Viewland Developments Pty Ltd v Blacktown City Council

Catchwords: DEVELOPMENT APPEAL – child care facility – internal impacts – external impacts - orders

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 2.22, 8.7, 8.15
Land and Environment Court Act 1979 s 39
Environmental Planning and Assessment Regulation 2021 s 38
Statement Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6
State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 11
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.25, 3.27
Education and Care Services National Regulations, rr 107, 108, 110

Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191

Texts Cited: Child Care Planning Guideline (September 2021)
Blacktown City Council Growth Precincts Development Control Plan 2010

Category: Principal judgment

Parties: Viewland Developments Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
S Berveling (Respondent)
Solicitors:
Fortis Law (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2024/225841

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA-24-00316 seeking consent for the amalgamation of 4 lots into 1 lot, construction of a two storey child care facility to accommodate 125 children and 19 staff, basement car parking for 39 vehicles, associated site works and landscaping (Proposed Development) at 64 - 70 Diamondback Parade, Melonba legally described as Lots 8314, 8315, 8316 and 8317 in DP1273495 (the Site).

2. The Site is located within the R2 Low Density Residential zone pursuant to the State Environmental Planning Policy (Precincts – Central River City) 2021, Appendix 11 Blacktown Growth Centres Precinct Plan (Precincts DCP).

3. Joint Expert Reports filed with the court address the contentions raised by the Respondent in the Amended Statement of Facts and Contentions (ASOFAC) filed 31 January 2025 (Ex 1). At the commencement of the hearing the Applicant sought leave to rely upon documents and made an application to the Court to exercise the function of the Council and agree to that amendment to the Proposed Development. Subject to an order for costs pursuant to s 8.15(3) of the EPA Act, the Respondent did not object to the application to amend the Propose Development. My orders regarding the amendment and costs appear at the end of the judgment.

4. As a result of the joint expert evidence and amended plans and documents tendered by the Applicant, there has been a sharp narrowing of the issues remaining in the proceedings. The Respondent council presses the town planning Contentions relating to character and streetscape which I will refer to as external impacts and relating to internal impacts limited to the provision of ventilation to the proposed child care facility.

5. What I refer to as the external impacts of the Proposed Development are particularised in the Amended Statement of Facts and Contentions filed 31 January 2025 (ASOFAC) (Ex 1) as follows:

6. Character and Streetscape (contentions 2);

7. Unacceptable built form (contention 3);

8. Site suitability (contention 10); and

9. Public interest (contention 11)

10. What I refer to as internal impacts of the Proposed Development are particularised in the ASOFAC as unacceptable internal amenity (contention 5) specifically in relation to the provision of natural ventilation.

11. Any remaining outstanding issues where agreement was not reached between the town planning experts are minor and are not pressed by the Respondent as a basis for refusing the Proposed Development.

12. Proposed/Draft Conditions of Consent were agreed between the parties and filed on 11 March 2025 (Ex 9).

13. I now set out my reasons for reaching the conclusion that the impacts of the Proposed Development are acceptable and why the remaining concerns do not warrant the refusal of the Proposed Development.

Are the external impacts of the Proposed Development acceptable?

10. The Council contends that:

11. “There has been inadequate regard to the site context and interface of the development with its three street frontages which results in an unacceptable streetscape outcome” (Contention 2)

(a) The Respondent submits that Contention 2(a) and (e) remain alive following the cross examination of the town planning experts Mr Cavallo and Mr Wood.

2. The proposal should be refused as the built form is not in keeping with the low-density residential character of the area. The design does not adequately consider the site context and provide an appropriate built form response, resulting in a development of excessive bulk and scale (Contention 3)
3. Site is not suitable for the proposed development. The design is not acceptable and does not achieve the relevant objectives and requirements of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP); Education Regulation 2017; Child Care Planning Guideline (September 2021) (CCPG); State Environmental Planning Policy (Precincts – Central River City) 2021 (Growth SEPP); and Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (Precincts DCP) (Contention 10)

(a) The proposal is not suitably designed or located with regard to its low-density residential zoning. The proposal is inconsistent with the desired future character of the locality; breaches the required building setbacks; and results in unacceptable visual amenity impacts

4. Public interest – overdevelopment departing from desired future character of the locality (Contention 11)

5. I will deal with these contentions together as they substantially overlap with the overriding theme being as identified by the experts in the Supplementary JER Planning at [1.11] being:

“Compatibility with Character and Built Form Response of the Proposal including the First Floor Outdoor Play Area and associated acoustic barriers at the first floor and its suitability in the context of local character and the relevant planning controls”

12. I have considered the evidence of the town planning experts, Mr Cavallo and Mr Wood contained in their two Planning Joint Expert Reports (JER), being Planning JER (Ex 6) and the Supplementary Planning JER (Ex 8) which deal with the amended architectural plans Rev H and landscape plans Rev J (both contained in Ex C) and their oral evidence during cross examination.

13. The experts agree that contention 6 is resolved “in terms of the extent of the ground floor outdoor play area that is open to the sky that satisfied the 1/3 open requirement of Part 4.9 of the CCPG” (Supplementary JER Planning at par 1.9)

14. The experts also agree that contention 7 is resolved “in terms of compliant solar access to the ground floor and the provision of adequate shade to the play areas.” (Supplementary JER Planning at par 1.10)

15. Notwithstanding their agreement that the design changes are positive in terms of town planning matters, they articulate that the key issues that remain in dispute are as follows ((Supplementary JER Planning at par 1.11):

“Compatibility with Character and Built Form Response of the Proposal including the First Floor Outdoor Play Area and associated acoustic barriers at the first floor and its suitability in the context of local character and the relevant planning controls – largely as per our evidence in relation to the first joint report.

Amenity of ground floor play space in terms of natural elements – largely as per our evidence in relation to the first joint report as this element has not changed materially but the space is improved through the adoption of an open to sky area.”

Setback to Diamondback Road and the use of planter boxes

16. The Applicant submits that the Proposed Development is compatible with the local character and relies on the provisions in Chapter 3 (Educational Establishments and Infrastructure) of the Transport and Infrastructure SEPP and the terms of the CCPG).

17. The controls of the Precincts DCP do not apply to the Proposed Development: s 3.27, Transport and Infrastructure SEPP. In particular, as a result of s 3.27(1)(d)(ii) of the Transport and Infrastructure SEPP, the Court, as consent authority, is to have regard to the matters for consideration set out in Parts 3 and 4 of the CCPG.

18. The CCPG expressly addresses consideration of local character at Part 3.2 and relevantly provides the objective to ensure that the child care facility is compatible with the local character and surrounding streetscape and at C5 that the proposed development should “in R2 Low Density Residential zones, limit outdoor play space to the ground level to reduce impacts on amenity from acoustic fences/barriers onto adjoining residence, except when good design solutions can be achieved.”

19. In relation to the external impacts of the Proposed Development, the context and character of the Proposed Development in relation to adjoining properties is resolved which only leaves for determination whether the visual impact of the acoustic barriers on the first floor presenting to the public domain at Diamondback Parade is unacceptable and warrants refusal. I do not reach that conclusion.

20. It is agreed that the assessment of compatibility with the local character is set out in the planning principle contained in the decision Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture) at [22] (JER Planning, [2.1]). The experts appropriately acknowledge that compatibility is different from sameness, (JER Planning, [2.1])

21. The experts consider the setbacks to be acceptable and agree on the approach of the design, namely reading the built form as three buildings ((JER Planning, [2.6] and [2.15]) but disagree as to whether the development is compatible with the character of the locality ((JER Planning, [2.8] and Supplementary JER Planning, [1.11]). I reproduce below the elevation depicting the form of three buildings as presented to Diamondback Road.

Fig 1: Southern elevation (frontage to Diamondback Road) extracted from Drawing A011 Issue I dated 10 March 2025 (Ex C)

22. The Site inspection revealed that there is very little area for landscaping on adjoining properties and I accept that the landscaping outcome of the Proposed Development will present as a better outcome compared with other existing residential development and that this will therefore present differently than a residential dwelling. I find that this difference does not render the Proposed Development incompatible with the character of the locality because it will remain in harmony with the dwellings resulting from the design approach reading the built form as three buildings.

23. Mr Cavallo’s concern regarding the presentation of the first floor play area to Diamondback Road, set out in JER Planning at [2.16], is that the building form significantly contributes to the overall bulk and that its “visual presence is made clear through substantial acoustic barriers, elevated planter beds and shade structures”

24. Mr Cavallo acknowledged however that the amendments to the Proposed Development, including the reduction in size of the shade structures, resulted in there no longer being a roof connection between the notional three buildings. Mr Cavallo also acknowledged the amendment of setting back the planter boxes on the first floor and the amendment to the acoustic screens being the placement on the inside of the planter boxes and the materiality being of clear Perspex. I reproduce below at Fig 2 an extract of the photomontage illustrating the proposed final built form presenting to Diamondback Road.

Fig 2: Photomontage extracted from Drawing A012 Issue 1 dated 11 March 2025 (Ex C)

25. Mr Wood addresses why the first floor outdoor play area is good design in the JER Planning (Ex 6) at [3.26] to [2.42].

26. I accept Mr Wood’s opinion that the “orientation of the play area away from neighbours and more towards the street but also disguised by the built form” is a good design solution and satisfies C5 of the CCPG (JER Planning at [2.41]).

27. I find that the presentation of first floor acoustic barrier to the public domain, as finally proposed, is acceptable and I conclude that the Proposed Development is compatible with the character of the locality. I accept Mr Woods’ conclusion in JER Planning at [2.31] that the Proposed Development is compatible in terms of the matters contemplated by the planning principle articulated in Project Venture, namely, the three elements of height of buildings, setback and landscaping as assessed by Mr Wood in JER Planning at [2.30]. I conclude that the form of the building as proposed sits comfortably in the context of the local character.

Are the internal impacts of the Proposed Development acceptable?

28. Contention 5 of the ASOFAC provides that the design and layout of the indoor play areas is unacceptable because doors to four of the play rooms need to be closed in accordance with the Environmental Noise Impact Assessment (Tab 3, Ex C) resulting in adequate internal amenity for children.

29. Part 4.4 of the CCPG is titled Ventilation and natural light and is in response to Regulation 110 of the Education and Care Services National Regulations which requires that services must be well ventilated, have adequate natural light, and be maintained at a temperature that ensure the safety and wellbeing of children. Design guidance is provided in relation to ventilation in the CCPG as follows:

“Good ventilation can be achieved through a mixture of natural cross ventilation and air conditioning … there will be circumstances where mechanical ventilation will be essential to creating ambient temperatures within a facility.”

30. The Environmental Noise Impact Assessment, at 8.2 on p 44 identifies as follows:

“Some Indoor Playrooms will require all external windows and doors to be closed in order to achieve the noise criteria. These rooms may be mechanically ventilated by an air conditioning system with fresh air supply or a passive ventilation system utilising acoustically lined ducts.

31. Condition 11.1.2 provides:

“The Indoor Playrooms which require all external windows and doors to be closed, as identified in section 8.1 of the Environmental Noise Impact Assessment, prepared by Day Design Pty Ltd and dated 11 March 2025, must be mechanically ventilated as set out in section 8.2 of the Environmental Noise Impact Assessment and having regard to Appendix K.”

32. I am satisfied that the ventilation proposed as articulated will provide a well ventilated service ensuring the safety and wellbeing of children.

Satisfaction of jurisdictional prerequisites

33. The parties provided a table explaining how relevant jurisdictional prerequisites to the granting of consent have been satisfied. I now summarise these and how I reach the requisite state of satisfied in relation to them.

34. The owner of the Site has provided the requisite consent to the making of the development application (Ex C, Tab 6).

35. The Proposed Development was notified by the Respondent Council in accordance with the Community Participation Plan, the Blacktown Development Control Plan 2015 and s 2.22 of the EPA Act. Evidence of such notification is detailed in the ASOFAC at paras 18 and 25 and I note that no submissions were received by the Respondent.

36. Consideration of the contamination status of the Site has been appropriately undertaken as set out in the Statement of Environmental Effects, prepared by Think Planners dated 6 December 2024 (Ex B, Tab 7) as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

37. The Site is located with the Hawkesbury-Nepean Catchment Area and certain provisions within Chapter 6 of the Statement Environmental Planning Policy (Biodiversity and Conservation) 2021 include jurisdictional prerequisites to be satisfied. I am satisfied that the Proposed Development incorporates water sensitive urban design and stormwater management features, with erosion and sediment control at the construction phase to ensure there is no impact on water quality (Ex B, Tab 3, Stormwater Plans).

38. The Proposed Development complies with Regulations 107 and 108 of the Education and Care Services National Regulations as follows:

39. 435.1m2 Indoor play space provided where a minimum of 403m2 is required; and

40. 879.6m2 outdoor play space provided where a minimum of 868m2 is required.

41. The Proposed Development has a floor space ratio (FSR) of 0.46:1 which complies with the FSR development standard of 0.5:1 pursuant to s 3.25 of the Transport and Infrastructure SEPP.

42. The Proposed Development has a maximum height of building (HOB) of 8.8m which complied with the HOB development standard of 9 m pursuant to cl 4.3 of Appendix 11, Growth SEPP.

43. The Site has the supply of water, electricity and sewerage disposal available: cl 6.1, Appendix 11, Growths SEPP .

Orders:

42. The Court orders:

43. The Court, exercising the function of the council pursuant to s 39 of the Land and Environment Court Act 1979, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, approves the application for an amendment to development application DA-24-00316 made on 10 March 2025 to rely on the documents and plans in Ex C listed as follows:

(a) Architectural plans; (b) Landscape plans; (c) Environmental Noise Impact Assessment and Supplementary Information to Acoustic Report; (d) Operational waste management plan; (e) Plan of management; (f) Owners consent; (g) Waste management plan; (h) Staff travel logs; and (i) Swept paths.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the application as agreed or assessed
3. The appeal is upheld.
4. Development consent is granted to Development Application DA-24-00316 seeking consent for construction of a two storey child care facility to accommodate 124 children and 19 staff, basement car parking for 39 vehicles, associated site works and landscaping at 64 - 70 Diamondback Parade, Melonba legally described as Lots 8314, 8315, 8316 and 8317 in DP1273495 subject to the conditions of consent in Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A (413 KB, pdf)