The Beresford Childcare Pty Limited v Strathfield Municipal Council

Environmental Planning and Assessment Act 1979

1. The objects of the EP&A Act are as follows: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment.
2. Section 4.15(3A) of the EP&A Act further provides that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. …

Strathfield Local Environmental Plan 2012

1. Development on the Subject Site is subject to the provisions of SLEP. The following provisions of SLEP are of particular relevance in this appeal: 1. Clause 2.1, which establishes land use zones within the area to which the plan applies as provided in cl 2.2 of SLEP. The Subject Site is zoned R2 Low Density Residential, and under the provisions of cl 2.3 of SLEP, the objectives of this zone are to: • provide for the housing needs of the community within a low density residential environment. • enable other land uses that provide facilities or services to meet the day to day needs of residents. • provide for development that is compatible with the character and amenity of the surrounding neighbourhood. • ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. 1. Clause 4.3, which provides a 9.5m height of building development standard applicable to the Subject Site, and the Proposed Development complies with this standard. 2. Clause 4.4, which provides a floor space ratio (FSR) development standard for the Subject Site of 0.5:1, and with which the Proposed Development complies.

State Environmental Planning Policy No 55 - Remediation of Land

1. Clause 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) requires: 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is - (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital - land - (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).
2. The Applicant has confirmed that a Preliminary and Detailed Site Investigation Report had been prepared by ADE Consulting Group on 31 January 2020 in fulfillment of the requirements of cl 7 of SEPP 55. The implementation of its recommendations is proposed as a condition of consent by the Applicant in these proceedings.

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

1. The Proposed Development is subject to the provisions of the Childcare SEPP, which aims to facilitate the effective delivery of educational establishments and early education and care facilities across the State of NSW.
2. Clause 8(1) of the Childcare SEPP provides that: Subject to subclause (2), if there is an inconsistency between this Policy and another environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
3. For completeness, I note that subcl 8(2) of the Childcare SEPP makes no reference to SLEP.
4. The following further provisions of the Childcare SEPP are of particular relevance in this appeal: 1. Clause 23, concerning centre-based child care facilities, the definition of which confirms the Proposed Development is such a facility, provides matters for consideration by consent authorities as follows: Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development. 1. Clause 25, which provides non-discretionary development standards for a centre-based childcare facility, as follows: (1) The object of this clause is to identify development standards for particular matters relating to a centre-based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters. (2) The following are non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of a centre-based child care facility - (a) location - the development may be located at any distance from an existing or proposed early education and care facility, (b) indoor or outdoor space (i) for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies - the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or (ii) for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies - the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause, (c) site area and site dimensions - the development may be located on a site of any size and have any length of street frontage or any allotment depth, (d) colour of building materials or shade structures - the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area. (3) To remove doubt, this clause does not prevent a consent authority from - (a) refusing a development application in relation to a matter not specified in subclause (2), or (b) granting development consent even though any standard specified in subclause (2) is not complied with. 1. Clause 26, which concerns the applicability of the provisions of development control plans in relation to centre-based child care facilities, and which provides as follows: (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.

Child Care Planning Guideline

1. The Child Care Planning Guideline (the Guideline) states that: "State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the SEPP) determines that a consent authority must take into consideration this Guideline when assessing a development application (DA) for a centre-based child care facility ('child care facility'). It also determines this Guideline will take precedence over a Development Control Plan (DCP), with some exceptions, where the two overlap in relation to a child care facility".
2. The objectives of the Guideline are to: • promote high quality planning and design of child care facilities in accordance with the physical requirements of the National Regulations; • ensure that child care facilities are compatible with the existing streetscape, context and neighbouring land uses; • minimise any adverse impacts of development on adjoining properties and the neighbourhood, including the natural and built environment; • deliver greater certainty to applicants, operators and the community by embedding the physical requirements for service approval into the planning requirements for child care facilities.
3. Section 2 of the Guideline provides design quality principles for centre-based child care facilities in relation to context, built form, adaptive learning spaces, sustainability, landscape, amenity and safety. Principle 6 which concerns amenity was identified by the Respondent as being a particular focus in this appeal and it provides as follows: "Good design positively influences internal and external amenity for children, staff and neighbours. Achieving good amenity contributes to positive learning environments and the well-being of students and staff. Good amenity combines appropriate and efficient indoor and outdoor learning spaces, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, service areas and ease of access for all age groups and degrees of mobility. Well-designed child care facilities provide comfortable, diverse and attractive spaces to learn, play and socialise."
4. Section 3 of the Guideline identifies matters for consideration which support the design principles and must be considered by the consent authority when assessing a DA for a childcare facility. 1. Subsection 3.5 provides guidance in relation to visual and acoustic privacy, and: 1. notes that: "Acoustic privacy involves reducing sound transmission between activity rooms and outdoor play areas of the child care facility and its neighbours. Design and site layout are the main ways of reducing acoustic impacts for example: • site context and orientation of the building • building design including the location of public and private open spaces and the arrangement of internal spaces • physical relationship to surrounding uses • building separation and providing physical barriers between the outdoor areas and the noise receivers. Outdoor areas near residential uses can be designed to encourage more passive activities. Acoustic attenuation measures can be used to reduce reflected noise and once a facility is operating the installation of public address systems should be discouraged." 1. provides the following two considerations with the objective of minimising 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."

Strathfield Consolidated Development Control Plan 2005

1. Notwithstanding that the provisions of cl 26 of the Childcare SEPP apply to the SCDCP, and set aside certain provisions of SCDCP, including in relation to the maximum number of children provided at section 5.17, the operation of some other provisions of SCDCP are not excluded by the Childcare SEPP and continue to apply to the Proposed Development.
2. Part E of SCDCP concerns development for the purposes of a child care centre, and aims "to achieve child care centre developments within Strathfield Municipality which are attractive and sympathetic to the streetscape, appropriate for the surrounding built and natural environment, have a minimum impact on surrounding land uses and are functional and economically viable". It includes the following two objectives of particular relevance given the contentions requiring resolution in this appeal: "(e) To ensure child care centres are located with adequate, convenient and safe parking for visitors that do not impose on any residential neighbourhoods or commercial areas. (f) To ensure that child care centres integrate into existing residential environments and are unobtrusive in terms of size, bulk, height and the amount of landscaped area provided."
3. The following sections of Part E of SCDCP are also of particular relevance in this appeal: 1. Section 5.2 concerning site requirements and which includes: 1. the following objectives: "• 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 • to ensure that a child care centre is located where it is safe for children and has a minimal impact on traffic and the amenity of residents." 1. the following guidelines that are of relevance given the contentions pressed in this appeal: "4. In residential areas, a minimum site area of 1,000 m² is required in order to overcome the potential problem of noise and nuisance (sites less than this requirement will be considered on a merits basis). The Proposed Development is compliant with this guideline. … 7. Child care centres shall be set back a minimum of 4 metres from side and rear boundaries. The Proposed Development is not compliant with this guideline." 1. Section 5.6 concerning traffic, parking and access, and which includes: 1. the following objectives: • to ensure that the relationship between child care centres and adjoining land uses are favourable in terms of parking, traffic and vehicular access; and • to ensure that a child care centre is safe for children. 1. the following guidelines that are of relevance in the appeal: "1. Car parking shall be provided at a rate of 1 space per employee (stack parking is permitted for staff parking) and 1 visitor space per 8 children or part thereof (stack parking is not permitted for parents or guardians). 2. Two (2) additional parking spaces are to be provided for any associated residence" 1. Section 5.9, concerning noise, and which includes: 1. the following objective: "To protect neighbours from excessive noise by ensuring that noise from a child care centre is not created by additional traffic, activities on and off the site (such as the dropping off and collecting of children) and children's activities on site." 1. the following guidelines: "The centre must be designed to minimise the impact of noise on surrounding properties. In this regard, the following must be addressed when designing a child care centre development: • access points should be located so as to minimise disruption to neighbours (ie to reduce the impact of gates opening and slamming car doors when children are dropped off and picked up); • playground areas should be appropriately located; • appropriate location of windows and doors; • no public address systems are to be installed at the centre; • the use of fencing and landscaping to reduce the impact of noise; and • the proposed hours of operation, particularly the impact of early morning starting times."

Contentions

1. As noted above at [16], the remaining contentions requiring resolution in this appeal concern the acceptability of the potential acoustic impacts on neighbouring properties in relation to the proposed childcare centre's unencumbered outdoor play area, and whether the Proposed Development is in the public interest. I will address these remaining contentions in that order.

Are the acoustic impacts associated with the unencumbered outdoor play area within the Proposed Development acceptable?

1. The Court was assisted in its consideration of this question by the acoustic experts, Dr Tonin and Mr Cooper, who had prepared a lengthy joint expert report, tendered as evidence at the hearing, and who provided expert oral testimony at the hearing.
2. Before assessing the merits of the Proposed Development in relation to its potential noise impacts, it is useful to review the circumstances of the outdoor play areas within the proposed childcare centre, and the nature of the noise assessment undertaken by the Applicant.

The arrangement of outdoor play areas

1. Within the Proposed Development there are three areas allocated to outdoor play, all located at the rear, southern, portion of the Subject Site, and contiguous with, the Proposed Development's indoor play area.
2. These three areas are: 1. an undercover play area of 82.73m2, located nearest the indoor play area, for use by up to 6 children aged 0 to 2 years old between 9am and 3pm; 2. an unencumbered play area of 316.51m2, located at the centre of the rear open area, for use by up to 7 children aged 2 to 6 years of age between 9am and 3pm; 3. a quiet play area of 106.29m2, located to the rear, southern end, of the Subject Site, for use by up to 7 children aged 2 to 6 years between 9am and 3pm.
3. The layout of these outdoor play areas is illustrated in the following figure, which formed part of the Applicant's amended plans, and in which their location is indicated by the red ellipse.
4. The principal contention between the Parties concerned the potential acoustic impacts related to the centrally located unencumbered outdoor play area and whether these potential acoustic impacts were acceptable.

The Applicant's assessment of potential noise impacts

1. Within their written and oral testimony, the acoustic experts had considered the potential noise impacts of the unencumbered outdoor play area, and in doing so had made reference to the Association of Australasian Acoustical Consultants (AAAC) Guideline for Childcare Centre Acoustic Assessment version 2.0 (the AAAC Guidelines).
2. The Parties submitted, and their experts agreed, that while the AAAC Guidelines was not a document of a type referred to in s 4.15(1) of the EP&A Act, it had been referred to in previous cases before the Court concerning proposed child care centres, and it had been applied in the assessment of potential noise impacts related to those cases.
3. I note that one such case is that of Childcare Property Holdings Pty Ltd (ACN 106 784 132) as trustee for the Childcare Property Holdings Trust v Parramatta City Council [2019] NSWLEC 1473, in which Commissioner Walsh made reference to the application of the AAAC Guidelines in the assessment of the potential acoustic impacts of a childcare centre in circumstances that involved acoustic experts other than those who appear in this matter.
4. The AAAC Guidelines provide numeric guidance on the acceptability or otherwise of noise emissions from childcare developments, in circumstances where statutory controls concerning the assessment of potential noise impacts are expressed qualitatively but would be assisted by quantitative guidance with respect to acceptable noise levels.
5. Within section 5.0 of the AAAC Guidelines the following guidance is provided in relation to the emission of noise from outdoor play area within child care centres where children are allowed to play outside for more than 2 hours per day: "The Leq, 15min noise level emitted from the outdoor play area shall not exceed the background noise level by more than 5dB at the assessment location."
6. Section 6.0 of the AAAC Guidelines provide quantitative estimates of the effective sound power levels emitted by children at play, and notes that: 1. the effective sound power levels of children playing varies widely depending on the age of the children; 2. the noise levels of boys and girls are assumed to be similar, and so are not differentiated in the AAAC Guidelines; 3. the effective sound power levels for groups of 10 children playing within various age groups is provided in Table 1 of the AAAC Guidelines, as follows: 10 children aged 0 to 2 years old 77 to 80 dB(A) 10 children aged 2 to 3 years old 83 to 87 dB(A) 10 children aged 3 to 6 years old 84 to 90 dB(A)

1. The Applicant, supported by its expert, Dr Tonin, submitted that: 1. the Proposed Development, through its location of outdoor play areas, and through the location and design acoustic fencing included within its design, is such that it: 1. was consistent with the qualitative guidance and considerations provided within subsection 3.5 of the Guidelines (see above at [29(1)]); 2. was compliant with the quantitative provisions of section 5.2 of Part E in SCDCP concerning site requirements (see above at [32(1)]) because: 1. the Subject Site met the minimum site area required under guidance 7 of that section; 2. the setbacks in the Proposed Development represented a reasonable alternative to the 4m setback requirement within guidance 7 of that section and should be afforded flexibility in the application of that guidance as the Proposed Development achieved the objectives of section 5.2 as it ensured that the relationship between the proposed child care centre and adjoining land uses is favourable in terms of potential noise impacts; and 1. was consistent with the provisions of section 5.9 of Part E in SCDCP (see above at [32(3)]), concerning noise, because it is designed to minimise the impact of noise on surrounding properties having addressed the matters identified in this section when the proposed child care centre development was designed; 1. the Proposed Development would comply with the AAAC guidelines (see above at [44]) that the Leq, 15min noise level emitted from the outdoor play areas shall not exceed the background noise level by more than 5dB at the assessment location because the centrally located unencumbered outdoor play area would be managed in such a way that at any point between 9am and 3pm: 1. no more than four of the seven children occupying that space would undertake active play simultaneously, and 2. at least three of these seven children would undertake passive play simultaneously; 3. the proposed 3/4 split of passive/active play by children in that area would ensure that the noise emissions from this area would be acceptable; 4. the Applicant would assure compliance with this 3/4 split in passive/active play engagement through the provision of two teachers to supervise the unencumbered outdoor play area, and the seven children within it, at all times between 9am and 3pm.
2. The Respondent supported by its expert, Mr Cooper, did not accept that the Proposed Development would achieve the outcomes identified by the Applicant above at [46], and said that this was based on the following three considerations: 1. whether the sound power levels selected to represent children playing in the outdoor play areas (see above at [45(3)]) and used to calculate the sound pressure levels received at certain receptor locations at adjoining residences, were reasonable; 2. whether it was feasible, and reasonable, to assume that the Applicant could ensure that three of the seven children within the unencumbered play area can be managed to engage only in passive play, so that this activity split can be used as a reasonable basis calculating predicted noise levels; and 3. whether it was reasonable and acceptable to approve the Proposed Development in circumstances where the noise levels received at receptor locations on the adjoining properties may exceed required noise levels by between 0.6 and 1.8dB(A).
3. I will assess each of these three considerations in turn.

Are the sound power levels selected to represent children playing in the unencumbered outdoor play areas, and used to calculate the sound pressure levels received at certain receptor locations at adjoining residences, reasonable?

1. The acoustic experts held differing opinions in relation to the assessment of the noise levels associated with children playing in the childcare centre and the potential noise impacts associated with this activity at certain locations in adjoining properties.
2. The difference between the acoustic experts related to the appropriate method for calculation of the noise likely to be generated by children attending the Proposed Development, and in particular the children who would use the unencumbered outdoor play area.
3. The only calculations tendered as evidence on the sound power levels associated with use of the outdoor play areas in the Proposed Development was that provided by Mr Tonin.
4. Mr Tonin confirmed during the hearing that: 1. in response the Respondent's amended contentions, he had re-modelled the potential noise impact of children playing in the outdoor play areas on the following basis: 1. drawing on the AAAC noise levels identified above at [45(3)], the children in active play were all modelled with a maximum sound power level of 90dB(A), and the children in passive play were modelled using the lower level of the sound power level identified for their ages; 2. within the unencumbered outdoor play area a mix of different age group children using the area was used as follows: 3. 2 children aged 3 to 6 years in active play 4. 2 children aged 2 to 3 years in active play 5. 1 child aged 2 to 3 years in passive play 6. 2 children aged 0 to 2 years in passive play; 1. he had provided the data upon which his calculations had been based to Mr Cooper in advance of the hearing.
5. Mr Cooper said that while he did have access to the data provided by Dr Tonin he had been unable to replicate Dr Tonin's findings because Dr Tonin had applied a methodology referred to as the Logarithmic Average (LogAv) method to prepare his calculations and Mr Cooper did not have the relevant software to apply Dr Tonin's data using a LogAv method. He noted that within his office he used software that was based on using a point source approach to calculating sound power levels.
6. Dr Tonin had stated within the joint report prepared with Mr Cooper (at [96]) that the use of the LogAv method was common in the industry and had been used by members of the AAAC, including members who appeared as expert witnesses before the Court.
7. The Applicant submitted, and I accept, that there is no practice note within the Court that suggests that either the LogAv or point source approaches should be preferred in the preparation of acoustic evidence that is prepared to assist the Court in its deliberations, and I am satisfied that the calculations undertaken by Dr Tonin and provided within his evidence before the Court, including within the joint report prepared with Mr Cooper, is acceptable for the purposes of evaluating the potential acoustic impacts of the Proposed Development in this appeal.
8. At the hearing the experts agreed that, if the highest values of sound levels identified above at [45(3)], which are taken from Table 1 of the AAAC Guidelines, are applied then: 1. if the Proposed Development were to be undertaken consistent with the assumption of a 3/4 split in passive/active play within the unencumbered play area between 9am to 3pm, as envisaged under the Applicant's plan of management for the childcare centre, the noise emitted from the play areas within Proposed Development would not exceed the relevant noise criteria proposed by within the AAAC Guidelines (see above at [44]) of background plus 5dB(A); but 2. if all seven children in the unencumbered play area were engaged in active play simultaneously, then the noise generated by those children would exceed the relevant noise criteria of background plus 5dB(A) at four locations as follows:
9. Having considered the evidence of the experts, Dr Tonin and Mr Cooper, and notwithstanding their differences, I am satisfied that: 1. the sound power levels selected to represent children playing in the unencumbered outdoor play areas, and used to calculate the sound pressure levels received at certain receptor locations at adjoining residences, are reasonable; and 2. these sound power levels, applied as identified above at [52] to [55], to calculate the potential noise impacts of children using the outdoor play areas as envisaged by the Applicant, do form a reasonable basis for the assessment of the potential noise impacts of the Proposed Development.

Is it feasible, and reasonable, to assume that the Applicant can ensure that three of the seven children within the unencumbered play area can be managed such that they are not engaged in active play, and so that this can be used as a basis calculating predicted noise levels?

1. The Applicant submitted that: 1. its proposed plan of management for the childcare centre envisages that up to seven children would be engaged in play within the unencumbered outdoor play area at any one time; 2. two teachers would be assigned to supervise the children in the unencumbered outdoor play area at all times; 3. one teacher would supervise three of the children in passive play, while the other teacher would supervise the other four children undertaking active play; 4. should the Court require a further assurance that the Applicant would implement the provisions of its proposed plan of management if the Proposed Development were approved, it would accept the imposition of the following additional condition of consent with the grant of consent: "The approved plan of management is to be updated by inserting the following requirement: The manager of the centre shall ensure that one teacher is allocated to ensure that one teacher is allocated to ensure that a minimum of three of the seven children permitted in the 'unencumbered outdoor play area' are engaged in passive play activities of the type described in Chapter 9 of the plan of management".
2. The Respondent submitted that it did not agree with the Applicant that it's proposed 3/4 split of children in passive/active play was feasible or reasonable because: 1. the unencumbered outdoor play area had not been designed to distinguish between active and passive play types; 2. it is not clear what specific activities formed the basis for the AAAC guidelines and noise estimates related to children play and so their use in the assessment of the Proposed Development was not reliable; 3. there was no evidence put on by the Applicant from a childcare expert to confirm that the proposed 3/4 split of children into passive and active play could be managed in that fashion; 4. there is no evidence to support the Applicant's proposition that its proposed additional condition of consent (see above at [58(4)]) would be implemented; 5. consideration of the Applicant's proposed 3/4 split between children in passive/active play should not be used as a basis for assessment of the Proposed Development as it did represent a conservative estimate of potential noise impact, as proffered by Dr Tonin, but rather underestimated the potential noise impacts of the Proposed Development; and 6. the only basis for assessment of the potential noise impacts of the Proposed Development would be to assume, as Dr Cooper has suggested, the most conservative scenario that all seven children within the unencumbered outdoor play area would be engaged in active play producing noise at the highest sound power levels provided for each age group in the AAAC Guidelines.
3. In their expert oral testimony at the hearing, the acoustic experts said as follows: 1. Mr Tonin said that the Applicant had confidence in the plan of management's implementation because the design and structure of the outdoor play areas would support and ensure assure achievement of the plan of management's 3/4 split outcome in passive/active play in the unencumbered outdoor play area; 2. Mr Cooper said that he held a concern that the plan of management outcomes may not be achieved, and he would seek the imposition of a condition of consent to provide further assurance that the outcomes proposed with the Applicant's plan of management would be achieved.
4. In response to this testimony: 1. the Respondent said that Dr Tonin was not an expert in childcare and no weight should be afforded to his evidence that he was confident that the design of the unencumbered outdoor play area would support the implementation of the proposed split in children participating in passive/active play; 2. the Applicant said that, while Dr Tonin may not have formal qualifications in childcare, it was not necessary to engage the expert opinion of a child care expert to accept that two teachers supervising seven children would be sufficient to ensure that at least three of those children could be managed to participate in passive play, and so meet the calculated noise levels associated with the Proposed Development when undertaken consistent with the Applicant's plan of management.
5. I have considered the submissions of the Parties and the evidence of the experts in relation to this question, and I have concluded that: 1. the application before the Court that I am required to assess is the Proposed Development which includes the Applicant's plan of management with the proposed 3/4 split of children undertaking passive/active play in the unencumbered outdoor play area; 2. the acoustic experts have agreed that, if the Proposed Development were implemented in a manner that is consistent with the Applicant's plan of management, the Proposed Development would achieve compliance with the noise assessment guidance within section 5.0 of the AAAC Guidelines in relation to the emission of noise from outdoor play areas where children are allowed to play outside for more than 2 hours per day (see above at [44]). That is, the Leq15min noise level emitted from the outdoor play areas, as received at identified receptor locations, would not exceed the background noise level by more than 5dB at all assessment locations. 3. in undertaking my assessment of the Proposed Development, I should assume that, if granted consent with conditions, the Applicant would implement the Proposed Development in a manner that is consistent with any conditions imposed; 4. it is my considered opinion that it is reasonable to assume that the Applicant's proposal within its plan of management for managing the 3/4 split of children in passive/active play in the unencumbered play area will be achieved. I further note that, in circumstances where the Proposed Development is approved, the Applicant is under a legal obligation to ensure that its implementation is undertaken in a manner consistent with any condition of consent imposed. Should that not be the case, then the Applicant would be at risk of compliance related action by the Respondent Council. 5. I accept the Applicant's proposition that if granted consent, and for an abundance of caution as suggested by Mr Cooper, a condition of consent should be imposed as identified above at [58(4)], and that this should be included within the tendered draft conditions of consent as condition 15(c); 6. given that the Proposed Development, with the imposition of conditions, and assuming implementation consistent with the Applicant's plan of management, would achieve compliance with the noise assessment guidance within section 5.0 of the AAAC Guidelines, I am satisfied that the Proposed Development would comply with the relevant provisions of SCDCP, as identified above at [32(1)] and [32(3)], as well as with the guidance provided within Section 3 of the Guideline (see above at [29]); 7. as required under cl 23 of the Childcare SEPP, the applicable provisions of the Guideline, have been considered in relation to the Proposed Development, and the Applicant's development application can be determined; 8. on the basis of my conclusions above at (1) to (7), the Applicant's Proposed Development can be determined by the grant of consent.

Is it reasonable and acceptable to approve the Proposed Development in circumstances where the noise levels received at receptor locations on the adjoining properties may exceed required noise levels by between 0.6 and 1.8dB(A)?

1. I have already concluded that, in my assessment, the Proposed Development should be approved on the basis that, inter alia, it is reasonable to assume that its plan of management for the child care centre, which forms part of its application, would be implemented as proposed and the Proposed Development would consequently satisfy the AAAC Guidelines for childcare centre acoustic assessment, and would be compliant with the relevant provisions of SCDCP, and the Guideline as required under cl 23 of the Childcare SEPP (see above at [62]).
2. Notwithstanding this conclusion, I also noted that the experts had agreed that the noise generated by seven children in active play within the outdoor unencumbered play children would result in the Proposed Development exceeding the relevant noise criteria of background plus 5dB(A) at four locations, as identified above at [56(2)]. This agreement had been based on the evidence of Dr Tonin and the modelling he had undertaken which was included in the joint report of the acoustic experts.
3. The Applicant said, supported by the evidence of Dr Tonin, that: 1. it had taken all reasonable and feasible measures to ensure that the potential noise impact of the Proposed Development had been mitigated, and its Proposed Development had incorporated all of these measures; 2. the Court should assess the Proposed Development as it was presented at the hearing; 3. the number of children proposed for accommodation at the childcare centre was reasonable, and its proposed plan of management would ensure that the Proposed Development would remain compliant with the AAAC Guidelines noise trigger levels of background plus 5dB; 4. even if seven children simultaneously participated in active play within the unencumbered outdoor play area, which was envisaged by Mr Cooper a worst case scenario, the so-called 'residual noise impact' of less than 2dB(A), as calculated by Dr Tonin: 1. might be experienced at four of the receptor locations; 2. would be below the noise level that the Noise Policy for Industry (NPfI), published by the NSW EPA, identifies as 'negligible" which it defines as an exceedance that would not be discernible by the average listener and would not warrant receiver-based treatments or controls; 3. would be of a level that the EPA's Road Noise Policy states would represent "a minor impact that is considered a barely perceptible to the average person"; 4. would be of a level that Dr Tonin had said that, in his experience, would not be discernible to the human ear.
4. The Respondent said, supported by the evidence of Mr Cooper, that: 1. the Court should accept that the possibility of an exceedance of the relevant noise trigger level of background plus 5dB is possible; 2. an exceedance of this background plus 5dB trigger level by 0.6-1.8dB would be a significant exceedance and would give rise to an unacceptable impact on residents of adjoining properties; 3. the number of children proposed by the Applicant to be enrolled in Proposed Development was excessive, and would not achieve the objectives of the AAAC Guidelines as it would not protect the reasonable acoustic privacy of nearby residents in their dwellings and private open spaces; 4. the NPfI states that it had been prepared for application to industrial noise sources from those scheduled activities listed in Schedule 1 of the Protection of the Environment Operations Act 1997 (POEO Act), and regulated by the EPA, and so should not be applied to the Proposed Development as child care centres are not an activity listed in Schedule 1; 5. the EPA's Road Noise Policy had referred to an exceedance of up to 2dB(A) as representing a "minor impact" and "barely perceptible to the average person" in the context of assessing feasible and reasonable mitigation measures. Mr Cooper, in his oral testimony, had stated that in his opinion: 1. the Applicant had yet to apply all feasible and reasonable measures to mitigate the potential noise impacts of the Proposed Development; 2. strict compliance of the Proposed Development with the background plus 5dB(A) criteria remained possible; and 3. the policy's proposition that a noise exceedance of up to 2dB(A) was a "minor impact" and "barely perceptible to the average person" should not be applied to the Proposed Development; 1. for the above reasons, the Proposed Development should not be approved.
5. In response to these submissions, the Applicant observed that: 1. the NPfI includes sections (sections 1.1.1 and 1.4) that discuss the use and application of the policy in relation to local and regional planning, which included the following statements: 1. Government bodies, including the Department of Planning and Environment (DP&E), councils and the EPA, play a number of roles that influence the level of noise in the community and its impacts including in relation to development consent; 2. Planning authorities can use development planning and approvals processes to avoid impacts on the community from noise by ensuring that industrial developments have reasonable environmental performance requirements that are practical and socially and economically viable for the development locality; 3. Local government is an independent regulator for noise under the legislation, and has discretion in dealing with noise within its area of responsibility; 4. The policy is designed for large industrial and agricultural sources and specifies substantial monitoring and assessment procedures that may not always be applicable to the types of sources councils need to address; 5. Local government may find the policy helpful in assessing noise from premises it regulates and in carrying out its land use planning responsibilities; 1. because it had included all reasonable and feasible mitigations measures as recommended by Dr Tonin within the Proposed Development, as amended, it was appropriate to apply both the NPfI and EPA Road Noise Policy in assessing the Proposed Development; 2. Dr Tonin had stated within the joint report of the acoustic engineers that: 1. he considered that he had applied all feasible and reasonable measures in the design of the proposed Development that would enable compliance with the applicable noise trigger levels as calculated by him; 2. the residual noise impacts resulting from using Mr Cooper's worst case scenario for noise generation within the unencumbered outdoor play area would be minor, inconsequential and therefore acceptable.
6. I have considered the submissions of the Parties and the evidence of the acoustic experts, as provided above at [65], [66] and [67], I have concluded that: 1. while I acknowledge the submissions of the Respondent and the opinions of its expert, Mr Cooper, and accept that the worst case scenario presented by Mr Cooper merits consideration, I do not agree with them, for reasons discussed below, that the NPfI and EPA's Road Noise Policy guidance with respect to the potential impact of noise exceedances of less than 2dB(A) above a noise trigger level are irrelevant or unhelpful in my assessment of the Proposed Development; 2. I agree with the Applicant, for the reasons it provides, which I adopt (see above at [65] and [67]), that the guidance provided within the NPfI and EPA's Road Noise Policy do provide helpful guidance in the assessment of the Proposed Development, particularly in the absence of any other published and broadly adopted quantitative guidance for the assessment of potential noise impacts; 3. in the circumstance that the Proposed Development does not comply with the applicable noise trigger level of background plus 5dB, the non-compliant noise levels from the unencumbered outdoor play area would, in my assessment, be: 1. unlikely and infrequent, given the protocols within the Applicant's plan of management for teacher supervision of children at play in the unencumbered outdoor play area; and 2. minor and barely perceptible if they were to occur, as described within the EPA's Road Noise PoIicy; 3. of negligible significance, and not such as to warrant receiver-based treatments or controls to mitigate any non-compliance exceedance, as described within the NPfI.
7. For reasons provided above (at [68]), I find that it is reasonable and acceptable to approve the Proposed Development in circumstances where the noise levels received at receptor locations on the adjoining properties may exceed required noise levels by between 0.6 and 1.8dB(A).

Is approval of the Proposed Development in the public interest?

1. I have identified above that the Applicant's development application, when initially notified by the Respondent was the subject of some 210 objections and a petition with some 300 signatures.
2. Further, the Respondent tendered as evidence at the hearing a further 20 submissions lodged in accordance with the Court's COVID-19 Pandemic Arrangements Policy in place of oral submissions that objectors may have sought to be provided on-site.
3. A summary of the merits issues identified within those submissions were identified above at [11], and I am satisfied, based on the submissions of the Parties, and the evidence of the experts, that the Proposed Development, as amended, has satisfactorily addressed the issues raised by the objectors, such that there remain no unresolved merits issues that would warrant refusal of the Proposed Development.
4. As a consequence, having regard to the objectives and requirements of the EP&A Act, the Childcare SEPP, the Guideline, SLEP and SCDCP, and the manner in which the provisions of those instruments have been addressed by the Applicant, I am satisfied that approval of the Proposed Development is in the public interest.

Matters concerning the finalisation of conditions of consent

1. The Parties tendered draft conditions of consent that differed in certain regards and in relation to which I should provide direction so that conditions of consent can be finalised and final orders made.
2. The Applicant had provided its comments on the Respondent's proposed conditions, and I will refer to these draft Applicant conditions in providing directions for finalisation of conditions in the appeal.
3. The Applicant's draft conditions of consent are adopted except as follows: 1. the Applicant had proposed an amendment to the Respondent's draft Condition 3 to reflect, it says, recommendations of Mr Cooper (at par 259 of the joint report of the Acoustic experts). I note that Mr Cooper's position concerning hours of operation of the garage door was given in response to a recommended condition proffered by Dr Tonin (at par 153 of that joint report). For clarity, condition 3 should read: "3. CHILD CARE CENTRE - HOURS OF OPERATION (GC) Day Hours of Operation Monday to Friday 7:00am to 6:00pm Saturday, Sunday and Public Holidays Closed

The garage door shall remain closed outside of operating hours with the exception that up to two vehicles may enter the between 6:45am and 7:00am to facilitate access by up to two staff members for the purpose of preparing the centre for opening". 1. the Applicant has proposed an amendment to the Respondent's proposed condition 4(a)(ii) concerning noise from use of the driveway and car park between the hours of 10pm and 7am. I note that, based on my condition 3 (see above at [(1)]), there would be no use of the driveway and car park between 6pm on one day and 6:45am on the next, and so no noise generated by its use in this period. I invite the Parties to consider refinement of draft condition 4(a)(ii) to reflect: 1. the timing for the proposed use of the driveway and car park; 2. the level of LAFmax noise to be permitted from use of the driveway and car park when measured either: 1. at the bedroom windows of the nearest or most affected residential premises, in which case I propose that the level be at the lower level 58dB(A); or 2. at the boundary with the nearest or most affected residential premises, which is further away from the windows of those residences, in which case I propose that the level be at higher level of 63dB(A); 1. the Applicant has proposed an amendment to daft condition 49A concerning future acoustic testing during the operation of the Proposed Development. The Applicant proposes its amendment on the basis that the Respondent's proposed condition is unreasonable because: 1. it prefers that the acoustic engineer to be engaged should be "suitably qualified" rather than "Council approved"; 2. it does not agree with the Respondent that the acoustic engineer must be one not previously engaged in the DA stage of the Proposed Development; 3. it does not agree that access to adjacent properties for the purpose of acoustic testing should be arranged by the Respondent; 4. it prefers that the acoustic engineer appointed to undertake the testing should be engaged by the Applicant and not the Respondent Council; 1. having considered the competing drafts of proposed condition 49A, and noting that conditions of consent bind the Applicant in relation to the implementation of a development for which consent is granted, I have concluded that the condition should read: "When the centre reaches of 80% occupancy rate the operator shall advise Council, whereby testing will be undertaken to ascertain full compliance with Condition 4. Testing is to be undertaken by a suitably qualified acoustical engineer or acoustical engineering company, with current membership of a professional association covering the field of acoustic engineering, the members of which association must be required to practice in a manner consistent with a code of ethics and professional conduct. The acoustic consultant will be engaged by the Applicant with instructions to undertake noise testing and monitoring without prior advice to the operator or the owner of the childcare centre at 108 Beresford Road, Strathfield. The cost of the engagement shall be borne by the operator/owner of the child care centre. The engaged acoustic engineer will measure the noise emanating from the childcare centre at 108 Beresford Road at locations receiver locations within premises adjacent to the childcare centre at 108 Bereford Road. Those locations should include, as a minimum, the locations identified as R1H, R1L, R1M, R3A and R4F in Figure 2 within the Supplementary Acoustic Report of Renzo Tonin and Associates dates 24 February 2020, and prepared in relation to the "Beresford Child Care Centre". Access to the adjacent properties for the purpose of undertaking the required noise measurements will be arranged by Council upon request from the Applicant. The child care centre management will provide (post testing) records of the number of children in attendance at the centre (including outdoor areas) during the testing period. The engaged acoustic engineer will take account of the number of children using the outdoor play areas for each nominated time period and determine a correction factor to account for full capacity as identified in the Applicant's plan of management and determine the resultant noise levels for 100% capacity. If as a result of the compliance testing there is non-compliance with Condition 4 then the acoustic engineer will recommend appropriate additional noise control/management measures to achieve acoustic compliance. Following completion of such recommended measures the compliance test will be repeated. Any costs as a result of re-testing shall also be borne by the operator/owner and carried out within a time frame set by Council". 1. the Applicant has proposed an amendment to the Respondent's proposed condition 55(b) concerning noise complaints. The Applicant proposes its amendment on the basis that the Respondent's proposed condition is unreasonable because, in its view, the engagement of an acoustic specialist should be undertaken by the Applicant, and the nature and timeframe for rectification of noise exceedances should be "reasonable". I have considered the competing drafts of condition 55(b). Consistent with condition 49A, I accept that engagement of the acoustic engineer should be by the Applicant is reasonable and any costs of that engagement be borne by the Applicant in its capacity as operator/owner of the child care centre. However, in my assessment, the insertion of the word "reasonable' as proposed by the Applicant will only serve to reduce the clarity and effectiveness of the condition, and potentially compromise the independence of the acoustical engineer engaged to complete the work. Consequently, I have concluded that the condition should read as follows: "(b) Should substantiated complaints or breaches of noise regulations occur, a suitably qualified acoustic engineer, of a type described in condition 49A, shall be engaged the Applicant to measure noise emanating from the childcare centre building/premises and to recommend appropriate action. The cost of such an appointment shall be borne by the operator/owner of the child care centre, and the costs of any works recommended by the acoustic engineer to rectify the recorded noise exceedances shall also be borne by the operator/owner, and they and carried out within a time frame set by Council".

Conclusions

1. Having considered the submissions of the Parties, and the testimony of the experts, in this appeal, I conclude that the Applicant's Proposed Development, as amended, should be approved because: 1. for reasons provided above at [57], the sound power levels, calculated as identified above at [52] to [55], do form a reasonable basis for the assessment of the potential noise impacts associated with the outdoor play areas that would be located within the rear area of the Subject Site; 2. for reasons provided at [62], it is feasible, and reasonable, to assume, on the basis of the Applicant's plan of management, that the Applicant can ensure that three of the seven children within the unencumbered play area can be managed such that they are engaged in passive play, and that this can be used as a basis calculating the potential noise impacts of the Proposed Development, which would be compliant with the guidance of the AAAC concerning acceptable noise impacts from childcare centres; 3. as identified above at [58(4)], the Applicant's proposal for the inclusion of specific condition of consent concerning the implementation of its plan of management is accepted, and its proposed condition 15(c) should be included within the final conditions of consent; 4. as discussed above at [62(6)], I am satisfied that the Proposed Development, as amended, and with the imposition of conditions of consent as addressed above at [76], would comply with the relevant provisions of SCDCP, as well as with the guidance provided within Section 3 of the Guideline; 5. as confirmed at [62(7)], the applicable provisions of the Guideline have been considered in relation to the Proposed Development, as required under cl 23 of the Childcare SEPP, and the Applicant's development application can be determined; 6. for reasons provided above at [69], it is reasonable and acceptable to approve the Proposed Development in circumstances where the noise levels received at receptor locations on the adjoining properties may exceed required noise levels by between 0.6 and 1.8dB(A); 7. for reasons provided at [72] and [73], approval of the Proposed Development is in the public interest.
2. As is evident from the judgment, it will be necessary that the Parties undertake work to finalise conditions of consent so that that final orders can be made to dispose of the appeal. To that end I make the following directions.

Directions

1. The Court directs that: 1. the Respondent is to file with the Court final, agreed, conditions of consent, reflecting the conclusions of this judgment above at [77], by no later than midday on Friday, 4 September 2020; 2. the matter is listed for mention on Monday, 7 September 2020 at 4:15pm; 3. if direction (1) above is complied with, order will be made granting development consent and the mention on 7 September 2020 will be vacated 4. The Parties are granted liberty to restore on three days' notice.

Addendum made on 10 September 2020

1. On 25 August 2020, the Parties were directed to agree, and file with the Court, by no later than Friday 4 September 2020, settled conditions of consent, reflecting the conclusions in the Court's judgment in this matter.
2. The Parties have now agreed settled conditions of consent reflecting the conclusions in the Court's judgment. As the Parties' agreed conditions of consent have now been filed, the Court is able to make final orders.

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application DA2018/134 is determined by the grant of consent subject to the conditions in Annexure 'A'. 3. The exhibits are returned, with the exception of Exhibits A, B, C, D and 1.

Amendments 10 September 2020 - The addendum for final orders at [82]. 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: 10 September 2020