PJM Group Pty Ltd v Ku-ring-gai Council

The site and its context

1. The site is located on a corner with a primary frontage to the Pacific Highway and a secondary frontage to Finlay Road. The land is zoned R4 High Density Residential under the LEP and development for the purpose of a centre-based childcare facility is a permitted use with development consent. Because the Pacific Highway is a classified road with an average daily traffic volume of approximately 65,000 vehicles (based on the RMS vehicle counter Station Id: 53003), cl 101 of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applies and identifies the proposed childcare centre as a sensitive use of the site.
2. The site contains a single storey brick and sandstone Federation-style building which is the locally listed Heritage Item. The dwelling was built between 1907 and 1908 and is in a poor state of repair. Nonetheless, the Council contends that there is sufficient original fabric remaining to allow for the building's restoration and adaptive reuse. The Council's evidence describes the building as "…an established and prominent historic building, within its historical setting, on the prominent corner of Finlay Road and the Pacific Highway".
3. The site contains a number of large trees within the front setback and native vegetation at the rear which has been determined to be representative of BGHF. The BGHF has been mapped as an area of "biodiversity significance" under the LEP.
4. The local area is characterised by high-density residential development on either side of the Pacific Highway. The site benefits from a 1.2m wide drainage easement over the two downstream properties to the southeast at 1454 Pacific Highway, which drain to the public drainage system at the rear of 1454 Pacific Highway (as approved by the Court in proceedings 2015/10113).
5. To the southwest and immediately adjacent to the rear half of the site is a five-storey residential flat building at No. 2-4 Finlay Road.
6. Development adjoining the site to the southeast comprises two vacant dwellings at 1456 and 1456A Pacific Highway. A development on those allotments was approved by the Court on 29 June 2020 (proceedings 2019/262907) for the demolition of existing structures and the construction of a residential flat building comprising 36 units, basement parking and associated landscaping.
7. There is an intact dwelling of the same Federation-period, that is opposite the site at 1-3 Lowther Park Avenue, Warrawee ("Milner Royd", residential flat building) which is also a locally listed heritage item (I167).
8. The Warrawee Public School is located to the northwest of the site, on the corner of Finlay Road and the Pacific Highway and zoned SP2 Infrastructure under the LEP.

Contentions

1. The Council's Amended Statement of Facts and Contentions filed on 24 November 2021 (ASOFAC) (Ex 1) has raised 22 contentions. A number of those contentions have been resolved through joint conferencing and the preparation of joint expert reports from the following experts: Expertise Applicant Council Exhibits Acoustic Mr W Wang Mr T Taylor JER Ex 15 Annexure C to Ex 15 - Ex X Air Quality Mr D Roddis Mr A Todoroski JER Ex 5 Suppl. Statement by Mr Roddis Ex N Ecology Dr A Clements Mr J Whyte Ex 13 Heritage Mr A Kilias Mr A Almasan Ex 10 Landscaping Mr R Frew Ms R Askew Ex 7 Planning Mr J Wood Mr S McInnes Ex 4 Stormwater Engineering Mr M Boudib Mr B O'Connell Ex 9 Structural Engineering Mr V Betro Mr H Gohil Ex 10 Traffic Engineers Mr M Stanbury Mr B O'Connell Ex 6

1. There remains three broad topics of dispute between the parties: site suitability in terms of air quality and noise and demolition of the Heritage Item.

Decision

1. For the reasons that follow, I have decided to grant conditional consent to the proposed development.

Jurisdictional prerequisites to the grant of development consent

1. Before addressing the contested issues, it is to be noted that I am satisfied about the following matters.

Landowner's consent

1. The landowner of the site on which the development is proposed provided their consent to the DA when it was lodged.

Notification requirements

1. The DA was appropriately notified by the Council pursuant to the EPA Act between 10 February 2021 to 12 March 2021. Nineteen (19) submissions were made to the Council in response. These written submissions are before the Court and have been considered.
2. Notification of the amended DA plans has been appropriately carried out between 24 November 2021 and 8 December 2021. No further submissions were received in response to the amendments.
3. On 1 March 2022, a number of State Environmental Planning Policies (SEPPs) were repealed and consolidated into 11 new SEPPs. The consolidation did not introduce any amendment to the former SEPPs, other than renumbering and changes consequent to the consolidation. For present purposes and for ease of reference, I will make reference to the provisions of the former SEPPs which were referred to in the evidence at the hearing.

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Education SEPP)

1. After reservation of my judgment, on 1 March 2022 the Education SEPP was repealed and replaced by the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport & Infrastructure SEPP). However, I do not consider the Transport & Infrastructure SEPP to be relevant because the savings provisions within Sch 9 of the Transport & Infrastructure SEPP provide that the Education SEPP continues to apply to development applications made but not finally determined before 1 March 2022. Accordingly, as this DA has not been finally determined before 1 March 2022, the provisions of the Education SEPP continue to apply in this case.
2. Part 3 of the Education SEPP contains provisions applicable to centre-based childcare facilities. Clause 22 applies to development for the purpose of a centre-based childcare facility if: (a) the floor area of the building or place does not comply with regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, or (b) the outdoor space requirements for the building or place do not comply with regulation 108 (outdoor unencumbered space requirements) of those Regulations.
3. Pursuant to cl 22(2), the consent authority must not grant development consent to development to which this clause applies except with the concurrence of the Regulatory Authority.
4. In this case, the architectural plans demonstrate that the floor areas of the building and outdoor spaces comply with regs 107 and 108 of the Education and Care Services National Regulations. Therefore, concurrence of the Regulatory Authority for the purposes of cl 22 of the Education SEPP is not required.
5. Clause 23 requires the consent authority to take into consideration the Child Care Planning Guideline. These guidelines are comprehensively addressed in the Statement of Environmental Effects prepared by Think Planners Pty Ltd dated 2 December 2021 (Ex O) and have been considered in my assessment of this application.

Education and Care Services National Regulations (National Regulations)

1. The relevant provisions of the National Regulations including the Children (Education and Care Services) Supplementary Provisions Regulations 2012 are also satisfactorily addressed by the evidence before the Court. It is to be noted that the childcare centre has been designed in accordance with Pt 3 Facilities and equipment requirements of the National Regulations. To that end, the proposed childcare centre will include:

• office administration area and staff rooms
• indoor space (unencumbered) of 3.25m2 per child
• outdoor space of 7m2 per child
• a laundry facility at site
• craft sinks and areas in the playrooms
• a food preparation - kitchen area where children are prevented from accessing
• nominated children toilet facilities
• a nappy changing area
• probity check requirements
• staffing requirements
• a sleeping area - cot room
• storage areas adjoining the playrooms and outdoor space

State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55)

1. Clause 7 of SEPP 55 requires the consent authority to consider whether the land is contaminated and if contaminated, whether it is satisfied that the land is suitable for the purpose for which the development is proposed to be carried out.
2. A Detailed Site Investigation (DSI) (Stage 2 Contamination Assessment) (Ex Q) and Remediation Action Plan (RAP) (Ex R) have been prepared by Ground Technologies, both dated 22 July 2021, and deal with the considerations raised in SEPP 55.
3. The RAP identified two key areas of concern owing to identification for potential lead (TPH (C10-C40)) and benzo(a)pyrene contamination as well as potential asbestos in proximity to the driveway area. Remedial strategies are provided and, on that basis, once the remediation works are complete, I am satisfied on the advice of the experts that the site will be suitable for the childcare centre. Accordingly, cl 7 of SEPP 55 has been satisfactorily addressed.

Infrastructure SEPP

1. Clause 45 of the Infrastructure SEPP is not engaged as the works will not occur within 5m of an exposed overhead electricity power line; hence, the proposal does not require referral to the electricity supply authority.
2. The proposal also does not impact on rail infrastructure and is not required to be referred to the rail authority: Infrastructure SEPP cl 86.

Ku-ring-gai Local Environmental Plan 2015 (LEP)

1. Accepting that a "centre-based childcare facility" is permissible with consent within the R4 zone, the following objectives are relevant: Zone R4 High Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for high density residential housing close to public transport, services and employment opportunities.
2. The planners are agreed that the relevant zone objectives are achieved by the proposed development in that it will provide valuable childcare services to meet the day-to-day needs of the residents. Therefore, the proposed development is consistent with the objectives of the zone.

Clause 2.7 Demolition requires development consent

1. The provisions of cl 2.7 are applicable to the proposed development and addressed in the amended DA which seeks demolition in accordance with the submitted Demolition Plan (Ex A, A02.01 Issue D).

Clause 4.3 Height of buildings

1. Clause 4.3 contains the maximum height control for the site. The Height of Buildings Map contained in the LEP nominates a maximum height of 11.5m. The proposed development has been designed with a two-storey form and presents at approximately 8.5m at its highest point and is under the maximum height limit and thereby, complies with the development standard in cl 4.3.

Clause 4.4 Floor space ratio (FSR)

1. Clause 4.4 contains the maximum FSR control for the site. The FSR control for the site, as contained in the Floor Space Ratio Map, is 0.85:1. The proposed childcare centre presents a maximum FSR of 0.33:1 and as such, complies with the development standard in cl 4.4.

Clause 6.1 Acid sulfate soils

1. Clause 6.1 applies to the proposed development. The site is mapped as Class 5 Acid sulfate soils however, the works are not within 500m of Class 1, 2, 3 or 4 land and is not below 5m ADH. Therefore, the clause is not engaged.

Clause 6.2 Earthworks

1. Clause 6.2 applies to the site. Based on the evidence, I am satisfied that the proposed excavations, particularly for the basement carpark will have minimal adverse environmental and amenity impacts. It is fair to say that a basement in an R4 zone context is expected, and the design appropriately responds to the unique nature of the characteristics of the site and the relevant planning controls that apply to the site. I also accept the experts' assessment that it is unlikely that the excavation will lead to the disturbance of relics.
2. A geotechnical report prepared by Martens Consulting Engineers (Ex V) is provided with the amended DA, and in my assessment deals satisfactorily with the relevant matters for consideration in cl 6.2(3). A waste management plan (Ex W) is also provided to accompany and detail the adequate waste management plan required by Part 23.8R of the Ku-ring-gai Development Control Plan (DCP), detailing appropriate measures to avoid, minimise or mitigate the impacts associated with constructing a basement carpark.

Clause 6.3 Biodiversity protection

1. Clause 6.3 applies to the site. As noted, the site is identified on the Council's Natural Resources Biodiversity Map however, it only clips the south-western corner. Relevant ecology assessment has been prepared as part of the appeal that deals with this issue and the agreed expert assessment of the ecologists (Exs U and 13) is that the impacts of the proposed development are acceptable. I accept that evidence.

Clause 6.5 Stormwater and water sensitive urban design

1. Clause 6.5 applies to the site and the applicant relies on the stormwater management plan prepared as part of the amended DA.
2. The experts have assessed the stormwater management plan and agree that the proposed development incorporates water sensitive urban design principles that seek to minimise and manage the impact of stormwater on site and within the area (Ex D).
3. Accordingly, I am satisfied that the issues relating to stormwater management have been satisfactorily addressed, as explained in Ex 9.

Heritage

1. Clause 5.10 of the LEP applies to the site, and relevantly provides as follows: 5.10 Heritage conservation Note - Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5. (1) Objectives The objectives of this clause are as follows - (a) to conserve the environmental heritage of Ku-ring-gai, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance. (2) Requirement for consent Development consent is required for any of the following - (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance) - (i) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area, (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, (c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed, (d) disturbing or excavating an Aboriginal place of heritage significance, (e) erecting a building on land - (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance, (f) subdividing land - (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance. (3) … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development - (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause. (7) Archaeological sites The consent authority must, before granting consent under this clause to the carrying out of development on an archaeological site (other than land listed on the State Heritage Register or to which an interim heritage order under the Heritage Act 1977 applies) - (a) notify the Heritage Council of its intention to grant consent, and (b) take into consideration any response received from the Heritage Council within 28 days after the notice is sent. (8) Aboriginal places of heritage significance The consent authority must, before granting consent under this clause to the carrying out of development in an Aboriginal place of heritage significance - (a) consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place by means of an adequate investigation and assessment (which may involve consideration of a heritage impact statement), and (b) notify the local Aboriginal communities, in writing or in such other manner as may be appropriate, about the application and take into consideration any response received within 28 days after the notice is sent. (9) Demolition of nominated State heritage items The consent authority must, before granting consent under this clause for the demolition of a nominated State heritage item - (a) notify the Heritage Council about the application, and (b) take into consideration any response received from the Heritage Council within 28 days after the notice is sent. (10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that - (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.
2. Part 19B.2 of the DCP is also relevant and provides as follows: "19B.2 DEMOLITION RELATED TO A HERITAGE ITEM Objectives 1 To ensure that Heritage Items and all significant elements of Heritage Items are retained and conserved. 2 To provide a photographic record of a Heritage Item before and during major works including demolition. Controls 1 In accordance with the Ku-ring-gai Local Environmental Plan, development consent is required for: i) Demolishing, moving or altering the exterior of (including, in the case of a building, making changes to its detail, fabric, finish or appearance) an Aboriginal object or heritage item; and ii) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item. Demolition of a Heritage Item 2 The demolition of a Heritage Item, including buildings, other structures, trees and landscape features, is not supported. 3 Council will only consider the demolition of a Heritage Item where an applicant can satisfactorily demonstrate: i) retention and stabilisation of the building or structure is unreasonable, taking into consideration the following: - the heritage significance of the property - whether the building constitutes a danger to the public ii) all alternatives to demolition have been considered with reasons provided as to why the alternatives are not acceptable…"
3. Clause 5.10 of the LEP specifically provides me with the power to grant development consent for demolition of a heritage item. In this case, a Federation dwelling which is listed as a local heritage item, outside an identified conservation area.
4. The DCP also addresses demolition of a heritage item and in Part 19B.2 sets out relevant considerations which are a focus in my assessment of this application.
5. In that regard, Part 19B.2 Control 3 of the DCP provides that the Court can only consider the demolition of a heritage item where the applicant has satisfactorily demonstrated that: "i) retention and stabilisation of the building or structure is unreasonable, taking into consideration the following: - the heritage significance of the property - whether the building constitutes a danger to the public ii) all alternatives to demolition have been considered with reasons provided as to why the alternatives are not acceptable."
6. The applicant relies on a series of expert reports to address the provisions of the DCP. In particular, the Heritage Impact Statement (HIS) prepared by its heritage consultant, Mr Kilias to satisfactorily demonstrate that retention and stabilisation of the building is unreasonable in the circumstances of this case.
7. In Chapter 4.2 of Ex H, Mr Kilias specifically addresses Control 3(i) by reference to the criterion issued by the Heritage Council of NSW. His assessment is set out in tabular form and is reproduced below: Criterion Significance Assessment Research has not been able to uncover any particular historical events or moments that the site is able to represent. A - Historical Significance Notwithstanding, the dwelling could be representative of the early-20th An item is important in the course or century growth of Turramurra as a residential area in Sydney's northern pattern of the local area's (or NSW's) cultural or natural history. suburbs. However, due to a lack of fabric intactness and integrity, this significance is not able to be meaningfully demonstrated. This criterion is therefore unable to be met. B - Associative Significance There is no evidence to suggest that the subject site has any historically significant associations. An item has strong or special associations with the life or works of a person, or group of persons, of importance in the local area's (or NSW's) cultural or natural history. This criterion is therefore unable to be met. Although the masonry building envelope remains extant, the majority of the building's original fabric has been removed, such that any aesthetic significance has been extinguished. C - Aesthetic Significance The remnant fabric of the building suggests a modest family home An item is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in the local area (or NSW). which dates to the early-20th century, however it cannot be concluded that the dwelling - even if it were more intact - would necessarily be an important, interesting or particularly fine example of its type. Accordingly, this criterion is unable to be demonstrated. D - Social Significance The property has no known significant associations with any important or identified social groups or communities. An item has strong or special association with a particular community or cultural group in the local area (or NSW) for social, cultural or spiritual reasons. This criterion is therefore unable to be met. The subject dwelling was constructed using materials and techniques which were common at the time, including within the local area. The E - Research Potential site is therefore unable to yield any information which could meaningfully contribute to an understanding of this typology. An item has potential to yield information that will contribute to an understanding of the local area's (or NSW's) cultural or natural history. No archaeological deposits are known, and it is beyond the scope of this HIS to assess the archaeological potential of the site. This criterion is therefore unable to be met. F - Rarity Residential dwellings from the early-20th century are not rare in the local area or in the wider Sydney region. An item possesses uncommon, rare or Rarity value is therefore unable to be demonstrated. endangered aspects of the local area's (or NSW's) cultural or natural history. G - Representative An item is important in demonstrating the principal characteristics of a class of the local area's (or NSW's): The dwelling has lost much of its fabric, elements and detailing, such that it is unable to be considered a meaningful or good representative example of an early-20th century residential dwelling. ▪ cultural or natural places; or This criterion is therefore unable to be met. ▪ cultural or natural environments.

1. In short, Mr Kilias concludes in response to Control 3(i) that: "…there are no particular historical events or people which can be meaningfully associated with the dwelling or with the site. The majority of the building's fabric, both externally and internally, has been removed or poorly maintained over time, such that its ability to demonstrate a good or intact representative example of an early-20th century residential dwelling has been irreversibly extinguished. The external presentation and internal arrangement of the remnant structure suggest that the dwelling was always meant as a modest and unremarkable private residence." (Ex H 4.2.3)
2. In relation to Control 3(ii), whether the building constitutes a danger to the public the applicant relies on the structural report prepared by BG&E Pty Ltd (Attachment I in Ex 10) to demonstrate that the building is presently in a dangerous state of repair. The structural report states that: "Overall the structure on 1458 Pacific Highway, Turramurra is in an extremely dilapidated condition. … the existing structure will require an extensive degree of remediation and strengthening or total replacement in order for the building to meet the requirements of current Building Codes & Standards…" and qualifies that structural assessment by noting that: "[c]arrying out the remediation works will not guarantee that the building structure will not be susceptible to future structural issues and therefore full demolition/replacement has been recommended" (p 9).
3. The applicant submits that the costs of retention and stabilisation as assessed by the applicant's quantity surveyor for use as a childcare centre are unreasonable and exorbitant being in the order of $4,523,320.00. Such costs are advanced as further reason to demonstrate demolition rather than remediation of the building in the alternative scenario. The HIS prepared by Urbis dated 3 November 2020 also supports demolition of the Heritage Item (Ex H).
4. Ultimately, given its current state of disrepair, the applicant's heritage and structural engineering evidence is that this pedestrian example of an early 20th century private dwelling is of no architectural merit and its retention and stabilisation is unreasonable, having regard to the considerations raised by the DCP and the building should be allowed to be demolished.
5. The Council is generally critical of the applicant's evidence, and contends on its evidence that the building is not beyond repair. It submits that the applicant's quantity surveyor has jumped the gun in circumstances where the engineers are of a view that further inspection is needed. For example, there has not been any sampling of the soil to work out why the building is settling. Nor inspections of the roof for termite damage. The extent of the work is described as speculative.
6. Additionally, the Council contends on the evidence of Mr Gohil (Ex 10) that the applicant's structural engineer's report does not provide a scope of works to better quantify the unreasonableness of the rectification costs identified by the applicant's expert. The Council also complains that there has been no exploration of all alternatives and for those reasons, the DCP requirements have not been satisfactorily demonstrated. The question of costs in bringing the building up to code of a childcare centre is not the test.
7. Ultimately, the Council submits that the key features of the Federation Queen Anne style exist and as one of the few surviving examples of the Turramurra Heights subdivision, the Heritage Item should not be demolished, particularly when the engineers have identified that there are mechanisms for its retention. As to a danger to the public, the Council submits that the Court would not have carried out the site inspection at the commencement of the hearing if the site was dangerous (Ex J). As it stands, the Council contends there is no evidence that the building presents a danger to the public.

Consideration - heritage

1. The Court is required for the purposes of assessment of the consequences of demolition of a heritage item to undertake an actual assessment of the evidence in relation to the significance of the Heritage Item.
2. The starting point is the Statement of Significance which needs to be read as a whole. Relevantly, it describes the Heritage Item in the following terms: "The house at 1458 Pacific Highway Turramurra is a representative but deteriorated example of middle class housing on the upper north shore during the Federation period. It dates from the key period of development for the area and is one of the earliest surviving houses from the Turramurra Heights subdivision of 1904. It makes a positive contribution to the streetscape but this has been restricted by the overgrown gardens, which screen the building. The house demonstrates some of the key aspects of the Federation Queen Anne style although there are better and more refined examples in the local area, which are also Heritage Listed. The setting of the house has been compromised by subdivision of the site into 3 lots and those lots now having been redeveloped for multi storey residential apartments." (Ex 10, Attachment G)
3. The applicant submits that the Statement of Significance does not articulate a strong case for the retention of the Heritage Item. Nor do the earlier HIS reports before the Court dated 2014, 2015 and 2017 (Ex 10 Attachments B-D). Based on my reading of these documents and reports, I accept that to be the fact. The evidence is clear that there are "better and more refined examples in the local area" (Ex 10) of a dwelling of this period.
4. Although Mr Betro accepts that anything can be remediated, rebuilt or restored, the applicant quite properly submits that is not the point, it is a question of proportionality:

• whether the proportionality of costs is adequate; and
• whether that is proportionate to the degree of heritage significance.

1. In this case the Heritage Item is compromised by subdivision of its curtilage and its location adjoining high rise residential apartments. The dwelling is not located within a conservation area and the experts agree that a more intact example of a Federation dwelling of that period exists across the road. The dwelling that I inspected is deteriorated and during the view, I was directed by the parties' witnesses to avoid the missing floorboard, broken tiles and glass and collapsing ceiling. The building based on my observations and the applicant's evidence is in serious disrepair and a danger to the public. And, although the building may at a significant cost be retained and stabilised, I do not accept the evidence of Mr Gohil that given the compromised structural condition of the building such restoration costs are reasonable when the heritage evidence raises real issue with the building's heritage significance. Even if restored, the dwelling will inevitably be a new building with negligible significance according to Mr Kilias.
2. It is apparent that the condition of the building has deteriorated since its listing by the Council on the Heritage Register in the 1980s and since the Court's recent decision to approve the residential flat development on the adjoining properties. The consolidation of this site with adjoining sites is clearly no longer feasible to accommodate an adaptive reuse of the building given recent development approvals for the adjoining sites by this Court and the Council. On balance, I accept that the combination of the questionable heritage significance of what remains, the condition of the building today, its structural lack of integrity and the likely disproportionately high costs of repair of the building (certainly as a childcare centre) but arguably for any permitted use justifies that it is reasonable to approve the demolition of the building to allow for the proposed development in Ex A (Ex J).
3. Having considered the evidence against all relevant legislation and policy I find that the applicant has satisfactorily demonstrated the matters referred to in Control 3(i) and (ii) of the DCP, and that demolition of the building is acceptable in this case. In my assessment Mr Kilias' comprehensive table (above at [49]), the structural report and the QS report, together with my observations at the site view, support demolition of the building. Contrary to the Council's submission, there is no requirement to quantify the costs of all alternative permissible uses for the site in order to address Control 3(ii). The QS report dealing with the childcare centre is sufficient for present purposes. Clearly, the dwelling could remain a dwelling or be developed using the conservation incentives for some other permitted use. However, in my opinion, it is unreasonable to require the applicant in this particular case to quantify the costs of restoration for every permissible alternate use of this local heritage item.
4. In my assessment, a photographic record of the Heritage Item before demolition serves to record the Item for the future, mindful that there is a similar intact Federation dwelling locally listed across the road.

Air quality

1. Clause 101 of the Infrastructure SEPP provides: 101 Development with frontage to classified road (1) The objectives of this clause are - (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads. (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that - (a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of - (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
2. Clause 102 of the Infrastructure SEPP provides: 102 Impact of road noise or vibration on non-road development (1) This clause applies to development for any of the following purposes that is on land in or adjacent to the road corridor for a freeway, a tollway or a transitway or any other road with an annual average daily traffic volume of more than 20,000 vehicles (based on the traffic volume data published on the website of TfNSW) and that the consent authority considers is likely to be adversely affected by road noise or vibration - (a) residential accommodation, (b) a place of public worship, (c) a hospital, (d) an educational establishment or centre-based child care facility. (2) Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette. (3) If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded - (a) in any bedroom in the residential accommodation - 35 dB(A) at any time between 10 pm and 7 am, (b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway) - 40 dB(A) at any time. (4) In this clause, freeway, tollway and transitway have the same meanings as they have in the Roads Act 1993.
3. The objective in cl 101(1)(b) of the Infrastructure SEPP is to "prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads". As already identified, the proposed development is sited directly adjacent to the Pacific Highway, which is a classified road. Under cl 101(2)(c), the Court must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that: the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. (Emphasis added)
4. Also, relevant to the issue of air quality are the provisions of the Child Care Planning Guideline which are engaged by cl 23 of the Education SEPP.
5. The objective of the Child Care Planning Guideline is: "Objective: To ensure air quality is acceptable where child care facilities are proposed close to external sources of air pollution such as major roads and industrial development."
6. The relevant provisions of the Child Care Planning Guideline state: "C27 Locate child care facilities on sites which avoid or minimise the potential impact of external sources of air pollution such as major roads and industrial development. C28 A suitably qualified air quality professional should prepare an air quality assessment report to demonstrate that proposed child care facilities close to major roads or industrial developments can meet air quality standards in accordance with relevant legislation and guidelines. The air quality assessment report should evaluate design considerations to minimise air pollution such as: • creating an appropriate separation distance between the facility and the pollution source. The location of play areas, sleeping areas and outdoor areas should be as far as practicable from the major source of air pollution • using landscaping to act as a filter for air pollution generated by traffic and industry. Landscaping has the added benefit of improving aesthetics and minimising visual intrusion from an adjacent roadway • incorporating ventilation design into the design of the facility"
7. Clause 2.4.2 of the Development Near Rail Corridors and Busy Roads - Interim Guidelines 2008 (Interim Guidelines), produced by the Department of Planning called up by the Infrastructure SEPP, states: "Where new schools and childcare centres are being considered, the design should ensure that there is sufficient separation from 'busy' roads and rail corridors to avoid adverse noise and air quality impacts."
8. The applicant submits that the Department of Planning's Interim Guidelines do not proscribe this type of development adjacent to a classified road. Instead, the Interim Guidelines suggest the relocation of spaces and buildings around the site to create "a barrier or a buffer" to mitigate impacts (Tcpt, 6 December 2021, p 183(9-40)). In that regard, the Interim Guidelines provides: "Measures to avoid, reduce or mitigate noise and air quality impacts at childcare centres include: • Redesigning or relocating buildings to locate non-sensitive services like storage, bathrooms and carparking, in areas subject to noise and air pollution sources • Creating courtyards or play areas that are protected from noise and adverse air quality by buildings • Where sufficient land is available, selling some of the road frontage area to enable it to be used for less sensitive land uses, such as shops or businesses • Constructing solid noise wall barriers along the road frontage, taking into consideration any impacts on amenity, solar access, vegetation and safety." (Ex 2 Tab 7 p 427)
9. Relying on Fig 4.3 of the Interim Guidelines (below), the applicant submits that the proposed childcare centre building has been designed to act as a barrier to shield and protect sensitive areas from high-emissions zones.
10. Accepting as Fig 4.4 of the Interim Guidelines (below) demonstrates air pollution concentrations tend to be at their highest levels adjacent to the road and decrease with distance from it the applicant contends on the evidence of Mr Roddis and Mr Wang that the proposed development has utilised good acoustic and design measures to minimise adverse noise impacts as well as air pollution, for example:

• appropriate use of external courtyard areas and internal rooms;
• incorporation of appropriate separate distance between the outdoor play area and the road to be as far as practical from the major source of air pollution. (Ex 2 Tab 7 p 452 (Fig 4.4))

1. While the objective of the Interim Guidelines is to "ensure that setbacks from the boundary of a childcare facility are consistent with the predominant development within the immediate context", it does not reference a classified road, however C13 of the Child Care Planning Guideline does, and relevantly states: "Where there are no prevailing setback controls minimum setback to a classified road should be 10 metres…"
2. Accepting that there is no minimum setback to the frontage and a 10m setback is considered appropriate under the Child Care Planning Guideline, the development is more than compliant.
3. It is also the case that C5 of Part 10A.1 of the DCP does not proscribe the childcare centre from being sited near a major (classified) road provided it can be demonstrated that the site is safe for use. The applicant relies on Mr Roddis' report Ex C to demonstrate that fact.
4. Mr Roddis has assessed the level of air quality for the proposed use of the site as a childcare centre as acceptable because the OPAs are 20m distant from the roadway (Ex C). It is Mr Roddis' expert assessment that: "By siting the outdoor play areas 20 m distant from the roadway, this represents a 65% reduction in air pollution exposure compared to roadside, or a 30% reduction compared to exposure at 10 m from the roadway (i.e. an approximation if the outdoor play area was located to the front of the building)." (p 20)
5. His evidence is that: "The annual average PM2.5 increment from the Pacific Highway at the revised outdoor play area locations [having been moved from the front of the site to the rear] is predicted to be 0.7μg/m3 or less. This would place the acceptability of the risk as "tolerable" within suggested health criteria…"
6. Mr Roddis is confident in his assessment that the air quality will be acceptable for occupants of the childcare facility because the design of the facility appropriately minimises the potential impact of external sources of air pollution from the Pacific Highway.
7. It is Mr Roddis' considered opinion that the facility will achieve air quality standards in accordance with relevant legislation and guidelines. In forming that view, Mr Roddis supported the following design considerations to minimise air pollution: 1. Appropriate separation distances between the facility and the pollution source; placing the location of OPAs as far as practicable from the Pacific Highway. 2. A ventilation design has been incorporated in the design of the facility which adopts the following best-practice commitments to minimise air quality impacts upon the facility: 1. Fresh air intakes servicing the building air conditioning systems being located as far from the Pacific Highway as practicable (south-western façade of the building). 2. Allowance within the ventilation ductwork for (HEPA) filtration to remove fine particulate matter (PM2.5) prior to circulation through indoor areas. 3. Double door/air-lock entrance configuration to minimise unfiltered air ingress to the building. 4. As required, (i.e. for high pollution / bushfire days), the opportunity to operate the facility with sealed, filtered, air conditioned air within the building (pp 22-23).

Consideration - air quality

1. A central issue for the Council, is that there is no information about the actual PM2.5 concentration at the site. Although sampling was taken and tendered as part of the Class 1 application (Ex 16), it was never tested, and the applicant's air quality expert only tested for the PM10 concentration.
2. That said, Mr Roddis, when questioned about the issue gave evidence that testing at the site was not required, in fact "pragmatically unfeasible" (Tcpt, 6 December 2021, p 227(1-12)). It is also the case that Mr Todoroski did not give evidence that such testing was required, only desirable. In that circumstance, reliance on the Macquarie Park average for the baseline PM2.5 (which the experts accept is similar to the site) seems appropriate, albeit it needs to be adjusted to take account of the roads. To the extent that the Council references the NEPM, I accept, as the applicant submits, that it is not a document of prescription or document of criterion. It is a document representing a national environmental protection goal. The NEPM sets a target goal nominating 8µg/m3 for an annual amount (Table 1) and Table 2 sets the standard for 2025 as 7µg/m3 as a goal. If exceeded, then you undertake all reasonable and feasible measures to ameliorate that exceedance. It is not, as the applicant submits, a binary decision of yes or no if the criterion is exceeded.
3. As Mr Galasso SC identified the reasonable and feasible measures adopted in this case in relation to the 0-2-year-old play area adjacent to Finlay Road includes a barrier between OPA 1 and the Pacific Highway. It is in the form of the external storage module which can be seen in the plan on sheet 3.01. It is a significant element of that frontage. To the right of the storage area the plan identifies a 1.8m high balustrade with Perspex backing that is a hard barrier to the road. At the bottom of that OPA on the other two boundaries of that play area there is a 1.8m balustrade with Perspex backing at the 0-2-year-old level. There is another 1.2m of physical barrier above the children in that area. Sheet 4.04 of the proposed plans in the bottom elevation prescribes the height of the palisade fence with the Perspex behind being approximately the height of one of the two silhouette figures in that location. A height below the masonry-built form of the external storage adjacent to them which is significantly higher than the 1.8m barrier.
4. In relation to the Council's concern that there is no sufficient shielding to Finlay Road, or consideration of the basement carpark adjoining the site (exhaust stack), it is to be noted that the plans show that there is the physical barrier of the Perspex screen along that boundary. And, while the traffic on Finlay Road and the basement carpark equally is nothing like the traffic volume of the Pacific Highway, there is a separation by a 1.8m palisade fence. Also, the Plan of Management (POM) indicates that the play time is outside of the peak drop off and peak pick up for the childcare centre in any case. In terms of what is described as "the exhaust stack" from the adjacent residential flat building the evidence from the experts is that this is a relatively benign aspect in any event.
5. These design elements, it is submitted, serve to protect the children in this location, acknowledging that this play area is already located about 20m back or thereabouts from frontage.
6. Bearing in mind what the SEPP Infrastructure guidelines said about the 20m separation distance from the curbside and the design elements included in the plans, I accept there is no foundation to this being a problematic play area. Mr Roddis models it as 0.77 (PM2.5) which is within an acceptable range. I accept his assessment for the reasons stated in his report as summarised earlier at [77].
7. Mr Todoroski has not undertaken an assessment similar to the air quality assessment, which is Ex C, he does not formulate a number. He seeks to adjust an assumption of starting with Mr Roddis' number, I am satisfied on Mr Roddis' evidence that the final figure is less than 8µg/m3 if that be the test. This includes 0.77µg/m3 for the road even with the additional allowance, it falls well within the range of "tolerable". Mr Todoroski suggests an alloance to the range between 0.5 and 1 - though suggests 0.5µg as acceptable. Mr Roddis' figure seems appropriate - less than 1. Coupled with the fact that Mr Todoroski at par 112 of the joint report acknowledges that the "general design of the facility is good", I accept the children will be separated from the air source consistent with the Guideline.
8. In short, I accept that the methodology employed by Mr Roddis, even with its limitations, has triggered the incorporation of design features which, in my assessment, are reasonable and feasible measures that will ameliorate potential vehicle emissions within the site of the development arising from the adjacent classified road. As such, air quality is not a basis for refusal of this development. Each case must be assessed on its own facts.
9. Finally, there was a submission that this appeal fails the "precautionary principle" (Council's written submissions at par 65). However, as Mr Galasso submits, there is nothing in the evidence or in the criteria or in the assessment that is before this Court that establishes a position in which this application would fail the precautionary principle. Whilst it is located adjacent to the Pacific Highway, I am satisfied on the evidence that the design approach and the ameliorative elements, together with the assessment that has been undertaken in terms of the impact of that highway are such that this is an appropriate design for a development in this location.

Acoustic

1. To a certain extent, the protective devices and mitigation features which ameliorate adverse air quality impacts also assist the protection of the children from the roadway for acoustic reasons.
2. Part 10C.2 of the DCP states: "Objectives 1 To minimise the impact of the child care centre on the acoustic privacy of neighbouring developments. Controls 1 Where a child care centre is to be located on a site adjoining a residential property, noise generated by the centre (e.g. children using outdoor and indoor areas) must meet the following criteria: i) If outdoor play will be limited to up to 2 hours (total) per day - Noise levels emitted from the outdoor play area shall not exceed the background noise level (L90, 15 min) by more than 10 dB as measured at any point on the adjoining residential properties; or ii) If outdoor play will be greater than 2 hours (total) per day - Noise levels emitted from the outdoor play area shall not exceed the background noise (L90, 15 min) level by more than 5 dB as measured at any point on the adjoining residential properties; and iii) Noise from indoor play- Noise levels emitted from indoor play must not exceed the background noise (L90, 15 min) level by more than 5 dB as measured at any point on the adjoining residential properties. 2 For requirements on noise levels associated with air conditioning, kitchen, bathroom, laundry ventilation, or other mechanical ventilation systems and other plant refer to Part 23.8 of this DCP."
3. The relevant objective and considerations of the Child Care Planning Guideline are as follows: "Objective: To minimise the impact of child care facilities on the acoustic privacy of neighbouring residential developments. C23 A new development, or development that includes alterations to more than 50 per cent of the existing floor area, and is located adjacent to residential accommodation should: • provide an acoustic fence along any boundary where the adjoining property contains a residential use. (An acoustic fence is one that is a solid, gap free fence). • ensure that mechanical plant or equipment is screened by solid, gap free material and constructed to reduce noise levels e.g. acoustic fence, building, or enclosure. C24 A suitably qualified acoustic professional should prepare an acoustic report which will cover the following matters: • identify an appropriate noise level for a child care facility located in residential and other zones • determine an appropriate background noise level for outdoor play areas during times they are proposed to be in use • determine the appropriate height of any acoustic fence to enable the noise criteria to be met." (p 16)
4. The applicant submits that there are essentially two relevant noise assessment criteria in the DCP. It is either background +10 dB or +5 dB. Where the activity is less noisy than the background +5 dB then the evidence is that you can have outdoor play for more than 2 hours a day; and according to the DCP, if you are noisier (background +10 dB), then you should be limited to 2 hours a day.
5. In terms of the POM and based on the oral evidence of the acoustic experts, the children in the facility will not play outdoors for more than 2 hours a day. The issue then becomes whether, if the criterion is +10 dB, the children have to all be outside at the same time, or whether it needs to be constrained.
6. Mr Wang's evidence is based on the DCP controls rather than the Education SEPP. However, cl 26 of the Education SEPP makes it clear that noise criteria set out in the DCP is overridden by the State policy (the Child Care Planning Guideline). The clause provides as follows: 26 Centre-based child care facility - development control plans (1) A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility - (a) operational or management plans or arrangements (including hours of operation), (b) demonstrated need or demand for child care services, (c) proximity of facility to other early education and care facilities, (d) any matter relating to development for the purpose of a centre-based child care facility contained in - (i) the design principles set out in Part 2 of the Child Care Planning Guideline, or (ii) the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates). (2) This clause applies regardless of when the development control plan was made.
7. The Child Care Planning Guideline enables an acoustic professional like Mr Wang to formulate a site-specific criteria as an appropriate noise level for the childcare facility (Child Care Planning Guideline C24), and Mr Wang has done so in his acoustic report by reference to the Association of Australasian Acoustical Consultants Guideline for Child Care Centre Acoustic Assessment (Version 3.0) (AAAC Guideline) (Ex X).
8. The applicant submits that that is an appropriate approach to the acoustic matter and that in consideration of the evidence before the Court, a background noise level of +10 dB still achieves the objective of minimising the impact of a childcare centre on the acoustic privacy of neighbouring developments. It would simply permit two lots of two hours - two hours in the morning and two hours in the afternoon.
9. The applicant submits that under these circumstances, there is no need for a condition limiting outdoor play for all children to only two hours over the entire day.
10. The Council contends that the applicant's acoustic criteria is not justified from Ex E to Ex X. It submits that the criteria in Ex E referencing the AAAC criteria should be preferred (Ex 2 Tab 14 folio 928).
11. On that basis, the proposed development is unable to comply without limiting the number of children outside to 12-20 children at any one time and not using OPA 2 and OPA 3 simultaneously. This would mean that the proposed POM is unworkable as the children will not have sufficient outdoor activity.

Consideration - acoustic

1. In my assessment, the main acoustic issue lies in the number of hours the children can play outside. That is, whether it is limited to 2 hours or, based on Mr Wang's evidence, it can be greater than that timeframe.
2. Insofar as the POM is concerned, condition 85 addresses the requirement for a plan of management to deal with noise.
3. The only issue is whether to impose Council's proposed condition 85(b) in respect of the amended POM in Ex P.
4. Proposed condition 85(b) states: "Adopt the noise criterion prescribed by Part 23.8 of the DCP which limits noise emissions to background +5dB (A) limiting outdoor play to 2 hours for each age cohort."
5. The Council seeks to impose condition 85(b) in response to the evidence, and to mitigate where possible, adverse noise impacts to surrounding development.
6. The applicant says that the inclusion of condition 85(b) is a matter for the Court in circumstances where the current POM deals with the applicant's position regarding children play time and the evidence before the Court regarding the AAAC Guideline for background +10 dB for 4 hours. The applicant notes that the background +10 dB is not a less stringent criteria, but an alternate criterion based on the number of hours outside as detailed in the DCP listing either or option for outdoor play in i) and ii).
7. While I am satisfied that the POM will achieve an appropriate acoustic amenity for the affected residential properties, when read with the other conditions of consent (including conditions 32, 49, 70, 83, 84, 87, 89 and 94) and having regard to the design elements, I accept the imposition of condition 85(b) as proposed by the Council is appropriate to ensure that outcome is always achieved.

Traffic

1. At the hearing, one of the submitters to the original application, Mr Eggins gave oral evidence consistent with his written objection to the Council expressing concerns about traffic impacts (Ex 2 folio 23). He emphasised the existing traffic congestion currently experienced on Finlay Road which is generated by cars associated with drop off and pick up from the primary school across from the development site. In short, Mr Eggins believes that the proposed childcare centre use will exacerbate existing delays on Finlay Road.
2. While I understand Mr Eggins' genuine belief that traffic congestion will increase with an approval of the development, the experts' evidence does not support his concern. In these circumstances, and subject to the POM, I must accept the uncontested expert assessment.
3. As it presently stands, the existing dwelling is serviced by a single combined ingress/egress driveway connecting with Finlay Road in the western corner of the site. The current plans also propose a single combined 6.4m wide vehicular access to the site from Finlay Road in the same location. The experts are agreed that the proposed vehicular access to the site from Finlay Road will not adversely affect the safety, efficiency and ongoing operation of the Pacific Highway. Therefore, I am satisfied that cl 101(2)(a) has been met.
4. The applicant's Updated Parking and Traffic Impact Assessment Report prepared by Stanbury Traffic Planning dated October 2021 (Ex F) has addressed cl 101(2)(b) and concluded at p 35 that: "• The site access arrangements are projected to result in motorists being capable of entering and exiting the subject site in a safe and efficient manner; • The proposed off-street parking provision accords with the requirements of Ku-ring-gai DCP 2020, thereby indicating that there should not be any increased on-street parking demand as a result of the development; • The proposed allocation of off-street car parking between staff and parents/visitors is considered appropriate with respect to the expected operational characteristics of the centre; • The internal passenger vehicle circulation arrangements are envisaged to provide for safe and efficient internal manoeuvring; • The surrounding local road network operates with a reasonable level of service during peak periods; • The subject development has been projected to generate up to 60 vehicle movements to and from the site during weekday commuter peak hours; • The surrounding local road network is considered to be capable of accommodating the additional traffic projected to be generated by the subject development; • The nature, volume and frequency of vehicles utilising Pacific Highway to obtain access to the subject site will not unreasonably compromise the effective and ongoing operation and function of Pacific Highway; and • Construction activities associated with the proposed development are not envisaged to result in unreasonable impacts on the overall level of safety and efficiency afforded by the surrounding road network."
5. Based on that expert evidence, I am also satisfied that cl 101(2)(b)(iii) has also been met.
6. The childcare centre locates the play areas behind the building, using the building as a barrier and incorporates a double height glazed façade towards Pacific Highway with a glass roof that aligns with the findings of the Air Quality Assessment by Zephyr Environmental dated 28 October 2021 (Ex C) and the Acoustic Report by Day Design 28 October 2021 (Ex E). These measures will, in my assessment, appropriately address any unacceptable traffic noise from the classified road.
7. Additionally, the placement of a 1.8m noise acoustic barrier to mitigate noise transmission to adjoining properties around the edge of the 'ground floor' OPA (noting this area is elevated at the south-western portion of the site) and a 1.6m barrier at the 'first floor' OPA to insulate the children from some road noise will ensure that cl 101(2)(c) of the Infrastructure SEPP is satisfied. The traffic contention is not a basis for refusal of this application.

Conditions

1. On 9 December 2021 the parties submitted competing sets of conditions. The only condition in contention was condition 85(b) which the applicant has now indicated in an email dated 9 December 2021 that they would accept. Accordingly, I have imposed condition 85(b) as a condition of consent. In all other respects, I accept the Council's draft conditions of consent in this case. The recommendations of the experts in relation to ecology, landscaping, stormwater, engineering have been accommodated in the current plans and the conditions.

Conclusion

1. For all the above reasons, I find that the proposed development, as amended, has merit after assessment under s 4.15 of the EPA Act and that the grant of development consent subject to conditions is appropriate in this case.
2. The Court notes: 1. That Ku-ring-gai Council, as the relevant consent authority, has pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 consented to the applicant amending the development application DA0004/21. 2. The applicant uploaded the amended development application on the NSW planning portal on 13 December 2021 and filed a copy of the same with the Court.
3. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to development application no. DA0004/21 for the demolition of existing structures (including a locally listed heritage item) and the construction of a 75-place childcare centre and associated works at 1458 Pacific Highway, Turramurra, subject to conditions set out in Annexure A. 3. The exhibits are returned except for A, B, C, D, E, H, J, N, P, X, 1, 4, 5, 10, 15 and 16. ……………………….. S Dixon Senior Commissioner of the Court Annexure A (393302, pdf)

Amendments 21 April 2022 - Correction to placement of Figure 4.4 in [73]. 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: 01 June 2022