zone. Mr Staunton submits each of these amelioration measures can be incorporated in conditions of consent. He maintains the examples provided by Mr Selim are relevant and that the Court should 'be comfortable that the potential for conflicts between Anytime Fitness and the Childcare Centre will be adequately mitigated'. (Applicant's written submissions, 22 April 2021)
3. Further, Mr Staunton emphasises that the childcare centre will cater for children under six years of age who will be accompanied by an adult and therefore supervised in the carpark, further reducing the risk of any conflict occurring.

Security

1. The final issue in dispute between the traffic experts is the impact of the proposed childcare centre on the security of the remaining commercial tenancies and the residential units within The Mint.
2. Utilising the projected figure of 43 vehicles entering the basement (refer paragraph [35]) to access the childcare drop off and an estimated 30 seconds for the roller door to open after swipe card activation, Mr Hollyoak's argues that the access will be open almost constantly during the peak drop off times of the childcare centre.
3. The Respondent further contends that a safety and security risk will arise from the proposed development as users of the childcare centre will be given access to the second roller door, reducing the security of the building as a whole. This concern was also expressed by residents in their oral submissions, refer [13].
4. In the alternative Mr Selim notes that the roller door access proposed to be utilised by the childcare centre is located away from Penshurst Street and will not be directly visible from that street. Further, he argues that the provision of access to the roller door to users of the childcare centre is not dissimilar to the granting of such access to users of the other commercial spaces, including Anytime Fitness.
5. Mr Daroch, town planning expert for the Applicant, argues that the access relied on by the proposed childcare centre through the roller door in Basement 1 through to Basement 2 will not provide any significant conflict with the existing residential use or the proposed childcare centre use. He argues that:

• The claim that the basement carpark is shared with the 110 residential units is incorrect as the building is designed with two separate basements with two separate access points. Basement level 1 in Building B contains the non-residential parking (including that proposed for the childcare centre), whereas Basement level 2 contains the majority of the residential parking and has a separate entry.
• The proposed childcare centre will utilise the access in Basement level 1. As well as parking for the commercial uses, this level contains the visitor parking for the residential units and the 'majority for residential parking is separated by a security roller shutter'. (Exhibit 7)
• This relationship between the residential and commercial parking is existing (for example it applies to Anytime Fitness) and was approved under the consent for the development as a whole. (Exhibit 7)

1. Mr Seymour submits the security risk identified by Mr Hollyoak is further exacerbated by the need for all uses of the childcare centre be required to be issued security swipe card access to the basement carpark. He argues that this proliferation of security access cards has the potential to further compromise security for the building. (Respondent's written submissions 6 May 2021)
2. In the alternative Mr Staunton submits that the Court would prefer and accept the evidence of Mr Darroch and Mr Selim that the provision of security access to the basement for the commercial tenancies was an arrangement approved in the consent for the development. Further that it is an arrangement that already exists with the current commercial tenancies and will not compromise safety and security for existing residents of the building.

Findings

1. The Respondent argues that the proposed childcare centre will have a detrimental impact on the safety of the existing entry point to the basement parking for The Mint development. I am not persuaded that this contention is made out on the evidence. I accept the evidence of Mr Selim that the basement entry has sufficient capacity to accommodate the further traffic movements generated by the development. Mr Hollyoak does not argue that the entry does not have capacity, but rather the risk of a potential collision (which already exists) will be increased due to the frequency of movements. I do not accept that this risk is material if the mitigation measures proposed by the Applicant are implemented: namely the maintenance of the basement as a low speed environment; and the utilisation by drivers of the existing convex mirror on the outside of the garage. Further, given the delay in the roller door opening, there is a strong likelihood that a vehicle will be required to wait prior to entering the basement, further mitigating any risk of the driver not seeing an oncoming vehicle by reducing entry speed.
2. However, I accept Mr Hollyoak's view that the increased volume of vehicles through the existing roller door, its narrow width and the delay in the opening and closing of the roller door will likely increase the delay experienced by existing vehicles utilising the roller door to access The Mint development. Neither the Applicant, nor the experts, have provided the Court with evidence or estimations of the materiality of this impact. Whilst I accept it is a likely detrimental impact arising from the development, I am not persuaded that on its own it is sufficient to warrant the refusal of the application.
3. I accept the concern raised by the Respondent about the safety of pedestrians accessing the childcare centre, in particular the risk of pedestrians conflicting with vehicles accessing the parking spots designated for Anytime Fitness and the childcare centre. On the basis of the evidence I find that the risk of conflict between vehicles accessing these spaces and pedestrians walking from their vehicles to the entry of the childcare centre is present. So much is able to be determined by a review of the plan extracts at [45]. I accept the evidence of Mr Selim that such a risk can be mitigated, but I am not persuaded that the mitigation proposed by the Applicant is sufficient to lower the risk to an acceptable level. I accept and prefer the evidence of Mr Hollyoak that this risk is exacerbated by the high turnover of vehicles utilising the spaces allocated to the childcare centre and Anytime Fitness which increase the frequency of the risk arising. It is trite to say that the consequences of such a risk are potentially devastating. I find that the risk to safety is a detrimental impact arising from the development relevant to the determination of the overall merit of the application: s 4.15(1) of the EPA Act.
4. Further, I find that the security risk identified by Mr Hollyoak is an adverse impact on the existing residents and commercial users of The Mint development that can and should be mitigated. I am satisfied that the risk identified could be rectified by separate coding of access passes issued for the childcare centre to limit their access to only the basement roller door and the entry door to the childcare centre. Such access passes should not provide access to other secured areas. These requirements could be applied as a condition of consent, which I am satisfied would be sufficient to resolve this concern: s 4.17(1) of the EPA Act.

Acoustic Impact from the proposed development.

1. Acoustic evidence in the proceedings was provided by Mr White on behalf of the Applicant and Mr Cooper on behalf of the Respondent. The experts joint conferenced and produced three joint reports that were tendered in the proceedings as Exhibit 9, 10 and 19. The Applicant's noise assessment of the proposed development (the Noise Assessment Report) was also tendered in the proceedings as Exhibit D.
2. At the conclusion of the joint reporting three issues remain between the experts:

• What the appropriate background noise level is for the southern neighbour;
• Whether acoustical compliance is achieved for the balconies of the residential apartments above the proposed childcare centre;
• The approach to the acoustical calculations; and
• The free field sound power levels.

The proposed developments acoustic impact on the southern neighbour

1. In summary Mr White's position is that the background noise levels experienced by the neighbouring property to the south will not significantly change as a result of the proposed childcare centre for the following reasons:

• The appropriate background noise level for this location has been established in the Noise Assessment Report as 53dB(A).
• Given the location of the site, the background noise level experienced by the southern neighbour is predominately influenced by traffic noise from Willoughby Road which will carry a 'relatively consistent traffic volume during the period when the childcare centre is operational'. (Exhibit 9)
• The development application proposes an acoustic barrier adjacent the boundary with the southern property to mitigate any noise impacts from the outdoor play area.

1. Further, Mr White argues that if the background noise levels are lower for the lower windows of the southern neighbours building, the mitigation measures proposed are sufficient and adequate. (Exhibit 10)
2. Finally, Mr White argues that none of the applicable guidelines or controls require consideration of the effect of the proposed development on the background levels experienced by adjoining properties. (Exhibit 10) In other words consideration of whether works done as part of the development will have a positive impact on the acoustic environment.
3. Mr White concludes that compliance with the noise criteria established in the Noise Assessment Report (rev. 2 January 2021) should be required as a condition of any development consent. (Exhibit 10) The relevant noise criteria for the residential property to the south is 53 dB(A). On Mr White's assessment this criterion is met with 60 children playing in the external play area proposed in the development and the following mitigation measures are implemented: "1. Awning - a solid awning is to be constructed over the play area. The awning is to include construction of the following: (a) A material with a minimum Rw of 30 and include material similar to 6.38mm glass or solid material. (b) 30% of the awning to include an opaque construction with an acoustically absorptive material to the underside of the awning with an NRC of 0.55 or greater. This can include an insulation with a perforated or slatted material for protection or a patented material with a minimum absorption performance of NRC 0.55. 2. Perimeter screening - An acoustic screen is to be installed to the perimeter of the play area. The screen is to include a solid construction including masonry to a height of 2500mm, and an additional 10mm Perspex or 6.38mm laminated glass for a minimum of 2000mm to be included above the masonry screen. The screening is to include a minimum height of 4.5m to the south…" (Exhibit D)
4. The Noise Assessment Report also includes the following management controls to ensure acoustic compliance: "a. The external area is to include no more than 60 children using the external area at any one time. b. The use of the external area should include supervision at all times by staff of the childcare centre. Staff should trained to minimise noise levels generated from children playing wherever practical. c. No use of the external play area is to occur after 6pm. d. The doors and windows of the building construction separating the internal areas from the external play areas are to be closed during periods when the internal areas are being used for play. e. Signs should be (sic) at the entry and exit to the childcare centre should be installed reminding staff and visitors that noise should be kept at a minimum at the entre (sic) and exit to the premises. f. A contact number should be made available to all surrounding receivers such that a register of complaints can be recorded." (Exhibit D)
5. In contrast Mr Cooper identifies the following concerns in relation to the potential acoustic impact to the southern neighbour arising from the development:

• That the lower levels of the dwelling to the south may experience a lower background noise level than that which was recorded by the Applicant's noise logger.
• That the construction of the barriers proposed around the outdoor play area will affect the experience of traffic noise for the property to the south, which could lower the background noise levels they experience.

1. In cross examination Mr Cooper accepted that his concerns in relation to this aspect of the acoustic impact of the development could be resolved if a rating background noise level of 45dB(A) was adopted for the southern property, equivalent to the logged background level for the western boundary of the site. On the basis that the Noise Assessment Report demonstrates that the southern receiver has a modelled noise level of 50dB(A) and that when the noise from the childcare centre is included. This 5dB(A) increase is within the range nominated by the AAAC Guideline, see [33].

The proposed developments acoustic impact on the upper level residential balconies

1. The Noise Assessment Report included a location delineated as the balconies of the residential apartments located above the outdoor play area of the proposed childcare centre. The measured background noise level at this location is 48dB(A) which, by applying the AAAC Guidelines, provides a noise criterion of 53dB(A).
2. In response to the concerns raised by Mr Cooper in joint conference the Applicant undertook further acoustic modelling which was the subject of a further conference of the experts focussed on the potential impacts to the upper level balconies. The output of the Applicant's 'Soundplan' model was also presented to the Court during the proceedings.
3. The dispute between the experts firstly focusses on where on the relevant balconies compliance with the noise criteria is achieved. Mr Cooper argues that the requirements of DCP 2006 to measure the noise impact of a development at the most affected part of the development have not been met by the Noise Assessment Report. Mr Cooper argues that, applying DCP 2006, the most affected part of the relevant balconies is at the balustrade edge, not in the location within the balconies utilised by the Noise Assessment Report. (Exhibit 9) In the alternative Mr White has measured the acoustic impact from the proposed childcare use at a location within the balcony that is likely to be utilised by a resident. In using this approach Mr White relies on the EPA Noise Policy for Industry. The location modelled in the Noise Assessment Report is 1.5m above floor level of the balcony and 500mm within the edge of the balcony. (Exhibit D) Further, Mr Cooper notes that the EPA Noise Policy for Industry does not apply to childcare uses.
4. Mr Cooper further criticises the Applicant's modelling of the noise impact of the proposed childcare centre on the residential balconies on the following grounds:

• That the modelled acoustic impact of the outdoor play area is based on 60 children. However, the amended plan indicates a maximum of 66 children are proposed to be accommodated in the outdoor play area. (Exhibit G) Further, 'the revised plan will reduce the total area of the outdoor play area and increase the sound power level per square metre in the model requiring further modifications to the computer model'. (Exhibit 19)
• The architectural sections included in the Noise Assessment Report indicate that the residential balconies protrude proud from the building façade. This is in fact not the case as the design of the balconies are that they are recessed spaces within the building façade. The location of the balconies within the building will affect the noise measurement and modelling of the impacts.
• The assessment fails to make corrections for the shielding effect of the balustrade or the reflections from the underside of the balcony ceiling.
• That the figures utilised by Mr White in the sample calculations provided in the Noise Assessment Report are incorrect. (Exhibit 10)

1. Mr White maintains his view that firstly calculations are correct and secondly that no noise exceedance will be experienced by the residential apartment balconies located above the proposed outdoor play area. His reasoning is as follows:

• That 'the proposed change to the 3-6 play area includes the internal area of the childcare centre. There is no change to the proposed external play area'. (Exhibit 19)
• The cross section included in the Noise Assessment Report is diagrammatic only. The three-dimensional noise modelling [the Sound Plan modelling] replicates the actual building design.
• 'The assessment of the noise emissions from the play area has included the built environment and openings detailed in the architectural drawings and the recommendations of the Noise Impact Assessment Revision 2. The assessment has included the sample calculations for the potentially greatest contribution of noise as well as the 3-dimensional noise modelling which includes all pathways identified by Mr Cooper'. (Exhibit 10).
• The preceding address the concerns of Mr Cooper that the modelled impacts are not accurate.

Submissions

1. Mr Seymour makes two principal submission in relation to the potential acoustic impact to the upper level residential balconies. Firstly, that Mr White has not demonstrated compliance with DCP 2006 as he has not demonstrated the acoustic criterion is met at the most affected part of the building, the balustrade. Further, that the modelled results prepared by Mr White show the sensitivity between different locations at the balustrade or inside the balcony, with the results demonstrating acoustic noncompliance at the balustrade of the middle unit. In addition, Mr Seymour notes that the modelled results merge the results for the eastern residential balconies by depicting them as a combined space, making interpretation difficult.
2. Secondly, Mr Seymour argues that if the Court accepts Mr Cooper's concerns that the acoustic barriers proposed for the childcare centre will result in the background noise level for the residential balconies being reduced, then the likelihood of non-compliance with the acoustic criterion increases. (Respondent's written submission 6 May 2021)
3. Mr Staunton argues that the evidence establishes that the noise criterion will be met within the balcony area, notwithstanding the development is non-compliant at the balustrade. He submits that, on merit, the outcome is acceptable. Firstly, a person using the balcony is likely to be sitting within the area that is compliant (1.5m above the balcony and 0.5m from the edge of the balustrade). Secondly, that the experts agree that the 1-2 dB non-compliance will be imperceptible.
4. Mr Staunton disagrees with Mr Seymour's submission that the issue of the effect of lowering background noise levels was raised by the Respondent or Mr Cooper in relation to the upper level balconies. Mr Staunton submits that this issue was limited only to the neighbouring resident to the south and is resolved. (Applicant submissions in reply 10 May 2021)
5. In response to Mr Cooper's concern about the number of children utilising the outdoor deck play area, Mr Staunton submits: "The modelling assumed that 70 children would all be playing in the outdoor deck play area at once. This is unlikely given that the amended DA only proposes 66 children, there is a large covered play area that will also be used in conjunction with the outdoor deck area, and the routine in the Operational Management Plan states that a maximum of 60 children will be playing in the outdoor areas at one time (Exhibit C). The modelling has been undertaken to assume the possible theoretical operational conditions of the childcare centre and therefore includes conservative predictions of noise emissions from the centre based on practical operation of the external play area." (Applicant's written submissions 22 April 2021)

The approach to the acoustic calculations.

1. The Respondent argues that the Noise Impact Assessment provides insufficient detail to permit an independent review of predicted levels. In particular the Respondent argues it fails firstly to provide details of the relevant calculations, secondly it does not provide cross sections, and finally it doesnot provide details of the barriers proposed. (Exhibit 1)
2. Mr White disagrees that this is the case, arguing that 'the supplementary report has included the assessment of noise emissions from the proposed child care centre including the required treatments and controls such that noise levels emanating from the site will comply with the relevant noise level criteria. The supplementary report includes the assessment and sample calculations for the noise emissions from the site including the reduction in noise levels resulting from the proposed acoustic mitigations.' (Exhibit 9)
3. Mr White's evidence summarised at [74] is also relevant to the Respondent's contention in relation to the acoustic calculations.
4. Relevantly, Mr White maintains that the results of the Sound Plan Modelling are an independent assessment of the noise generated by the outdoor play area and are not intended to be utilised to confirm the results of the sample calculations. (Exhibit 10)

Submissions

1. Mr Seymour submits that the evidence of Mr Cooper provides a basis for the Court to be concerned that there is a potential that the Applicant may not be able to achieve the acoustic criterion in the absence of an appropriate background noise level, even with appropriate conditions of consent.
2. Further, Mr Seymour submits that it is incorrect for the Applicant to assert that Mr Cooper has failed to establish an error in the modelled or calculated acoustic results. He submits "... this is to reverse the requirement for the Applicant to "address" the impact. Modelled information, or detailed calculations, must be capable for verification to have any use at all." (Respondent's written submissions 6 May 2021) In the absence of the model being verified Mr Seymour argues that the Court should have no confidence in the results.
3. In the alternative, Mr Staunton submits that Mr White's acoustic assessment includes two separate and different methodologies, namely both manual calculations and the Sound Plan model. He submits that small differences in the outcomes of these two assessments is not surprising. Further, he argues that Mr Cooper's criticisms are "based on incorrect assumptions or speculation in relation to either Mr White's 'manual calculations' or the inputs into the Sound Plan modelling." (Applicant's written submissions 22 April 2021)
4. Mr Staunton further criticises the fact that Mr Cooper did not carry out any modelling of his own. Mr Staunton concludes that "Mr Cooper did not impeach the computer modelling nor did he carry out separate modelling or calculations to disprove the results of the mathematical calculations of the modelling." (Applicant's submissions in reply, 10 May 2021)

Free field sound power levels

1. Mr Cooper originally raised concerns about the use of "free field" sound power levels in circumstances were the outdoor place space was partially enclosed. In his oral evidence Mr Cooper accepted that these concerns were resolved, providing that the recommendations of the Noise Assessment Report were included as part of any consent for the development. The relevant recommendations are extracted at [66]-[67] and compliance with these recommendations has been conditioned in the draft conditions of consent.

Findings

1. Pursuant to s 4.15(1)(b) of the EPA Act it is necessary for the Court as consent authority to consider the likely impacts of the development in determining a development application. The likely impacts of a development can be positive or detrimental.

Acoustic impact on southern neighbour

1. Applying the AAAC Guidelines, where outdoor play is proposed for more than four hours a day the criteria is that 'the contributed Leq,15min noise level emitted from the outdoor play area shall not exceed the background noise level by more than 5dB at the assessment location'. (Exhibit 2) Adopting a rating background noise level of 45dB(A) for the southern property would result in a modified noise criterion for this location of 50dB(A).
2. The Applicant accepts the imposition of such a restriction on any consent.
3. By reference to Table 10 of the Noise Assessment Report, the modelled noise level for the southern property is 50dB(A), thereby achieving the modified noise criteria for this location. I am satisfied on the evidence that any acoustic impact on the southern neighbour from the proposed childcare centre will be acceptable, subject to a condition of consent being imposed to ensure that the operation noise level from the childcare use complies with the noise criteria of 50dB(A).

Acoustic impact on upper level residential balconies

1. I accept the submissions of Mr Staunton and the evidence of Mr White that the acoustic assessment provided to the Court includes two separate and different methodologies those being manual calculations and the use of the Sound Plan model.
2. On the basis of the Applicant's Noise Impact Assessment Report and Mr White's evidence the proposed development will result in an exceedance of the nominated acoustic criterion on some of the upper level residential balconies located above the external deck area that forms part of the outdoor play area of the childcare centre.
3. In considering this impact, the Noise Impact Assessment Report makes the following relevant statements: 1. That the attended noise survey noted that the "noise level at the site is dominated by vehicle movements on Willoughby Road". (Exhibit D) 2. That the relevant noise criterion for the upper level balconies is 53dB(A). 3. That, in the sample calculations, the effect of the mitigation measures is applied to the sample calculations to determine the predicted noise at the receiver, in effect "reducing" the noise level of the children playing. 4. The data and assumptions inputted into the Sound Plan model, listed at Section 7.3 of Exhibit D, does not indicate that the Sound Plan assessment includes analysis of the potentially positive effects of the proposed barriers on the background noise levels at the nominated receivers. 5. The extent of compliance with the noise criterion is affected by the height of the residential balconies. The finished level of the proposed outdoor area is RL 88.45. Residential balconies occur at RL 91.95 (3.5m), RL 95.05 (6.6m) and RL 98.09 (9.64m). 6. The noise contour plans, provided at Annexure A of Exhibit 19, demonstrates that at the line of the balustrade, and for a portion of the space within the ground level balconies, the noise criterion of 53dB(A) is exceeded. 7. Two further noise contour plans are provided, noted as being at 6.5m and 9.55m above ground level. These noise contour plans accord with the approximate levels of the first and second floor balconies. At 6.5m all the residential balconies are shown as non-compliant with noise contours of greater than 53dB(A). The noise contours at 9.55m demonstrate approximately 50% of the balcony area exceeds the criterion of 53dB(A).
4. In my view the likely detrimental acoustic impact arising from the proposed development to the upper level residential balconies support the refusal of the development application, both singularly and when considered with the safety impact arising from the basement parking, for the following reasons: 1. Whilst Mr White has chosen the receiver location within the balcony, this is not the measurement location required by DCP 2006 control at Part G8 of the plan. On the evidence the provision is not met. The relevant section of G8 in DCP 2006 states (emphasis added): "Child care centres should be located and designed to ensure sufficient separation from busy roads and rail corridors to avoid adverse noise impacts onto the centre. Centres are to be designed to minimise the noise emitted from the centre to ensure no adverse impacts on the amenity of the surrounding residences. The following standards and criteria are required to be met:

• The use of the premises including indoor/outdoor play areas, traffic on site and mechanical plant shall not exceed the background noise level by more than 5dB at the most affected point on or within any receiving property boundary. - The internal noise levels within indoor play or sleeping areas of the centre, when it is operating shall not exceed an Leq,1hr 40 dB(A). - The intrusive noise onto any outdoor play or activity area of the centre, when it is operating shall not exceed an Leq,1hr 55 dB(A). An acoustic report prepared by a suitably qualified professional is required to be submitted demonstrating that compliance with these requirements can be achieved." 1. Further, the control at G8 of DCP 2006 requires a calculation of all of the cumulative noise generated by the development. The Noise Assessment Report does not make an assessment of any contribution likely from building services, relying on a conclusion that '(a)ll future plant and equipment are to be acoustically treated to ensure the noise levels at all surrounding receivers comply with noise emission criteria detailed within this report'. (Exhibit D) In my view whilst this may be an appropriate approach where the development demonstrated compliance with the acoustic criteria, it is not where the criterion is already exceeded. It is clear that the intent of the control is to ensure that childcare centres do not unreasonably affect proximate residential properties by excessive noise. In my view on the evidence that intent is not met. 2. Further, I am not persuaded that the development application is a reasonable alternative solution to the requirement to maintain no greater than a 5dB exceedance, nor that it achieves the objective of minimising the noise emitted to ensure no adverse impacts: s 4.15(3A) of the EPA Act. 3. I accept Mr Cooper's evidence that the Industrial Noise Policy is not the appropriate guide to assessment of noise impacts arising from childcare centres as they are not an industry nor within the scope of the policy. 4. In addition, the need to consider the potential for the acoustic barriers to result in a lower background noise level was accepted by the experts and the Applicant for the residential property to the south. In my view the evidence supports the same approach being taken for the upper level residential balconies. I am persuaded by Mr Cooper's evidence that the effect of the acoustic barriers proposed to be installed around the external play area as well as the awning proposed over it will act to mitigate the transmission of road noise from Willoughby Road to these receivers. On this basis it is likely that the noise experienced by these residential balconies will further exceed the acoustic criterion of 5dB(A) above background.

1. In conclusion, I am satisfied that the acoustic criterion for the upper level residential balconies is breached and is likely to be more significantly breached if a lower background noise level is adopted. The noise impacts exceed the level recommended by the AAAC Guidelines as reasonable. I am persuaded that this exceedance will reduce the amenity of the balconies for these residents.
2. In consideration of the proposed development, I cannot be satisfied that the potential amenity impacts (from noise) to adjoining residences has been sufficiently addressed and/or mitigated: s 4.15(1)(b) of the EPA Act.

Suitability of the site for a childcare centre.

1. In relation to the suitability of the site for use as a childcare centre the Applicant relies on expert town planning evidence from Mr Andrew Darroch and childcare expert Ms Karen Barnes. The Respondent relies on Ms Ana Vissarion for town planning expertise.
2. I note the submissions of Mr Staunton and Ms Vissarion's oral evidence that she does not have any formal qualifications in childcare. Her assessment of the application against the requirements of the Guidelines and Childcare SEPP is necessarily focussed on compliance with the planning instruments objectives and controls, rather than an assessment on merit applying specific expertise.
3. During the course of cross examination Ms Vissarion informed the Court that she had undertaken consultation with a colleague at Willoughby City Council with expertise in childcare. The legal representatives of the Applicant and Respondent made submissions in relation to this occurrence. In determining the matters in dispute in the proceedings and re-exercising the function to determine the development application for the proposed development I have read and considered these submissions. In my view it is unnecessary to summarise those submissions in detail.
4. Having read and considered the submissions I conclude that in my view Ms Vissarion seeking input from another expert is inconsistent with the Court's Conference of Experts Policy (in particular the requirement for an expert to provide their individual opinion in relation to matters in dispute) and the Directions of the Registrar in relation to adducing expert evidence in the proceedings. Further, the Applicant was not provided the opportunity to question the colleague with whom Ms Vissarion discussed the application as the Respondent did not nominate a childcare expert to participate in the proceedings.
5. I accept the submission of Mr Staunton that Ms Vissarion's breach of her obligations affects the weight that the Court should give her evidence. However, I am not persuaded that the Court should give her evidence no weight given she maintains qualifications in town planning which are relevant to the issues in dispute between the parties.

Outdoor and Indoor play space

1. The delineation of play spaces in the proposed childcare centre is demonstrated in the following plan extract: (Extract of Exhibit G: external deck area highlighted in blue, full extent of outdoor play area indicated in orange)
2. Karen Barnes and Andrew Darroch conclude that, despite the required screening of the outdoor space to mitigate the acoustic impacts, the nominated outdoor play area should not be categorised as 'indoor'. They rely on the opening to the western end of the play space on the external deck area and the 500mm space between the roof and acoustic barrier as providing sufficient air flow and ventilation. The arrangement of the acoustic barriers and the roof over the external deck area is detailed in the following extract: Exhibit B
3. Ms Barnes and Mr Darroch argue that the amended design of the southern acoustic barrier (2.5m block wall and a further 2m of 10mm of Perspex) will provide appropriate amenity to the outdoor play area by way of sunlight and daylight to the space. (Exhibit 7 & 8)
4. By reference to the filed overshadowing diagrams Ms Barnes and Mr Darroch conclude: "12. The extent of glazing on the east, west and southern elevations ensure the penetration of daylight and sunlight into the childcare tenancy. This can be understood by the mid-winter views from the sun which clearly show sunlight penetrating into the internal play areas from 9.00am through 11.00 am. … 14. AD + KB note that the outdoor play area achieves good daylight access, given the separation of the adjoining buildings and direct sunlight access for the full eight hours during summer … … 16. It is apparent from the extracts below and the full set of monthly views from the sun that solar access to the outdoor play area is achieved for more than 8 hours a day between October and February. 17. Consequently, AD + KB are of the opinion that the solar access and daylight achieved for the proposal with the agreed amendments is satisfactory and offers a high level of all-round amenity for the children." (Exhibit 7, emphasis added)
5. In the final supplementary joint report Ms Barnes and Mr Darroch maintain their view that the outdoor play area will receive direct sunlight in the south west corner between 11.30 and 1.30 in mid-winter and full sun from November to January. (Exhibit 18)
6. Ms Barnes and Mr Darroch accept the proposed development does not meet the requirement at 4.11 of the Guideline to have 30% of the ground area of the outdoor space achieving year-round solar access. In support of the non-compliant solar access to the outdoor space Ms Barnes and Mr Darroch argue the following positive aspects of the location should be considered as balancing the variation to the guideline on solar access:

• The guideline applies across NSW;
• The subject site benefits from good locational characteristics: being an educational hub, and are of high public transport, and in close proximity to employment.

1. In relation to the quality of the entirety of the outdoor play area Ms Barnes and Mr Darroch's evidence can be summarised as:

• The outdoor play area is compliant with the area requirements for 66 children.
• The design incorporates high quality landscaping with extensive skylights, natural ventilation on each edge of the pergola and open to the west.
• The veranda and pergola both have ceiling heights well in excess of the 2.1m minimum varying between 2.65m - 2.9m.
• The proposed landscaping to the outdoor space is a high quality providing a range of floor types and textures intended to mimic the uneven surfaces of the outdoor environment. They note that the outdoor play area includes "sand pits and water play areas and furniture and climbing area made of logs and stepping logs. The proposal includes dense indoor planting and green vegetated walls, climbing frames, walking and/or bike tracks, vegetable gardens and gardening tubs." (Exhibit 18)

1. Ms Vissarion does not contend that the amended development does not comply with the unencumbered outdoor play area or indoor play areas required under the Guideline for the 66 children proposed.
2. Further, it is her evidence that the amended plans, which include an increased setback to the southern neighbour (3.8m) will improve the solar access and amenity to the neighbours dwelling to an acceptable level.
3. However, Ms Vissarion argues that the site is not suitable for the proposed development. Her reasoning is as follows:

• Its southern orientation, its ground floor location and the amount of enclosure provided to the outdoor play area will mean that the childcare centres play areas will receive limited sunlight penetration. She argues this is exacerbated by the depth of the indoor areas proposed. (Exhibit 7)
• The use will generate potential traffic conflicts in the basement which is shared with other commercial uses and the existing residential apartments. (Exhibit 7)

Findings

1. In relation to the evidence given by Mr Darroch and Ms Barnes, summarised at [110] I note that by reference to the architectural plans, no skylights are indicated in the design of either the indoor or outdoor play spaces. (Exhibit G) Further, despite the references in the evidence of Mr Darroch and Ms Barnes neither the architectural nor landscape plans indicate the use of 'green walls' are proposed within the outdoor play space. Finally, I am not persuaded that the planting proposed, dominated by plants that have an average height of 0.1- 0.6m, can be appropriately characterised as 'dense'.
2. By reference to the architectural plans, extracted at [104], approximately two-thirds of the nominated outdoor play area will be contained within the existing building with the remaining portion located on the external deck area. I accept that the area provided for unencumbered outdoor play area meets the requirements of cl 108 of the Regulation.
3. Each of the indoor play areas comply with the area requirements of cl 108 of the Regulation. None of the indoor play areas have external windows, either being setback from Willoughby Road by some 3.5m or a distance of between 5.3m and 10.8m from the external façade of the building. The Acoustic Assessment Report requires any openings to these indoor play areas to be closed during use.
4. I disagree with Ms Barnes and Mr Darroch that the quality of the outdoor play areas being 'outdoor' is achieved by the limited opening provided between the 4.5m high acoustic high acoustic barrier and the enclosing acoustic/ pergola roof structure. In my view, a 500mm gap between this roof and the walls of the external deck space does not achieve air movement or ventilation nor does it achieve the intent of section 4.9 of the Guideline to provide 'outdoor' play space. My reasoning is as follows:

• The Guidelines make it clear that for a veranda to be included in 'outdoor space' as required by s 4.9 it must: "Verandahs as outdoor space Where a covered space such as a verandah is to be included in outdoor space it should: - be open on at least one third of its perimeter - have a clear height of 2.1m - have a wall height of less than 1.4 metres where a wall with an opening forms the perimeter - have adequate flooring and roofing - be designed to provide adequate protection from the elements (refer to Figure 8)."
• The external deck area proposed by the Applicant does not meet these requirements, with the exception of the having a clear height of 2.1m.
• Based on the evidence before the Court the awning/ pergola roof is required to balance three objectives: acoustic mitigation, daylight access to the external deck area, and privacy mitigation to prevent overlooking from the upper level residential balconies to the external deck area.
• As can be seen in the extract of the architectural cross section at [105], without some screening or opacity in the awning/pergola roof the residents of the upper floor balconies will have a clear view into the external deck area of the outdoor play area.
• The note on the architectural plans about the materiality of the acoustic/ pergola roof structure states: 'Awning above to reduce visual impact and meet (sic) acoustic requirements proposed by acoustic requirements proposed acoustic eng. (sic) solid construction eg. glass, FC sheet, metal deck roofing or similar'. (Exhibit B)
• The acoustic requirement for the acoustic/ pergola roof structure is detailed at [66].
• Based on the above references in the architectural plans, if approved, there is no definitive requirement for the acoustic/ pergola roof structure to be transparent.
• The proposed development does not resolve the tension in the design of the awning/pergola roof between the requirements for acoustic mitigation, daylight access and privacy, instead deferring these to be balanced and resolved post consent. Given the potential for adverse impacts I am not satisfied that it is appropriate for the design and specification of the awning/pergola to be deferred as to do so does not allow the actual impacts of the proposed development to be assessed.
• Neither the Childcare SEPP nor the Guideline provide a definition of 'outdoor space'. The Macquarie Dictionary defines outdoors as: '1. outdoors: in the open air. 2. the outdoors: the world outside buildings'.

1. Further, I am not persuaded that the outdoor play area will receive appropriate solar access or that a variation to the requirement is warranted in the circumstances of this development proposal. At section 4.11 the Guideline provides design guidance on the provision of solar access to outdoor spaces. The guidance states that: "Outdoor play areas should: - have year-round solar access to at least 30 per cent of the ground area, with no more than 60 per cent of the outdoor space covered. - provide shade in the form of trees or built structures giving protection from ultraviolet radiation to at least 30 per cent of the outdoor play area. - have evenly distributed shade structures over different activity spaces."
2. The Applicant acknowledges that the development as proposed does not achieve the requirements in the Guideline. I do not accept that the elements proffered by Ms Barnes and Mr Darroch are sufficient to warrant a variation of the standard.
3. Further, the solar access analysis and assessment undertaken by Ms Barnes and Mr Darroch relies on the assumption that the acoustic/ pergola roof structure will be glazed. As noted above this is not a certain outcome when reference is made to both the architectural plans and the Noise Assessment Report for which consent is sought. There is potential that the solar access to the outdoor play are may be substantially less based on the roofing material chosen and the inconsistency between the architectural plans and the landscape plan discussed in the following.
4. Finally, due to the late change to the floor plan of the childcare centre, the landscape plan does not accord with the architectural plans. This creates the following uncertainties that the outcome envisaged by the landscape design can be achieved:

• Area 3, in the eastern portion of the play area, nominated on the landscape plan as a raised vegetable patch is the current location of the reception area on the architectural plans. The same conflict of uses applies to the timber climbing walls which are also proposed in the same location as the reception area. It is unclear if these facilities are proposed to be deleted or accommodated elsewhere in the nominated outdoor play area. Given the overall reduction in play area between the landscape plan (513m²) and the architectural plans for which consent is sought (464.25m²) a cautious approach, in the absence of evidence on these conflicts, would be not to rely on the provision of these facilities in the assessment of the outdoor play space.
• The viability of the proposed plantings for the outdoor play space indicated on the landscape plan, given the increased setback of the play area from windows fronting Willoughby Road. Further, the removal of play spaces number 12 and 3 (replaced by Reception) which had direct sunlight access. The reduction in solar access to the planting proposed in the outdoor play area has the potential to reduce their viability and role in softening the play space and its ability to meet the objective of the Regulation to allow children to explore and experience the natural environment.

1. In my view, these three factors make the outdoor play space proposed by the Applicant unsatisfactory, even if consideration is given to the positive benefits derived by the good locational characteristics of the subject site. In my view these characteristics do not outweigh the lack of solar access. In my assessment the quality of the outdoor play area able to be provided on the site in the development as proposed by the Applicant is symptomatic of the lack of suitability of the site for a childcare centre: s 4.15(1)(c) of the EPA Act.
2. The Applicant does not seek approval of the outdoor space as a simulated outdoor space in its entirety as detailed at section 4.9 of the Guidelines. Simulated outdoor environments are described as internal spaces that have all the features and experiences and qualities of an outdoor space. If the outdoor play space proposed is characterised as a simulated outdoor space given its internal nature, I would not be persuaded it was satisfactory on the following grounds: 1. The Guidelines nominate that such simulated outdoor space should have 'more access to natural light and ventilation than required for an internal space through large windows, glass doors and panels to enable views of trees, views of the sky and clouds and movement outside the facility'. This is not a characteristic of the proposed outdoor play area. My comments at [117] are relevant here. 2. Further, the Guidelines nominate that such simulated outdoor environments should have skylights, which while referenced in the evidence of Ms Barnes and Mr Darroch, are not indicated on the architectural plans. 3. Finally, the Guidelines also nominate that such simulated outdoor space should incorporate 'dense indoor planting and green vegetated walls'. My comments at [118] are relevant here.

Conclusion and orders

1. At the conclusion of my assessment and evaluation I find that the Applicant's development application for a childcare centre on the subject site should be refused on three grounds. Firstly, that there exists a risk to pedestrian safety which is a detrimental impact that arises from the proposed development: s 4.15(1)(b) of the EPA Act. Secondly, that there is a likely detrimental acoustic impact arising from the proposed development to the upper level residential balconies of The Mint: s 4.15(1)(b) of the EPA Act. Thirdly, that the outdoor play space proposed by the Applicant is unsatisfactory and is symptomatic of the lack of suitability of the site for a childcare centre: s 4.15(1)(c) of the EPA Act.
2. Whilst the Respondent raises other contentions in the proceedings, given the preceding conclusion I am satisfied it is not necessary to address these contentions as I have concluded that the development warrants refusal on the nominated grounds.
3. The Court orders: 1. The Appeal is dismissed, 2. Development Application DA/2019/12 for use of the ground floor tenancy 4 of The Mint shop top housing building at 678 Willoughby Road, Willoughby for the operation of a childcare centre for 66 children is refused. 3. The exhibits are returned with the exception of Exhibit A, G and 1.

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