Otium Capital DT Pty Ltd trading as Otium Capital Discretionary Trust v City of Canada Bay Council

The site and its context

1. The site is known as 380 Great North Road, Abbotsford and is located on the south east corner of the intersection of that road with Walton Street. The site is legally defined as Lot 1 in Deposited Plan 862198 and has a site area of 1401.1sqm.
2. The site contains a locally listed heritage item known as 'Chatham House' (LEP 2013 Heritage Item 1235). The dwelling has the following statement of significance: A grand two storey house of individual design once part of the Nestles complex. A very impressive and unusual house for the Drummoyne area and an important house in relation to the Nestle development. (Exhibit 1)
3. The site is adjoined to the south and east by a master-planned housing estate known as Abbotsford Cove. Directly adjoining the site to the east is a driveway/private road (Chatham Place) that serves a number of single and two storey semi-detached dwellings within the estate.
4. The part of Abbotsford Cove immediately adjoining the site contains two storey semi-detached dwellings. To the north of the site and further to the east along Walton Crescent development is characterised by semi-detached dwellings and residential flat buildings.
5. The location of the subject site is identified in the following aerial photograph: Source: https://maps.six.nsw.gov.au/ Subject site:

Public submissions

1. The original development application was placed on public exhibition and received 26 submissions in objection to the proposal. Following the applicants amendments (refer paragraph [2]) the application was renotified and twenty submissions were received by the Council raising objection to the proposal. In summary these submissions raise the following concerns about the proposed development:

• increase in on street parking and traffic movements;
• vehicle manoeuvring;
• increased prevalence of illegal parking and the blocking of driveways by users of the centre at drop off and pick up times;
• poor visibility and sightlines for vehicles exiting from Chatham Place;
• the safety of pedestrians and children accessing the centre;
• the impact of noise from the centre on the adjoining properties;
• overlooking;
• the bulk, scale and appearance of the centre;
• the impact of the development and the proposed demolition on the heritage significance of Chatham House;
• insufficient information;
• lack of consultation with adjoining neighbours;
• tree removal proposed;
• whether there is a demand for the service;
• the suitability of the site and the existing building for the proposed use;
• the visual impact of the proposed acoustic screen;
• waste storage and servicing for the development;
• the potential for parents who use the centre to utilise on street parking in the vicinity and commute to work;
• lack of passive surveillance due to high fencing;
• overshadowing impact on adjoining properties;
• appropriateness of the setback proposed to 2 Chatham Place;
• resolution of stormwater management and drainage.

1. At the commencement of the hearing a number of residents addressed the Court detailing from their perspective the potential positive or detrimental impacts that would arise from the development. These residents made the following principal submissions: 1. that they remain concerned about the impact of the proposed development on local traffic, parking availability and safety; 2. the reliance on parking off site will exacerbate existing high demand for on street parking; 3. the sign in/ out process will result in a slow turnover of parking which will further impact availability; 4. it is unsafe for parents parking on the western side of Great North Road to cross the road to access the centre; 5. that the scale of the centre proposed is too large of the site, particularly given its heritage constraints; 6. the proposed design does not reflect the heritage values of the site and its footprint will negatively impact the curtilage of the house and its garden setting; 7. the southern elevation of the proposal is elevated above the existing ground level and due to its elevation and length will appear visually dominant and intrusive. This will have a detrimental impact on the residence at 2 Chatham Place; 8. the absence of onsite parking, lack provision for servicing on site and the absence of a drop off and pick up area onsite is unacceptable; 9. there is a potential for users of the childcare centre to utilise Chatham Place to park or perform a 'U turn' to gain access to the centre. This is inappropriate given it is a private road; 10. that there is a need and a demand for a childcare centre in the area; 11. that the proposal would be a benefit for local families and reduce the need to access such child minding facilities outside the suburb; 12. that in assessing the application the Court should give consideration to the number of local residents who live in proximity to the site and would access its services on foot; 13. that the drop off and pick up times would be staggered over a three hour period, minimising the impact on streets in proximity to the centre from any parents who do drive; 14. that the demand for childcare services will increase over coming years as families move into the area.
2. During the hearing a number of letters addressed to the Court prepared by members of the public were tabled by the applicant (Exhibit F). These letters broadly emphasise:

• the potential benefits that would arise from the development given the shortage of childcare services in the area,
• the potential for the reuse of the heritage building to provide a positive environment for children of the childcare centre,
• the relative lower impacts that would arise for the locality from the proposed childcare use when compared with the approved restaurant;
• the availability of on street parking; and
• their individual intention to access the centre on foot, rather than rely on a car for transport if the application was approved by the Court.

Planning Controls:

1. Canada Bay Local Environmental Plan 2013 (LEP 2013) applies to the site. Pursuant to LEP 2013 the site is zoned R3 Medium Density Residential. Development for the purposes of a 'centre-based child care facility' is permissible with consent in the zone.
2. The relevant objectives of the R3 zone are:

• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

1. As the subject contains a heritage item, cl. 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2013, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of Canada Bay, and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4).
2. The development is also subject to the requirements of the Canada Bay Development Control Plan 2013 (DCP 2013). The following provisions of DCP 2013 are relevant to the appeal: Part A A1.1: The purpose of this Development Control Plan If there are circumstances when it is not relevant to comply with the controls in this DCP, applicants must provide a written submission clearly demonstrating compliance with the objectives of this DCP, and detailing the reasons the control/s should be varied. The proposed variation must result in a better outcome and meet all objectives of this DCP. The submission must also clearly demonstrate the variation sought will not adversely impact on the local amenity. Part C3: Vehicle and bicycle parking rates and bicycle storage facilities Objectives O1. To identify the maximum number of car parking spaces that may be provided to service particular uses of land. O2. To provide less resident and visitor parking in localities that are identified as having good accessibility to public transport. O3. To minimise vehicular traffic generated by development. O4. To ensure parking areas do not detract from the streetscape Controls: … C10. Parking should not detract from the streetscape qualities, while meeting the needs of visitors and employees in the commercial areas. … C14. The provision of parking for different types of development should be in accordance with Table C-C. … Table C-C: Child care centres 1 space for every 4 children in attendance … Part E3.5: Building Setbacks Objectives O1. To integrate new development with the established setback character of the street. O2. Preserve significant vegetation which contributes to the public domain and allows for street landscape character to be enhanced. O3. Ensure adequate separation between buildings consistent with the established character and rhythm of built elements in the street. O4. To ensure adequate separation between buildings for visual and acoustic privacy. O5. Maximise solar access to achieve amenity for neighbours. Controls … Rear setbacks Controls C6. New development is to have a minimum rear setback of 6.0 metres. … Part I: Childcare Centres Objectives O1. To encourage the provision of high quality child care which meets the needs of the community, including users of the facility and owners and users of surrounding land uses. O2. To encourage best practice in the planning and design of Child Care Centres. O3. To ensure that Child Care Centres are compatible with neighbouring land uses. … O5. To ensure child care centres are located with adequate, convenient and safe parking for visitors that does not impose on any residential neighbourhoods or commercial areas. … I4: Planning and Design Criteria Objectives O1. To ensure that the relationship between a Child Care Centre and adjoining land uses is favourable in terms of traffic, parking and noise impacts; and … Controls … C2. Child Care Centres are to have a direct street frontage or vehicle access point to a road, which, in the opinion of the Council is suitable for a Child Care Centre, having regard to: a) Prevailing traffic conditions; b) Pedestrian and vehicle safety; and c) The likely impact of the development on traffic flows; and d) Proximity to an arterial road. C3. The design and siting of a Child Care Centre should consider the following attributes: a) Existing vegetation; b) Land slope and changes in level; c) Site orientation and solar access; d) Prevailing winds; e) Natural drainage; f) Retention of any special qualities or features of the site; g) Significant noise sources; h) Views to and from the site; i) Pedestrian and vehicular access; j) Existing buildings on the site; k) Location of surrounding building, uses, open space areas adjoining or adjacent to the site; l) Overshadowing from existing buildings; m) The predominant built form and character; and n) Major trees or landmarks on surrounding sites. I5 Building design, appearance and neighbourhood character Objectives O1. To ensure the height and scale of a child care centre relates to site conditions, complements the prevailing character of the streetscape and minimises any adverse amenity impacts upon surrounding properties. O2. To ensure that the appearance of the development is of a high visual quality, enhances streetscape and complements good quality surrounding development. Controls C1. The Child Care Centre should comply with the relevant height, floor space ratio and setback controls as stipulated in the Canada Bay LEP and this Policy as are applicable to the zone in which the Child Care Centre is to be located. …. I6 Traffic, parking and access Objectives: O1. To ensure a safe environment for pedestrians, particularly children, motorists and cyclists around Child Care Centres. O2. To ensure that vehicular access and parking provisions of Child Care Centres do not detrimentally affect the traffic safety of surrounding areas. O3. To ensure the adequate provision of car parking. Controls: C1. One (1) car parking space is to be provided for every four (4) licensed places at the Child Care Centre. … C6. All applications for Child Care Centres involving more than 20 children should be supported by a Traffic Report, prepared by a suitably qualified person, addressing as a minimum the following factors: a) The prevailing traffic conditions; b) The likely impact of the proposed development on existing traffic flows and the surrounding street system; c) Pedestrian and traffic safety; d) Justification of any variation to the parking requirements; and e) How impacts of drop off and pick up will be accommodated.
3. The NSW Roads and Maritime Services: Guide to Traffic Generating Developments (the RTA Guide), published in October 2002, provides parking requirements for specific land uses.
4. The DCP provisions are a mandatory consideration and a focal point of the assessment of the application (see Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167). However, Section 79C(3)A (now 4.15(3A)) of the Act mandates a flexible application of the controls where the alternative solution is capable of meeting the required standards (Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151). Relevantly in this appeal the applicant seeks a variation to the DCP provisions in relation to onsite parking provision.

Expert Evidence

1. In line with the issues in dispute in the proceedings the parties engaged experts in heritage, arboriculture, stormwater engineering, traffic engineering and town planning. Expert reports were filed in each of these disciples. I have read and considered these reports in the assessment of the application.
2. The experts for the applicant were: 1. Mr Robert Varga - Traffic Engineering. 2. Mr. Scott Lockrey- Town Planning. 3. Ms. Kylie Hill - Arboriculture. 4. Mr. Matthew Beament- Stormwater engineering. 5. Jennifer Hill - Heritage Architecture.
3. The experts for the Council were: 1. Mr Matthew McCarthy - Traffic Engineering. 2. Mr Stuart Ardlie - Town Planning. 3. Mr David Hart - Arboriculture. 4. Mr Mohamed Aliyar- Stormwater engineering. 5. Mr Robert Moore - Heritage Architecture.
4. A number of the contentions originally in dispute between the parties have been resolved through the joint conferencing process either by amendments to the application or the proposed imposition of consent conditions. I have reviewed the evidence provided by experts to support the resolution of the contentions now agreed. I am satisfied that the experts have appropriately considered the issues raised by the contentions, the public submissions and the appropriate planning controls, and I accept their conclusions.
5. The development's compliance with the aims of LEP 2013 and DCP 2013 was originally contended by the Council but during the proceedings was not pressed.
6. Of particular note pursuant to cl 5.10(4) the heritage experts have considered the effect of the proposed development on the significance of Chatham House.
7. At the end of the joint expert report Ms Hill concludes that: The amended plans, with the additional amendments discussed in this joint conference, will provide an enhancement of the heritage item due to the reinstatement of original features and details which will offset the reduction in the setting to the rear of the building. The general approach of a retained heritage item including its original service areas with a rear extension which presents as a series of garden rooms, creates an appropriate setting for the heritage item. (Exhibit 3)
8. It is the evidence of Mr Moore that the amended plans that followed the completion of the joint report adequately addressed the heritage contentions with the exception of a remaining concern about the partitioning of the front room. Following his oral evidence on this issue the applicant made a further amendment to the internal planning of the centre to facilitate the retention of the front room as a single space. It was Mr Moore's oral evidence following this amendment that he has no further heritage concerns with the proposed development.
9. On the basis of the preceding evidence I am satisfied that the effect on the heritage significance of the item is acceptable.
10. The remaining merit issues in contention can be grouped as follows: 1. How the rear setback control of 6 metres (at Part E3.5: Building Setbacks of DCP 2013) applies to the proposed development; 2. whether the setback proposed to the boundary with 2 Chatham Place is appropriate in the context and for the proposed use; 3. Whether the proposed variation to the parking provisions is capable of meeting the objective of the standards of DCP 2013 and is appropriate.

How does the rear setback control apply to the development?

What is the "rear" of the development?

1. The parties dispute which of the property boundaries are appropriately designated as "side" or "rear". This arises in part due to the location of the property on a corner allotment with frontage to both the Great North Road to the west and Walton Crescent to the north (refer paragraph [10]).
2. It is Mr Lockrey's evidence that the site's legal property description of Lot [1] in DP 862128 is registered to the address 380 Great North Road. As such its technical front boundary is Great North Road (western boundary) and therefore its southern boundary (that shared with 2 Chatham Place) is a side boundary condition (Exhibit 2).
3. In support of this conclusion Mr Lockrey relies on an existing Council approval for development on the site (DA/491/2011/2). Condition 48 of this approval allocates a maximum seating capacity to the "rear verandah" which when compared to the approved plans is located on the western side of the existing built form.
4. On the basis of the proceeding Mr Lockrey argues that the side setback control applies to the setback of proposed development adjacent the boundary shared with 2 Chatham Place.
5. In the alternative Mr Ardlie's evidence is that although the site has dual frontage the front setback is to Walton Crescent. His reasoning is as follows: The northern elevation [to Walton Crescent] is considered to be the principal frontage becasue this elevaton incorperates features including the front door, street facing glazing, veranda (which also extends along the eastern elevation), pedestrian access path/gate and vehicular access driveway. (Exhibit 2)
6. Mr Ardlie argues this approach is supported by the applicant's Heritage Impact Assessment at Part 4.1.3 which states that the primary façade of Chatham House fronts Walton Crescent.
7. On this basis Mr Ardlie argues that the sites common boundary with 2 Chatham Place is a rear boundary.

Findings

1. The dispute between the experts is principally an issue of whether it is appropriate to give greater weight to the street addressing system, or the cues provided in the built environment or the architecture of the existing building in determining a "front", "side" or "rear' boundary.
2. The street facade of a building is that which engages with the street and seeks to facilitate entry and exit from the private space of the interior to the public street. Logically the rear setback is the opposing side of the front or street setback.
3. To assist in understanding the intent of the controls DCP 2013 also provides setback controls for both residential and industrial development.
4. The residential setback controls are provided at E3.5 where the distinction between the functions of the front and rear setbacks are clear. The chapeau to the clause states for example: "Appropriate street setback controls can contribute to the public domain by enhancing streetscape character and the continuity of street facades;" and "rear setbacks provide space for planting, including trees, which will achieve a reasonable height and canopy and provide for adequate open space of residents". At E3.5, C1 the DCP notes that the terminology "front setback" is a reference to the street setback.
5. Similarly within DCP 2013 setback controls for industrial development are detailed in Part G. At G2 the DCP states that "setbacks also provide a transitional area or buffer to adjoining land uses and ensure building entrances are clearly visible".
6. There are no specific setback controls within Part I - Child Care Centres.
7. The Heritage Impact Assessment (HIA) notes that the northern façade of Chatham House is the front entry, now entry to the upper flat. It is defined by a full length verandah. (Exhibit L).
8. I note that the design of the building locates the front door, pedestrian entry and its primary façade to Walton Crescent.
9. I am satisfied it is appropriate to give weight to the built form over the formal street address given the heritage listing of the property and that the front setback of the building has its address to Walton Crescent. Therefore I find that the rear setback is the common boundary with 2 Chatham Place.

What control applies to the rear setback?

1. The Respondent argues that the effect of Part 15 of DCP 2013 (refer paragraph [17]) is that the development is required to have a minimum rear setback of 6m. The relevant control states: C1: The Child Care Centre should comply with the relevant height, floor space ratio and setback controls as stipulated in the Canada Bay LEP and this Policy as are applicable to the zone in which the Child Care Centre is to be located.
2. Mr Jackson submits that the effect of the above control is that a childcare use in the R3 Medium Density Residential zone is required to comply with the controls for residential setbacks at E3.5, namely: C6. New development is to have a minimum rear setback of 6.0 metres.
3. In the alternative Mr Gough submits that control C1 of Part I5 requires that development comply with a setback control applicable to the zone. It is his submission that the neither LEP 2013 nor DCP 2013 contains a zone specific setback controls.
4. Further Mr Gough argues that the setback controls at E3.5 referred to by Mr Jackson apply to residential development irrespective of the underlying zoning of the land, for example in the case of mixed use development. Mr Gough concludes that given the drafting of the instruments there is no applicable setback control, excepting the minimum standard set by the National Construction Code of 900mm.
5. In oral evidence Mr Ardlie confirmed that neither LEP 2013 nor DCP 2013 provide a zone specific setback control that applies to the R3 Medium Density Residential zone.

Findings

1. I accept the submission of Mr Gough and the oral evidence of Mr Ardlie that given the drafting of the planning instruments there is no applicable setback control for the proposed development. A review of the LEP and DCP indicates that no setback controls apply specifically to the R3 Medium Density Residential Zone.
2. Given that residential development is a permissible use in a range of zones I do not accept that the intent of C1 is for the residential setback controls in E3.5 to apply as a proxy for setback controls for specific zones.
3. As such a determination of the appropriateness of the setback proposed by the application arises from a merit assessment.

Is the proposed setback of the Childcare centre to 2 Chatham Place acceptable?

1. The respondent argues that the starting point for a qualitative assessment of the acceptability of the above setback is that C6 requires "new development is to have a minimum rear setback of 6.0 metres".
2. It is the evidence of Mr Ardlie that the heritage affectation has "influenced the siting of the built form along the southern rear boundary" (Exhibit 2). He supports this conclusion by reference to the HIA which states: 10.4.1 The impact of the new development on the heritage significance of the item/conservation area is minimised by locating the additions to the rear and maintaining a low one storey scale. (Exhibit L)
3. In assessing the merit of the proposed setback to 2 Chatham Place Mr Ardlie's evidence is the proposed setback is insufficient. In particular he is concerned that the setback of 2.3m is inadequate given the length of the proposed wall (some 27.5m) and its height. He argues that, given the difference in ground level between the subject site and the ground level of 2 Chatham Place, the proposed addition will have a visible height of 1.9 to 2m above the existing boundary fence. It is his assessment that the proposed height as well as the extent and treatment of the facade (as a blank timber clad wall with no articulation or visual relief) are unacceptable (Exhibit 2).
4. It is Mr Ardlie's evidence that the "visibility of the addition above the boundary fence will impact the amenity of the occupants of 2 Chatham Place and result in a general sense of enclosure" (Exhibit 2). Further he argues that the setback provides insufficient transition or space for suitable landscaping.
5. Mr Ardlie concludes that the proposed development is inconsistent with Objective 01 Section I5 of DCP 2013, namely: "to ensure that the height and scale of a childcare centre relates to site conditions, complements the prevailing character of the streetscape and minimises adverse amenity impacts upon surrounding properties" (Exhibit 2).
6. In the alternative Mr Lockrey's evidence is that the 2.3m setback proposed for the single storey addition exceeds the minimum requirement of 900mm for other permissible building forms. Further he argues that the "height of the single storey addition at 3.9m at its south western corner and 4.6m at its south eastern corner is substantially less than the 8.5m technically permitted by LEP 2013 and the 7.5m guideline in DCP 2017" (Exhibit 2).
7. Mr Lockrey disagrees with Mr Ardlie's assessment of the visual impact of the building. On the following reasoning he concludes the proposed addition has little visual impact. The combination of the existing hedging within 2 Chatham Place, the proposed 2.3 setback with varied materials, retained southern boundary vegetation, proposed hedge planting, required 1.8m timber paling boundary fencing and the Star Jasmine (Trachelospernum) vertical wire planting to the southern elevation provides effective visual relief and screening. (Exhibit 2)
8. Further Mr Lockrey argues that the setback proposed is acceptable for the following reasons:

• It maintains appropriate access to daylight and ventilation;
• permits visual and acoustic privacy;
• maintains clear sight lines;
• permits the continued use of the multiple private open spaces and internal living rooms;
• does not alter the existing subdivision pattern; and
• is provided with southern elevation fixed glazing. The glazing has been designed to comply with the relevant requirements of Clause C3.4 of the National Construction Code. (Exhibit 2)

1. Mr Gough submits that the proposed setback between the subject property at 2 Chatham Place is greater than that required by the National Construction Code and greater than the common setback pattern of the adjoining group of properties fronting Great North Road. As such it is his submission that the proposed setback is consistent with the requirement of the objective to complement the prevailing character of the streetscape. On the basis of the evidence of Mr Lockrey he submits that the setback of the development to 2 Chatham Place "minimises adverse amenity impacts upon surrounding properties". Mr Gough concludes that the proposed setback of the Childcare centre to 2 Chatham Place meets the objectives of I5: Building Design, appearance and neighbourhood character; and as such is acceptable.
2. In the alternative Mr Jackson submits that on the basis of the evidence of Mr Ardlie the proposed setback of 2.3m fails to meet the objectives of DCP 2013 and should not be approved. In addition he submits that the Court should give weight to the submissions of the resident who in their address to the Court raised concern that the southern elevation of the proposal would, due to its elevation and length, appear visually dominant and intrusive. He noted that the resident also expressed concern about the viability of the existing screening trees given their proximity to the proposed works.
3. The joint report of the arboricultural experts makes the following observations and recommendations in relation to these trees: The proposed increase in the south setback by 500mm to 2.3m has decreased the requirement for canopy pruning to 16 of 17 trees within Trees group #9. 1 x Schinus areira (Tree No 9 batch, 5th tree from south-west corner) will be required to be removed. (David Hart & Kyle Hill- agree). A consulting Arborist should be appointed to supervise pruning of the Schinus spp trees that may be required during the construction process on these trees. (David Hart & Kyle Hill - agree). (e)(f) The increased setback will lessen the requirement to remove structural supporting roots. A totally suspended structure with manually excavated footings/ piers being implemented will minimise disturbance at/below ground level. A Construction Management Plan should be submitted, prior to Construction certificate being issued to confirm location of the footings. (David Hart & Kyle Hill - agree). (Exhibit 6)
4. Mr Jackson argues that the comparison made by Mr Gough of the common setback pattern of the adjoining properties and the applications proposed setback should be given little weight for the following reasons: 1. He argues that the adjoining developments are a series of adjacent residential uses, whereas the subject proposal involves the boundary relationship between a residential and a childcare use; and 2. The length of wall proposed parallel to the boundary is materially longer than the characteristic pattern generated by the adjoining townhouses.

Findings

1. During the onsite component of the proceedings I had the opportunity to view the subject site from the residence at 2 Chatham Road and hear evidence from that resident. I was able to make my own observations of the existing boundary circumstances and the potential impacts that would arise if the proposed development was approved by the Court.
2. The draft consent conditions (Exhibit 8) currently do not provide specific consideration or conditions regarding the ongoing management of the group of mature Schinus areira trees (referenced as Tree 9 in Exhibit H) adjacent the southern boundary. I am satisfied that the ongoing retention of these trees provide an important screening function that offsets the length of unbroken wall proposed by the applicant and provides amenity to the property at 2 Chatham Place. Prior to any consent, if approval is found to be warranted, appropriate condition/s should be prepared to address the preservation of the screening function provided by these trees. This may involve consideration of succession given the "poor to fair" rating provided for the group in the Tree Assessment and Management Report (Exhibit H).
3. During the proceedings the applicant provided amended plans. One of the changes arising from the evidence was the inclusion of a small recess in the southern wall of the building. The note to the architectural plans states: "Recess to break up the façade". It is my assessment that this small addition of articulation to the length of unbroken wall is largely unsuccessful in providing visual relief.
4. Arguably the architectural design could account for the fall of the site and unusual difference in ground level between the subject property and 2 Chatham Place and provide a design that varied the floor level to further reduce the overall scale of the development. However as stated by Moore SC, as he then was, in Ausling v Willoughby City Council [2015] NSWLEC 1226 at [105] the role of the Court is to 'assess the acceptability within the framework set by the controls rather than measuring the proposal against the yardstick of design nirvana'. I am satisfied that given the zoning and maximum permissible height provided for the site by LEP 2013, the bulk and scale of the proposal is acceptable.
5. On the basis of the conditions detailed at paragraph [66] I accept the evidence of Mr Lockrey (at paragraph [60]) that the combination of measures proposed by the applicant provide sufficient visual relief and screening.
6. Assessing the development against the relevant objectives and applying the planning principles established in the Davies v Penrith City Council [2013] NSWLEC 1141 I am satisfied the setback meets the objectives of I5: Building Design, appearance and neighbourhood character; and as such is acceptable.
7. On balance I find that the likely impacts of the development on the locality from the proposed setback to 2 Chatham Place (s79C(1)(b) of the Act, now s4.15(b)) are not sufficient to warrant the refusal of the application.

Is the variation to the parking standard acceptable?

1. Mr Jackson submits that a significant part of the development that is proposed by the application, the provision of parking and deliveries, will occur outside the bounds of the site and have an unreasonable impact on the adjoining properties and the locality.
2. Council contends that the proposed childcare centre does not comply with the parking controls contained within DCP 2017 and based on the number of children proposed in the centre, is required to provide 18 car spaces.
3. Council relies on the RTA Guide to Traffic Generating Developments, October 2002 (RMS Guidelines), which states:

• off-street parking must be provided at a rate of one space for each four children in attendance;
• given the short length of stay (the RTA surveys found an average length of stay 6.8 minutes) parking must be provided in a convenient location, allowing safe movement of children to and from the centre;
• consideration could be given to reducing parking required where convenient and safe on-street parking is available (eg indented parking bays), provided that the use of such parking does not adversely affect the amenity of adjacent areas. (Exhibit C)

1. Council argues that in proximity to the centre there is 'no conveniently accessed on-street parent parking that can be guaranteed as being available for use by parents to the childcare centre at AM/PM peak arrival and departure times' (Exhibit 1).
2. In the alternative the Traffic and Parking Assessment report that accompanied the development application places significance on a previous approval for a 96 seat restaurant/ café on the site [DA/491/2011]. In his report Mr Varga states: The consent orders noted that the 96 seat restaurant generated a parking requirement of 33 spaces however the parties accepted that 'the capacity for on-site parking is limited due to the heritage significance of the grounds, including the existing vegetation and garden setting of the heritage item' (Exhibit D)
3. Mr Varga notes that the approval for the restaurant/ café was granted with a shortfall of 29 spaces. He concludes "… the proposed childcare centre development is a less intensive use of the site in traffic and parking terms and will reduce the previously approved shortfall in parking from 29 spaces to 19 spaces" (Exhibit D).
4. In addition to the preceding analysis Mr Varga notes that the subject site is located in the Abbotsford Cove Precinct "which is a large residential catchment area including 500 waterfront apartments… many of the children are expected to be walked to and from the centre from their home/apartment." (Exhibit D) It is Mr Varga's evidence that this assertion is supported by the waiting list tabled by the applicant that notes a high proportion of the demand for childcare spaces arises from residents in proximity to the site.
5. The applicant has undertaken two parking accumulation surveys to determine the capacity of surrounding streets to accommodate the additional vehicles generated by the proposed childcare use. Following an analysis of the data generated by the surveys Mr Varga concludes: The results of the most recent parking accumulation surveys are consistent with the previous surveys, in that: - the peak demand throughout the 12-hour duration of the surveys occurred at 6.30 pm when there were typically 77 vacant parking spaces available, and - there was an average of 105 vacant parking spaces available throughout the 3-day 12-hour duration surveys. (Exhibit E)
6. In summary Mr Varga concludes that reliance on street parking for the development is acceptable in the circumstances of this case because:

• the heritage significance of Chatham House including its garden setting, identified as its curtilage, prevents additional parking being provided on the site
• the site is located within the Abbotsford Cove Precinct which is a large residential catchment area including approximately 500 waterfront apartments. It is therefore anticipated that many children attending the centre will be drawn from the local residential area and likely to be walked to/from the subject site
• Council has previously accepted that the capacity for on-site parking is limited due to the heritage significance of the grounds, including the existing vegetation and the garden setting of the heritage item
• the previously approved proposal for a restaurant on the site generated a parking shortfall of 29 spaces, seven days a week
• the proposed childcare centre will reduce that previously approved shortfall to 19 spaces, with reduced operating hours on Monday - Friday only
• experience suggests that a substantial proportion of childcare centre staff do not own a car (and often do not have a drivers licence) and usually travel by public transport or are dropped off/picked up from work by family or friends
• the site is readily accessible by public transport, including bus and ferry services
• those bus routes provide opportunities for interchange with the suburban rail network at Central, Museum, Martin Place and Bondi Junction Railway Stations
• the site is located within a low/medium density residential catchment area where there is potential of local parents who could walk to the childcare centre
• almost all of the residential developments located within the vicinity of the site have ready access to off-street parking, and are therefore unlikely to be adversely affected by any increase in on-street car parking that may occur for brief periods, during peak drop-off and pick-up periods
• the parking accumulation survey results indicate that spare capacity is readily available within a short walking distance of the subject site, including directly outside the site, during peak drop-off and pick-up periods.
• (Exhibit D)

1. In the alternative Mr McCarthy places little significance on the waiting list tendered by the applicant on the following basis: "… the waiting list is not considered to be relevant given that the spread of families who would rely on the centre cannot be guaranteed to be biased to the north of the site long term. It is more likely that in time the proportion of families will be from the south as this is where the majority of households are." (Exhibit 7)
2. Mr McCarthy also discounts the significance of the waitlist on the basis that such a list would change over time and there is no proposed restriction on enrolment based on proximity to the centre. He concludes that the assessment should be undertaken in accordance with the RMS Guidelines. These guidelines assume a 3% allocation to people arriving by foot in determining the parking demands for the facility.
3. Mr Varga confirmed that, in his assessment of the acceptability of the parking provision, he has not discounted demand on the basis of walking rates greater than that allowed in the RMS Guidelines. Rather he argues that his analysis likely overstates the impact of the development on on-street parking and this should be considered in determining if the reliance on on-street parking is acceptable.
4. Further there is disagreement between the experts in relation to the safety of the various zones of on street parking in proximity to the site.
5. Within the joint report Mr McCarthy undertakes an assessment of the available on-street parking identified by the applicant. He ranks the areas against the statement within the RMS guidelines: parking must be provided in a convenient location, allowing for the safe movement of children to and from the centre. Mr McCarthy's analysis concludes that the proposed development will result in an increasing number of pedestrian movements across Great North Road, significantly increasing the risk of a child being seriously injured or killed by vehicles (Exhibit 7). On this basis he discounts various areas of on-street parking and argues they should not be relied upon by the applicant.
6. Mr McCarthy notes that the traffic flows on Great North Road at the AM and PM peak are 871 and 842 vehicles per hour respectively, including the vehicular traffic generated by the development. It is his evidence that despite the pedestrian refuge on Great North Road at this volume of vehicles it would be difficult for parents and children to cross (Exhibit 7).
7. In the alternative Mr Varga is satisfied that the reliance on on-street parking is acceptable and argues that '…crossing roads is a typical and commonplace feature of the urban environment and cannot be avoided, particularly for those children being walked to/from the site. Learning to cross a road whilst holding the hand of a parent/carer is an important part of early childhood learning which cannot and should not be avoided' (Exhibit 7). On this basis he argues that all the areas encompassed by the parking survey are suitable for on-street parking for users of the centre.

Conclusion:

1. After considering the evidence and submissions I find the applicant places undue weight on the previous approval in assessing and determining the acceptability of impacts that will arise from the proposed development. I am satisfied that the two development proposals are materially different. Key elements of this difference are: the scope of development proposed both in intensity and site coverage; and the primacy given to an unbuilt upon curtilage in the approval provided for the restaurant/café. I note that the current application materially reduces the unbuilt upon area of the site when compared to the design of the proposed restaurant/café.
2. I find that the benefit generated by the provision of this facility in the locality and the heritage conservation works are insufficient to offset the foreseeable detrimental impacts that will arise from the lack of provision of adequate parking, servicing and drop of pick up facilities for the centre.
3. I accept the evidence of Mr McCarthy that in considering the parking demand generated by the development little weight can be placed on the waiting list. I adopt the reasons he provides at paragraph [81- 82].
4. I am not however persuaded that the requirement to cross a road of itself is sufficient to render the on-street parking proposed inconsistent with the RMS guidelines. However with the benefit of a site inspection I accept the evidence of Mr McCarthy that some of the proposed locations for on street parking are distant from the site and are likely to be less attractive for parents utilising the centre. I find that in these circumstances the provision of on-street parking fails to satisfy the objective in DCP 2017 to: To ensure the adequate provision of car parking or to meet the intent of the RMS guidelines for the provision of convenient and safe on-street parking.
5. Consistent with the Court's decision in Assad v Inner West Council [2017] NSWLEC 1362 at [49] I find that whilst the RMS Guidelines allow for a consideration of on street parking provision it needs to be considered a variation or a dispensation to the normal requirements. As noted by Brown C at [49] ' .. this is not a matter of right but a concession that may be used when other opportunities are available for safe and convenient parking and pick-up and drop-off facilities for children/parents/carers'. In this development on-street parking is proposed as the sole option for parents and the majority option for staff. Importantly in this development no other opportunities for drop off and pick up of children are proposed by the applicant who relies solely on on-street parking to service the use.
6. Further any dispensation should be considered in the context of Council's planning controls and their objectives (refer paragraph [17]). I am satisfied that the development as proposed fails to ensure the adequate provision of parking and as such a variation to the DCP controls is not supported.
7. Whilst the joint expert report raises the potential of the introduction of time restricted on-street parking across the frontages of the site in Walton Crescent and the Great North Road this was not adopted by the applicant. I am satisfied that imposing such a restriction on the development is not appropriately addressed through a condition of consent as such an approval is subject to, amongst other things, a the decision of the relevant Local Traffic Committee. Further to do so would defer final consideration of a fundamental matter to post determination.
8. In conclusion, I find the application provides insufficient justification to warrant such a significant departure from Council's parking requirements and the guidance provided by the RMS Guidelines.
9. The responsibility for the mitigation of impacts arising from the development rests with the applicant and in this matter I am satisfied that the proposal to provide all parent parking offsite is not an appropriate means of mitigating the parking demand generated by the development. In the circumstances of this case I find that the reliance on utilisation of on-street parking to deliver all of the required parent parking for the proposed development is a sufficiently detrimental impact on the locality to warrant refusal of the application pursuant to S79C(1)(b) of the Act (now s4.15(b)).

Orders:

1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. No order as to costs; 3. The appeal is dismissed; 4. Development application DA 2016/0513 for alterations and additions to an existing two storey heritage building, construction of a rear addition and tree removal to facilitate the use of the subject site as a childcare centre for 80 children at 380 Great North Road, Abbotsford is refused. 5. The exhibits are returned with the exception of Exhibits 1, A, B, D and E. ……………. D M Dickson Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2018