Omid Mohebati-Arani v Ku-ring-gai Council - [2017] NSWLEC 143 - NSWLEC 2017 case summary — Zoe

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Omid Mohebati-Arani v Ku-ring-gai Council

[2017] NSWLEC 143

Land and Environment Court (NSW)|2017-07-20|Before: Robson J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-07-20

Before

Robson J

Catchwords

(2004) 138 LGERA 237 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Super Studio v Waverley Council [2004] NSWLEC 91
(2004) 133 LGERA 363 Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256

Source

Original judgment source is linked above.

Catchwords

(2004) 138 LGERA 237 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Super Studio v Waverley Council [2004] NSWLEC 91(2004) 133 LGERA 363 Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256

Judgment (33 paragraphs)

[1]

Judgment

The applicant, Mr Omid Mohebati-Arani, commenced these Class 1 appeal proceedings under s 97(1) of the Environmental Planning and Assessment Act 1979 (NSW) ('the Act') on 17 October 2016. The appeal relates to the deemed refusal of Ku-ring-gai Council ('Council') of a development application lodged with Council on 27 July 2016 for the demolition of an existing dwelling house and the construction of a single storey child care centre with basement level parking ('proposal') at 24 Bayswater Road, Lindfield ('the site').
The hearing proceeded initially for three days on 18, 19 and 20 July 2017 ('initial hearing') and, as a result of legislative changes discussed below, the matter came back before the Court for further hearing on 16 October 2017 ('further hearing'). The Court received extensive evidence, comprising background material and detailed expert and lay evidence. A view of the site and the surrounding area was also undertaken on the first day of the initial hearing.
For the reasons that follow, I have determined that the appeal should be upheld and development consent should be granted subject to conditions.

[2]

Background

The proposal involves the demolition of an existing brick dwelling with a tiled roof and related structures and the construction of a single storey building comprising a child care centre above a basement level car park. The child care centre will provide services including staff and client car parking. The site is rectangular in shape with a frontage of approximately 30m to Bayswater Road and a depth of approximately 43m, with an area of approximately 1,327m². Child care centres are a permissible form of development on the site pursuant to the Ku-ring-gai Local Environmental Plan 2015 (NSW) ('LEP').
On 23 November 2016 Council filed a Statement of Facts and Contentions raising a number of contentions said to warrant refusal of the application including streetscape impacts, traffic impacts, acoustic impacts, visual amenity, solar access, tree viability, landscape character, public interest and non-compliance with various provisions of the Ku-ring-gai Development Control Plan 2016 (NSW) ('DCP').
As a result of amended plans and supporting material ('amended application') filed by the applicant by leave of the Court given on 10 March 2017, Council filed an Amended Statement of Facts and Contentions on 12 April 2017 which reduced the previously raised issues down to the suitability of the site with respect to traffic impacts and local residential amenity. At hearing, as a consequence of further expert traffic engineering evidence (considered below), Council no longer pressed its traffic concerns.
There has been significant community opposition to the proposal. When the original proposal application was advertised and notified on 5 August 2016, Council received approximately 212 submissions. When the amended application was renotified on 24 March 2017, Council received a further 134 submissions.
The second respondent, the Loyal Henry Community Association Inc ('the Association'), a group of concerned neighbours from the precinct adjoining Loyal Henry Park in Lindfield, was joined as a respondent by order of Moore J on 14 June 2017. The joinder was allowed on the grounds that, as a result of the amended application, Council was not raising a number of matters that the Association wished to ventilate. Material before the Court shows that the Association represents over 100 households from the streets surrounding the Loyal Henry Park, and has over 178 email contacts on its database. The Association derives its name from the local park located in close proximity to the proposal.
In its Statement of Contentions filed on 15 June 2017, and as expanded upon in opening submissions, the Association raises contentions in relation to five aspects of the proposal. The Association claims, first, that the location of the proposal is not suitable for a child care centre; second, that the design of the proposal will result in adverse impacts on neighbouring properties; third, that the proposal would result in excessive noise impacts on nearby residential properties; fourth, that the proposal would have an adverse impact on the Bayswater Road streetscape; and fifth, that the proposal requires extensive excavation which will have an adverse impact on the neighbouring properties. Overall, the Association maintained that the proposal was not in the public interest.
Before considering the substantive issues in the proceedings, given the recent changes to certain planning instruments, it is useful to have regard to the relevant instruments governing the proposal. I will then proceed to set out the expert evidence, noting that the experts were largely in agreement in relation to the traffic, noise, and geotechnical impacts of the proposal, with the primary area of contention being in relation to the town planning aspects of the proposal. After setting out the evidence, I will then consider the submissions of each of the applicant, Council and the Association, before setting out my consideration and findings.

[3]

Relevant planning instruments

At the time of the initial hearing, the relevant controls included the Act, the LEP, the DCP, the Draft State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 ('Draft SEPP') and the Draft Child Care Planning Guideline 2017 ('Draft Guideline'). Relevantly, on 1 September 2017 after the initial hearing, the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 ('SEPP') commenced and the Child Care Planning Guideline (Delivering Child Care for NSW) ('Child Care Guideline') was published.
The site is zoned R2 - Low Density Residential ('R2 Zone') under the LEP and child care centres are a permissible use in that zone. The R2 Zone has objectives including first, to provide for the housing needs of the community within a low density residential environment; second, to enable other land uses that provide facilities or services to meet the day to day needs of residents; and third, to provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai. It is relevant to note that the proposal complies with development standards in the LEP, including cll 4.3 and 4.4 in relation to height and floor space ratio.
The DCP provides relatively specific design guidelines and controls for child care centre developments within "Part 10 - Child Care Centres". The evidence before the Court considers a number of discrete clauses of the DCP including Pt 10A (Site Design), which deals with location, site planning, landscaping; Pt 10B (Access and Parking), which deals with vehicle access and parking, and accessibility; and Pt 10C (Building Design and Sustainability), which deals with solar access and ventilation, noise, indoor play spaces, back up facilities, staff and parent accessible areas, outdoor play spaces, and other related management controls. The DCP also has some specific controls (in particular Pt 23 (Building Design and Sustainability) which relate to waste management control, stormwater quality control during construction, and erosion and sediment control.
At the time of the initial hearing the Draft SEPP and Draft Guideline had been notified and publicly exhibited from 4 February to 24 March 2017. Accordingly, there was a debate between the applicant and the Association as to the certainty and imminence of the Draft SEPP and Draft Guideline, with the Court receiving evidence that the Draft SEPP may be made towards the end of 2017. As noted above, the SEPP and Guideline commenced on 1 September 2017. As a consequence, while judgment was reserved following the initial hearing, the applicant filed a Notice of Motion on 5 October 2017 seeking leave to re-open the proceedings in relation to the SEPP and the Child Care Guideline. At the hearing on the Notice of Motion on 16 October 2017, the Court granted leave and received further evidence and submissions as to the relevance and application of both the SEPP and the Child Care Guideline.
Although the Court received detailed evidence and submissions at the initial hearing in relation to the Draft SEPP and the Draft Guideline, given the commencement of the SEPP and the Child Care Guideline, there was further debate between the parties, more particularly between the applicant and the Association, as to the manner in which the Court should now consider the SEPP and the Guideline.
Having heard submissions and considered the material, I find that the SEPP having been made would ordinarily be a relevant consideration in determining the proceedings pursuant to s 79C(1)(a)(i) of the Act, however the SEPP contains a "Savings provision" in cl 1(1), Sch 5 which provides:

[4]

Savings provision (1) This Policy does not apply to or in respect of the determination of a development application made under Part 4 of the Act, but not finally determined before the commencement of this Policy. (2) Despite subclause (1), before determining a development application referred to in that subclause for development for the purpose of a centre-based child care facility, the consent authority must take into consideration the regulatory requirements and the National Quality Framework Assessment Checklist set out in Part 4 of the Child Care Planning Guideline, in relation to the proposed development.
At the further hearing, the Association's position was that the clear wording of the savings provision in cl 1(1), Sch 5 ("this policy does not apply...") is determinative, and that accordingly no weight at all should be given to the SEPP. The applicant's position was that the SEPP is a relevant consideration pursuant to s 79C(1)(a)(i) of the Act, however the subject development is "saved" from the application of the SEPP due to cl 1(1), Sch 5 of the SEPP, subject to the exception contained in subcl (2). In the circumstances, the applicant, to some extent supported by Council, submits that the SEPP should be given significant but not determinative weight, and should be treated in a manner similar to a draft instrument which is "imminent and certain". In relation to the Child Care Guideline, the applicant's position is that, pursuant to cl 23 of the SEPP, it is a mandatory relevant consideration for the Court.
It was common ground between the parties that the Draft SEPP and Draft Guideline were not to be considered by the Court.
I note there is an element of ambiguity in the precise relationship between subcll (1) and (2) of cl 1, Sch 5. However, I am conscious that planning instruments are not always drafted with pellucid clarity, and the Court should assume that the clauses are intended to enact sense and not nonsense.
Having considered the submissions, I find that, while the SEPP would ordinarily be a relevant consideration pursuant to s 79C(1)(a)(i) of the Act, the SEPP does not to apply in relation to development applications such as the one currently before Court. This is made evident by the use of "clear language" in cl 1(1), Sch 5 of the SEPP, which, contrary to the legislation under consideration by Pepper J in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142, does preclude consideration of the SEPP.
I am comfortable however that, because of cl 1(2), Sch 5 of the SEPP, the Court is required to take into account Pt 4 of the Child Care Guideline, which incorporates part of the Education and Care Services National Regulations ('National Regulations') and includes the National Quality Framework Assessment Checklist ('Checklist').
I accept the parties' submission that the Draft SEPP and Draft Guideline, given the enactment of the SEPP and Child Care Guideline, are no longer relevant considerations for the purposes of these proceedings. I note however that there is significant overlap between the matters elucidated in the Draft Guideline, the DCP and the Child Care Guideline, such that despite the parties having made their initial submissions on the basis of the Draft Guideline and DCP, I am satisfied that there is sufficient evidence before the Court to be able to appropriately consider and apply the Child Care Guideline.

[5]

Evidence and conduct of hearing

At the initial hearing in July, the applicant was represented by Mr T To of counsel, Council was represented by Mr J Merlino, and the Association was represented by Mr J Johnson of counsel. At the further hearing in October the applicant was represented by Mr A Knox, Council was again represented by Mr J Merlino, and the Association was represented by Mr C Gough.
The hearing commenced on site where, during inspection of the site and surrounding area, a number of local objectors gave oral evidence, including Mr D Castle, Ms R Cuschieri, Ms S Gale, Ms L Ng, Mr E Kwan and Mr C Robertson. Each of the objectors spoke to their earlier written objections which had been provided to the Court, and each provided further documentary material, including speaking notes and photographic and other diagrammatic representations articulating their various concerns.
The applicant's documentary evidence comprised the amended application which included architectural plans, landscape plans, civil engineering plans, stormwater plans, and survey plans. The applicant also relied on a Supplementary Statement of Environmental Effects and further expert material including a noise assessment report, geotechnical report, traffic and parking assessment report, operational plan of management, and a waste management plan.
Council's evidence comprised an extensive bundle of documents, a joint expert traffic report, as well as aerial photographs of the locality.
The Association's documentary evidence included the speaking notes of the residents used during their oral presentations during the site visit. Without any disrespect to those objectors who gave considered evidence, I do not detail the individual concerns save to note that I have considered, extensive material from the objectors comprising over 900 pages. The issues raised in the extensive written submissions were substantially raised in both Council and the Association's contentions, and included specific concerns regarding demolition of the existing dwelling, the extent of excavation for the basement car parking, traffic and safety impacts on local streets and intersections, parking arrangements, tree removal impacts, acoustic impacts and non-compliance with various planning controls.
The Court also received an expert joint town planning report prepared by Mr Dan Brindle, retained on behalf of the Association and Mr Eugene Sarich, retained on behalf of the applicant. That report addressed each of the contentions raised by the Association (apart from noise impact). Mr Brindle and Mr Sarich also gave oral evidence. Further, as considered below, the Court also received an expert joint traffic report, an expert joint noise report, and an expert geotechnical report.
Given the issues raised in the proceedings, it is useful to set out the experts' evidence and then consider the remaining contentions. In summary, after joint conferencing it became clear that the experts providing evidence in relation to the traffic and noise impacts of the proposal agreed that these impacts could be appropriately managed. The expert geotechnical evidence establishing the same was also unchallenged. Accordingly, in relation to the expert evidence, the only remaining issue in contention was therefore in relation to town planning matters.

[8]

Noise

The contentions regarding noise related to concerns from neighbouring residents in relation to noise likely to be generated from the proposal and, in particular, the outdoor play areas, indoor play areas, the ancillary spaces including the kitchen and office and the excavation of the basement car park. Although Council withdrew its contention regarding likely acoustic impact, it remained a primary issue for the Association and was raised in many of the objections. The Association's contentions stated that noise levels would be in excess of the control in the DCP at Pt 10C.2 (Noise), and the criteria in the Draft Guideline.
The Court received detailed acoustic evidence including an Environmental Noise Assessment Report dated 24 February 2017 prepared by Mr Adam Shearer, the applicant's acoustical consultant, and a joint acoustic report (Exhibit J) prepared by Mr Shearer and Mr Thomas Taylor, an acoustic expert retained for the Association. Mr Shearer and Mr Taylor also gave oral evidence.
The joint report detailed the discussions and agreement between the experts, and their consideration of the noise controls in DCP 2015, the Draft Guideline and the NSW Environment Protection Authority Industrial Noise Policy.
The joint report addressed the three areas of possible exceedance of acoustic guidelines, being the rear yard of 26 Bayswater Road, the eastern façade of 26 Bayswater Road and the rear yards of 33, 35 and 37 Thomas Street, and considered proposed noise amelioration measures. In relation to 26 Bayswater Road, it was similarly agreed that by maintaining a proposed 2.5m high acoustic screen, limiting the number of children permitted outside (on the site) at any one time to 14, and closing the west-facing windows of the Indoor Play Area 3, a compliant noise level could be achieved. In relation to 33, 35 and 37 Thomas Avenue, it was similarly agreed that with the proposed 2.5m high acoustic screens and placing a limitation on the number of children permitted outside at any one time, compliant noise levels would be achieved at all points within the backyards of these properties.
The experts also proposed a number of further conditions as detailed in the joint report, including the use of noise absorptive lining, requiring that the basement car park not be used prior to 7am, and requiring that a detailed acoustic design of any mechanical plant be undertaken prior to the issue of a construction certificate. There were also a number of suggested conditions in relation to the noise management of "special events" where the number of people attending the child care centre may be increased.
In relation to the Association's concerns regarding the amenity impacts arising from the nature and extent of excavation of the car park, the acoustic experts agreed that this could be managed by, prior to the release of a construction certificate, requiring a Construction and Noise Vibration Management Plan to be prepared in accordance with the NSW Department of Environment and Climate Change Interim Construction Noise Guideline, and the NSW Department of Environment and Climate Change document, "Assessing Vibration A Technical Guideline" and German Standard DIN4150-3 (for building damage).
Accordingly, it is clear that there is agreement between the noise experts that, with the adoption of the particular conditions of consent detailed by the experts, the noise emissions in relation to the surrounding residential properties are able to be adequately managed and there would be appropriate compliance with the noise levels stipulated in Pt 10C.2 (Noise) of the DCP (being the background plus 5dB(A)).
While the noise experts agreed that any noise impacts could be made compliant with the DCP, the Association raised a concern that even with the amelioration measures suggested by the experts and agreed to be adopted by the applicant, the proposal would result in noise levels in excess of the draft design criteria in Pt 3I of the Draft Guideline. It was agreed between the experts that, if the Draft Guideline was adopted in the form as before them, there would need to be significant further acoustic controls imposed on the proposal in addition to those presently proposed, including boundary fencing of over four metres high. Further, all indoor play areas would be required to keep their windows closed during periods of active play.
However, the experts agreed, for the reasons detailed at p 5 of the joint report that the Draft Guideline should not be adopted in any acoustic analysis of the site, "as the experts concluded that the acoustic requirements were not in line with standard practice, and would not be adopted in their current form". They were cross-examined at length by Mr Johnson in this regard and maintained that the Draft Guideline should not be applied. It is relevant to note that the Child Care Guideline, published on 1 September 2017, did not adopt the design criteria in Pt 3I of the Draft Guideline.

[11]

Design and streetscape (3)In relation to streetscape, Mr Brindle considered that the proposal had an adverse impact on the streetscape and character of the area, whereas Mr Sarich opined that there was no significant effect on streetscape or character. (4)The experts addressed Pt 10A.2 (Site Planning) controls in the DCP, with Mr Sarich maintaining that the proposal satisfied the requirements in all respects, while Mr Brindle disagreed. The experts agreed that, when considering whether the proposal satisfies the objectives of Pt 10A.2 (Site Planning), relating to the integration of child care centres by reference to the scale and character of surrounding areas, it is necessary to consider controls regarding side setback and landscaping. However, while agreeing that this was the appropriate framework, they disagreed on whether the proposal complied with the side setbacks and whether the landscaping was consistent with adjoining residential development. (5)Mr Brindle opined that Bayswater Road had a particular streetscape character largely as a result of residential development primarily on the southern side of Bayswater Road, and that the proposal would be inconsistent with that character. Mr Brindle further opined that this incompatibility was accentuated by the "modern building vernacular" of the proposal and the size of the proposed driveway. Mr Sarich opined that given that the side setbacks of dwellings in Bayswater Road and nearby streets are not of a regular pattern, the side setbacks of the proposal do not render it incompatible with adjoining and surrounding development, primarily because the single storey design of the proposal is more important in its interpretation from the street than in relation to setbacks. Accordingly Mr Sarich stated that the building will "read as a single storey building with a compatible bulk and scale". Apart from this, Mr Sarich considered the side setbacks to be "generous" and noted particularly that the northern side setback was between 3.2m and 4.5m and the southern side was 3m. Further, he opined that the detailed landscape plans before the Court indicated an acceptable soft landscaped appearance on the front setback from the street, which was interrupted only by a driveway and an entry path. (6)The experts also considered and gave evidence in relation to the discrete "Design Criteria" in the Draft Guideline regarding the "building envelope", "landscaped area", "local character and context", "pedestrian and vehicle access", "public domain interface", "orientation", "visual privacy" and "form and articulation". In relation to a number of the concerns of the neighbouring objectors, the experts concluded that the proposal does not have significant adverse overlooking impacts, and that it satisfies the design criteria pursuant to "visual privacy". The experts also agreed that the proposal satisfies the design criteria in relation to "pedestrian and vehicle access". (7)The experts disagreed in relation to all the remaining design criteria in the Draft Guideline for the same reasons outlined above. Mr Brindle maintained his view that side setbacks were inappropriate and that the amount of hard paving areas (particularly in the front setback) led to the proposal being incompatible with the character of the streetscape. Mr Sarich considered that the proposed landscape treatment (including the provision of trees) would result in the proposal being compatible with the locality.

[15]

Applicant's position

The applicant submits that the proposal has undergone significant refinement since Council's earlier contentions and the Court would be comfortable that there is no issue, at least raised by Council, that would preclude consent being granted.
To the extent that a number of the resident objections received raised concern in relation to traffic matters, the applicant submits that the Court would recognise that the objectors' concerns are based on their predictions of future use, and that these concerns are allayed by the evidence of the traffic experts, who agree that the probability of vehicles travelling towards the cul-de-sac at the western end of Bayswater Road would be significantly low.
In relation to acoustic concerns, the applicant submits that there will be compliance with the DCP requirements, with this being set out in Pt 10C.2(1) (Noise) as being background plus 5dB(A), as well as the NSW Environment Protection Authority Industrial Noise Policy. Whilst there was some suggestion in the initial hearing (i.e. before the making of the SEPP and Child Care Guideline) that the more stringent criterion in the Draft Guideline at Pt 3I (Acoustic Privacy) should apply, being that the noise level should not exceed background by more than 3dB "in any Octave Band Centre Frequency", the applicant at the initial hearing submitted that the Court should accept the noise experts' opinion that this type of criterion is to be applied to nightclubs and the like, not child care centres. The applicant reminded the Court that the agreed position of the noise experts was that the acoustic guidelines in the Draft Guideline were not appropriate to be adopted. In any event, despite the fact that s 79C(1)(a)(ii) of the Act requires draft instruments to be taken into consideration, the applicant submitted at the initial hearing that the Court would not place significant weight on this matter as, in the applicant's view, the Draft SEPP (and Draft Guideline) were neither certain nor imminent. Given the later course of events, at the further hearing the parties agreed that the Court could not give any weight to the Draft SEPP and Draft Guideline.
In relation to zoning, the applicant submits that child care centres are specifically permitted in an R2 Zone and the proposal conforms to the relevant zone objectives. While the Association concentrates on the second objective relating to the provision of "facilities or services to meet the day to day needs of residents", the applicant submits that because child care centres are permissible in the zone, the manner in which the Court should regard the proposal is appropriately considered in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 at [117]-[118] per McClellan CJ of LEC such that it must be accepted that some form of child care centre is envisaged under the zoning.
Responding to the Association's concern regarding the second objective of the R2 Zone, the applicant also submits that there is no requirement in the LEP (or any other relevant instrument including the DCP) for a developer to show that there is a "need" for development, and there is no requirement to specify a level of demand. In any event, the applicant submits that Council itself has indicated in its submissions to the Draft SEPP (referred to in the expert planners' evidence) that there is, at least, an identified need for child care for the 0-3 year old segment. Further, as noted by Mr Sarich, it is unlikely that a developer would wish to develop a development that did not have a reasonable chance of being successful.
In relation to Pt 10A.1 (Location) in the DCP, to the extent that the Association contends that the site is not a "preferred location", the applicant submits that the clause simply identifies areas where child care centres are encouraged. The applicant submits that the fact that the location is not "preferred" does not mean that it is discouraged and that, in the circumstances, the objectives of Pt 10A.1 (Location) are met.
In relation to matters of form, scale and size of the proposal, the applicant submits the Court would find that the proposal fits comfortably within the streetscape controls set out Pt 10A.2 (Site Planning) of the DCP, and in particular subcll (3) and (7) in relation to setback requirements and consistency of landscaping. The applicant submits that subcl (3) properly relates to numerical setbacks applying to residential housing and, submits that, irrespective of whether it is "required" to be complied with, in the present circumstances, the proposal clearly complies. Further, the applicant submits that consideration of the aerial photographs (Exhibits N and 1RE), and the various streetscape photos (Exhibit P) shows a variety of architectural styles on Bayswater Road.
The applicant further submits that Mr Brindle's essential concern regarding the streetscape character relates only to a section of the southern side of Bayswater Road between 14 and 38 Bayswater Road. Although the southern side of Bayswater Road is characterised by larger blocks and built forms when compared to other areas of the street, the DCP controls are not limited to consideration of only one part or section of a street. In the circumstances, the Court would not accept Mr Brindle's evidence in relation to streetscape compatibility, as he focuses too narrowly on the properties he identified, rather than considering the street as a whole.
Further, to the extent that Mr Brindle relies upon "character", the applicant submits, as attested to by Mr Sarich, that character is made up of different factors and in the present circumstances, the proposal sits "comfortably" within the streetscape character. Accordingly, the applicant submits that the character and the streetscape concerns raised by the Association would not preclude consent.
In relation to concerns relating to overlooking, the applicant submits that these arise only in relation to those residents located at the rear of the site, and the agreed evidence of the planning experts is that the proposal is not likely to cause any significant overlooking impact. Further and in any event, the applicant submits that there will be screen planting and associated works to address the residents' overlooking concerns.
In relation to landscape, the applicant submits that the proposal is compliant with the DCP controls, in particular Pt 10A.3(6) (Landscaping) which deals with landscaping standards for "Low Density Residential Areas". The applicant submits that the landscaping is consistent with the adjoining areas, which themselves exhibit a variety of styles, and the DCP does not require a single style in any event. Accordingly, the landscaping to be introduced will sit comfortably with what is presently in the street.
In relation to the concern regarding excavation, the applicant submits that such excavation is necessary to construct the basement as required under Pt 10B.1 (Vehicle Access and Car Parking) of the DCP. In the circumstances the applicant submits, as indicated by the evidence of Mr Sarich, that the level and extent of excavation is appropriate.

[16]

Association's position

The Association submits that the proposal is simply too big for the proposed location, in circumstances where a single dwelling would ordinarily be located, housing one family. The Association submits that the size and scale of the proposal creates impacts beyond what is acceptable and that this is manifest for example in the proposed significant excavation, the size of which, while being too deep, is responsive to the number of children attending the centre thereby demonstrating the inappropriateness of the proposal. The Association submits that this is further demonstrated by the flow on effects of the excavation on the landscaping, which is constrained because the excavation pushes toward the side boundaries reducing the area available for deep soil planting.
In relation to noise impacts, the Association expressed concern in relation to the conclusions of the noise experts, and submits that despite the expert noise evidence, there will be disruption. At the initial hearing, the Association submitted that despite the evidence of the noise experts, the clear intent and policy objective of the Draft SEPP and Draft Guideline in relation to noise levels is to override local controls such as the DCP and provide for more stringent noise standards. Accordingly, to the extent that the expert acoustic evidence was that the Court should not accept the more restrictive noise controls in the Draft Guideline, the Association submitted that that evidence should not be accepted. The Association submitted that even if it were the fact that it cannot be determined what the final acoustic controls will be if the Draft SEPP is made, the Court should take notice of the fact that the controls are getting "more strict".
Further, the fact that the acoustic amenity concerns can only be addressed by limiting the number of children outside at any one time to 14, the Association submits, is impractical and not in the interests of the children attending the child care centre. The Association submits that this is further indication of the unacceptable size and nature of the proposal in that it attempts to accommodate 56 children and 14 staff.
The Association further submits that the Court must have regard to the objectives of development in the R2 Zone which include "to enable other land uses that provide facilities or services to meet the day to day needs of residents". The Association submits that no evidence of "need" has been established and refers to evidence of Mr Brindle (in the joint report, Exhibit H at p 2) that Ku-ring-gai is "well supplied with child care places for children aged 3-5 years…"
The Association submits that the controls in the DCP remain relevant mandatory considerations (although the Association accepts they are not determinative) and directs the Court to Pt 10A.1 (Location) which provides for "preferred locations". The Association notes that preferred locations are places where such a facility will, first, share two or less common boundaries with surrounding properties zoned for residential purposes; second, have a frontage to a park or other open space; and, third, be located close to local shopping facilities, public transport and other community facilities. In circumstances where the site's boundaries are shared with five residential properties, there is no frontage to a park, and the proposal will not be located close to local shopping centres, public transport and other community facilities, the Association submits that the location is inappropriate.
Further, the Association submits that the fact that the proposal is located in a cul-de-sac will result in detriment to local residents, in that users of the child care facility will perform U-turns at the cul-de-sac, which will increase congestion on the roads and pose a safety risk to pedestrians, including primary school aged children walking to the nearby public school. The Association submits that this is another example of the inappropriateness of the location for the proposal.
The Association further submits that the fact the proposal can only have 14 children playing outside is again indicative of poor design and is contrary to the requirements to provide more than 7m² of "unencumbered outdoor play space per child" as required by Pt 10C.6 (Outdoor Play Spaces) of the DCP. Apart from the DCP, the Association points to cl 108 of the National Regulations which also requires 7m² of unencumbered outdoor space, with the Association submitting that the term "unencumbered" should not be interpreted purely in a physical sense. The Association also refers to the Tasmanian Department of Education "Guide to Early Childhood Centre and School Age Care Facilities Code 2012" (Exhibit 2RE) for guidance in relation to the outdoor space requirements for child care centres.
The Association also identified concerns in relation to the screening of the proposed acoustic fence which, it submits, is likely to be visible despite the proposed landscaping. The Association also notes a common concern in relation to reliance upon landscaping to screen development (as per the commentary of the Senior Commissioner Roseth in Super Studio v Waverley Council [2004] NSWLEC 91; (2004) 133 LGERA 363 at [6]) and submits that, in the circumstances, the Court would not have comfort that the landscaping would provide effective screening.

[23]

Location

Although dealt with under the heading 'Location', there was a dispute as to whether the second objective of the R2 Zone required the applicant to marshal evidence in relation to the proposed child care centre meeting the "needs of residents", I do not consider this to be the case. It could not be the intent of the drafter of the LEP, nor is it an approach commonly adopted by the Court, to require a developer to prove that there is some determined need, requirement or demand for a development in circumstances where such need is not always measurable. Rather the future demand for development is a risk that a developer bears - noting, as the applicant submits, that a developer would not generally seek to develop a site for a use which was likely to fail. In any event, and even if that construction was wrong, there is, at least, evidence in the town planning joint report of an "emerging need over the next decade in the 0 - 3 year age group" as referred to in the quote from an earlier submission made by Council in relation to the Draft SEPP.
In relation to the "preferred location" criteria in Pt 10A.1 (Location) of the DCP, Mr Sarich gave evidence, which I accept, that the preferred location criteria were "optional" and that in any event the centre was located close to shopping facilities, public transport and other community facilities. Given the evidence, including detailed mapping produced by Mr Sarich depicting distances to various facilities and utilities, including bus routes, schools, shopping centres, libraries, and railway stations, I accept Mr Sarich's evidence that the proposal is close to appropriate utilities/facilities. Further, although there are a number of properties sharing a boundary with the site, I find that the impacts of the proposal (in particular acoustic and visual) are able to be properly attended to in the design.
In the circumstances, I find that there is no significant concern in relation to the location of the proposal. I note this in circumstances where I find that in relation to discrete operational matters, there is sufficient compliance with both the DCP and Pt 4 of the Child Care Guideline, as discussed further below.

[24]

Design and streetscape

In relation to the provisions of Pt 10A.2 (Site Planning) of the DCP, I am of the view that the proposal is properly integrated both in relation to scale and character of the surrounding area. I have considered the requirements in the DCP in relation to side setback and landscaping and further considered the matters raised in the resident objections, the Association's submissions and the expert evidence of Mr Brindle and Mr Sarich.
In particular, I find that Bayswater Road, and the general area, does not have one particular streetscape character as was suggested by Mr Brindle, and it was apparent from the view and the evidence before the Court that the side setbacks of dwellings in Bayswater Road and nearby streets are not of a regular pattern. For example, the properties to the rear of the subject site in Thomas Avenue have very narrow setbacks. Furthermore, the single storey design of the proposal is important in its interpretation from the street and, as Mr Sarich opines, the proposal will read as a single storey building, with a conventional hipped roof and compatible bulk and scale, giving it a domestic appearance.
To the extent that the side setbacks are said to exceed the minimum DCP requirements, I accept Mr Sarich's evidence that the setback requirements are not determinative and in any case the proposal is compliant. Noting my finding below in relation to the appropriateness of the landscaping, I find that the setbacks substantially comply with relevant controls for dwelling houses in Pt 4A.2 (Building Setbacks) of the DCP.
Accordingly, I do not consider that the setbacks provided in the proposal are significantly different to those of other developments in Bayswater Road or the surrounding area such as to warrant refusal on the basis of design or streetscape. I do however accept that the size of the current proposal will be perceived to be larger than the modest early-twentieth century house with a terracotta tiled roof presently on the site, although I do not consider this to be of significance.
In relation to landscaping, I note that the controls in the DCP in relation to dwelling houses, in particular in Pt 4A.4 (Landscaping), provide, inter alia, that landscaping is to include tall trees, shrubs and ground covers, and that landscape designs are to reflect the prevailing landscape character of the area. I find that these controls are appropriately achieved in the landscape plan before the Court, which clearly retains large trees and includes tall and small trees as well as shrubs and ground cover, and will result in an acceptable soft landscaped appearance.
To the extent that Mr Brindle had concerns that the amount of hard paving surfaces in the front setback, being the proposed driveway and path, are not characteristic of the neighbourhood, I accept the applicant's position that there are a number of nearby houses with driveways that also exhibit a not insignificant area of hard surface (for example, 36, 41, 12, 14, 25 and 27 Bayswater Road (Exhibit P)).
In relation to the other DCP controls, I find that there is significant compliance with each of the relevant controls in the DCP. As noted at [48(6)] above, the Draft Guideline provided controls for various "Design Criteria" including "heights and setbacks", "landscaped area", "local character and context", "public domain interface", "orientation" and "form and articulation". Despite my finding in relation to the weight to be given to the Draft Guideline, I note and accept that the town planning experts have agreed that the proposal does satisfy the design criteria in relation to "pedestrian and vehicle access" and in relation to "visual privacy". Importantly, I note and accept the expert agreement that the proposal does not have significant adverse overlooking impacts.
I am satisfied as agreed between all parties that the site is not a heritage item, is not located in a heritage conservation area, and will not have an impact on the Roseville Estate Heritage Conservation Area.

[26]

Child Care Guideline

Clause 1(2) of Sch 5 to the SEPP requires consideration of Pt 4 of the Child Care Guideline, including the Checklist.
Despite my finding above that the relevant instruments for the purposes of determining this development application are the LEP, DCP and the Pt 4 of the Child Care Guideline, I am conscious of the fact that the parties prepared their cases, including their evidence, to address in part the requirements of the Draft SEPP and the Draft Guideline. While this could give rise to a concern regarding the adequacy of evidence before the Court, I am satisfied that, given the overlap between matters to be considered under the DCP, Draft Guideline and the Child Care Guideline, the parties have properly had the opportunity to bring to the Court's attention all issues of concern regarding the proposal. Relevantly, given the DCP was a relevant consideration both at the initial hearing and the further hearing, and as set out below, many of the matters required to be considered under Pt 4 of the Child Care Guideline are in fact also to be considered under the DCP, such that I am comfortable that the Court has received appropriate expert and documentary evidence relevant to the determination of the development application.
In relation to Pt 4 of the Child Care Guideline, I note that this is styled "Applying the National Regulations to development proposals", and sets out discrete matters for consideration in determining a development application for a child care centre, each of which I have considered. These include "Indoor space requirements", "Laundry and hygiene facilities", "Toilet and hygiene facilities", "Ventilation and natural light", "Administrative space", "Nappy change facilities", "Premises designed to facilitate supervision" and "Emergency and evacuation procedures".
The Checklist provided for in Pt 4 of the Guideline sets out a number of matters contained in the National Regulations, encapsulating regulations 104 (fencing), 106 (laundry/hygiene), 107 (indoor space), 108 (unencumbered outdoor space), 109 (toilet facilities), 110 (ventilation and natural light), 111 (administrative space), 112 (nappy change facilities), 113 (outdoor space - natural environment), 114 (outdoor space - shade) and 115 (facilitating supervision).
Relevantly, it can be seen that the matters for consideration under the DCP are similar to those listed in Pt 4 of the Child Care Guideline (including the Checklist). While I have set out these matters above in my summary of the expert evidence, for clarity I note that these include location, site, landscaping, vehicle access and car parking, and accessibility. Relevantly Pt 10C (Building Design and Sustainability) requires consideration of solar access and ventilation, noise, indoor play spaces, backup facilities (including cot rooms, child accessible toilet areas, nappy changing areas and bottle preparation areas), as well as staff and parent accessible areas (including internal and external foyer areas, director's offices/administration areas, staff rooms, adult toilet facilities, kitchen and food preparation facilities, and cleaner's storage areas) and further, outdoor play spaces including the provision of unencumbered outdoor play space, play equipment, shading, planting, fencing, and noise and storage considerations.
It is clear from my summary of the evidence and submissions above that the evidence before me, while primarily directed to the DCP, as a result of the overlap between the issues for consideration between the DCP and Child Care Guideline, also addresses the Child Care Guideline.

[27]

Objectors' evidence

Finally in relation to the extensive objector evidence, it is clear that the proposal will result in a noticeable change to the site and the manner in which it is used. The Court is required to consider the local residents' evidence and give it appropriate weight, as it forms part of the public interest consideration of the proposal. As noted, I have read and considered all written objections lodged with Council in respect of the proposal and have received oral evidence.
In considering community responses to an application such as that before the Court, an evaluation must be made on the reasonableness of the claimed perceptions of the adverse effect on residents' amenity. The concept of amenity is wide and the statutory scheme under the Act gives effect to the broadest conceivable scope of "likely impacts" of a proposed development. An evaluation of reasonableness includes identifying objective evidence that can support a factual finding of an adverse effect on the amenity of the objectors many of whom are local residents. Of course, a fear or concern without rational justified foundation, is not a matter which by itself can be considered as an amenity (or indeed social) impact (Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 at [192]-[195]).
In addition to the carefully presented objections made by those residents who gave evidence, there were extensive and detailed objections made by many others. I have no doubt that those who objected to the proposal have expressed their concerns sincerely. However, although there will be discernible effects that will result from the proposal, the evidence of the various experts leads me to the view that the amenity impacts the subject of the residents' complaints are not sufficient on their own or in a cumulative sense to warrant refusal of the development application. I am satisfied on the evidence before me that the relevant planning concerns raised by the objectors has been, and is able to be, addressed by the plans presently before the Court and the proposed conditions of consent.

[28]

Conditions

There were various versions of the draft conditions before the Court during hearing, with the final version of conditions (styled "Composite Conditions") becoming Exhibit 1RF. This document was marked up in colour representing the various parties' positions in relation to a number of those conditions which were not agreed.
According to submissions I heard at the initial hearing, there remain only two primary issues regarding the draft conditions. The first relates to the proposed condition regarding parking restrictions adjacent to the site. Council has proposed "no stopping" signs, a condition which the applicant accepts and was endorsed by the traffic experts. However, the Association maintains that the consent should be subject to a deferred commencement condition pending future approval by Council of the parking restrictions. The applicant submits that there is no evidence as to why the parking condition requires the consent to be subject to a deferred commencement, with Council also adopting this view.
The second concern in relation to the proposed conditions relates to the operating hours of the child care centre, with the applicant desiring the centre to operate from 7.30am to 6.00pm, and the Association suggesting that 8.00am to 5.30pm is adequate. The applicant submits that, given the nature of the services provided and the likely needs of those using the facility (for example, working parents), operation from 7.30am to 6.00pm is appropriate.
Based upon the evidence and submissions I do not accept the Association's position that the provision of parking restriction signage, which will depend upon further consideration by Council's Local Traffic Committee, mandates that there be a "deferred commencement" of the consent. In relation to the operating hours, I accept that given the nature of the service provided, the facility requires the hours to be 7.30am to 6.00pm and that no discernible deleterious effect would result for the facility operating during these hours.
In relation to the specific conditions (as per Exhibit 1RF) which were not agreed and in particular the parts of the conditions coloured 'blue' (i.e. the wording not agreed), I make the following findings: 1. In relation to "Part A - Deferred Commencement Conditions" - there is to be no deferred commencement condition and concerns in relation to the parking signage are to be dealt with in accordance with condition 11. 2. In relation to condition 10, "Construction and traffic management plan" - the blue coloured wording is to be deleted. 3. In relation to condition 11, "No Stopping" restriction - the timing should read "…7am-9am" and "4pm-6pm". Otherwise the blue underlined wording is to be deleted. 4. In relation to condition 24, "Amendments to Operational Plan of Management" - the blue coloured wording in (c) is to be deleted. In (f), "7pm" is substituted for "6pm" and the following subclause is to be included: "(g) The operator is to require parents to pick up and drop off by use of basement car park." 1. In relation to condition 28, "Access for people with disabilities (commercial)" - the blue coloured and underlined wording is to be deleted. 2. In relation to condition 48, "Use of road or footpath" - the blue coloured wording is to be deleted. 3. In relation to condition 64B, "Post-construction dilapidation report" - the blue coloured wording is to be deleted. 4. In relation to condition 81, "Noise Control - Operational" - after the words "…no more than 6 per year" add the following words "limited to 3 hours per event." 5. In relation to condition 82, "Car parking" - the last line is to read "…prior to 7am and after 7pm…" 6. In relation to condition 85, "Hours of operation" - "7.30am-6pm" is to be inserted.

Omid Mohebati-Arani v Ku-ring-gai Council

At a glance

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Judgment (33 paragraphs)

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