Voudouris v City of Parramatta Council

The Site

1. The site is an irregular, rectangular shape, fronting to Burnett Street for 29.93m, forming the western boundary, and also to Napier Street for 35m, forming the northern boundary. The total area of the site is 1147m².
2. Based on the evidence of experts and observations of the Court, the site slopes towards the south and is covered by sparse vegetation on the northern lot, which has been recently cleared, with a dwelling, pool and garage on the other (southern) lot.
3. Surrounding the site, along Napier Street and the eastern side of Burnett Street, are generally single and two-storey detached residential dwellings on relatively large lots. Along the western side of Burnett Street, are a mixture of single level detached dwellings that are being redeveloped as multi-storey residential flat buildings (RFB).

Relevant Planning Controls

1. The jurisdictional requirements of s 4.15(1) of the EPA Act are relevant for the Court's consideration to grant consent to the DA under appeal.
2. The proposed development is described as a centre-based child care facility, therefore is considered pursuant to the requirements of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the SEPP Child Care).
3. Clause 23 of the SEPP Child Care requires that the Child Care Planning Guideline 2017 (hereafter the CCPG) are considered in assessing the proposed child care centre. Clause 25 of the SEPP Child Care and the CCPG respond to the requirements of the Education and Child Care Services National Regulations 2011 (hereafter the ECC Regs).
4. The site is located within the R2 Low Density Residential zone (R2 zone), as described in the Holroyd Local Environmental Plan 2013 (HLEP). Pursuant to cl 2.3 of the HLEP, the proposed development is permissible and the objectives of the R2 zone, below, are described below: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To allow residents to carry out a range of activities from their homes while maintaining neighbourhood amenity.
5. The parties agree that the proposed development complies with the relevant objectives and numeric development standards of the HLEP.
6. In consideration of the DA under appeal, the parties draw the Court's attention specifically to the controls in Parts A (General), B (Residential) and I (Child Care Centres) of the Holroyd Development Control Plan 2013 (HDCP). Burnett Street is classified as a sub-arterial road in the HDCP.
7. It is accepted that the pursuant to cll 8 and 26 of the SEPP Child Care, the requirements of the SEPP as described through the CCPG, take precedence over the HDCP, except where it relates to building height, setbacks and parking rates.
8. The Association of Australasian Acoustical Consultants Guidelines for Child Care Centre Acoustic Assessment, Version 3 (hereafter the AAAC Guidelines) is referenced by the acoustic experts in their evidence.
9. The traffic experts refer to the Validation Trip Generation Surveys, Child Care Centres Analysis Report, prepared by the Roads and Maritime Services in September 2015.

Experts

1. The Court was provided with written and oral evidence from the following experts:

• Planning - Mr Jonathon Wood for the applicant; and Ms Deborah Laidlaw for the respondent. The Court refers to their joint expert report, tendered as Exhibit 3 and supplementary joint report in Exhibit 11.
• Acoustic - Mr Stephen Gauld for the applicant; and Mr Richard Haydon for the respondent. The Court refers to their joint expert report, tendered as Exhibit 4.
• Child Care - Ms Lynda Campbell for the applicant; and Ms Wendy Shepherd for the respondent. The Court refers to their joint expert report, tendered as Exhibit 6 and supplementary joint report in Exhibit 12.
• Traffic - Mr Craig McLaren for the applicant; and Mr Amir Mousavi for the respondent. The Court refers to their joint expert report, tendered as Exhibit 5.

Is the proposed development consistent with the character of the streetscape and locality?

1. The Council contends that the proposed child care centre does not adequately address the constraints of the site, namely its proximity to a sub-arterial road (Burnett Street) and its slope. Therefore, based on the proposed design and use as a two-storey child care facility, the site is unsuitable.
2. Further to this, Council considers the design of the proposed development is inconsistent with the surrounding built form, as viewed along the eastern side of Burnett Street and along Napier Street. The design is therefore out of context with the surrounding low density residential (R2) zoning, and inconsistent with the existing character of the streetscape and locality.
3. Council contends that there is an inconsistency of the proposed development with the objectives (and the controls) in Part 3.2 of the CCPG, which relevantly require a proposed child care centre: "• To ensure that the child care facility is compatible with the local character and surrounding streetscape, and • To ensure that front fences and retaining walls respond to and complement the context and character of the area and do not dominate the public domain."
4. I accept the planning experts' explanation that the streetscape around the site extends along the eastern side of Burnett Street between Napier Street, south to Banks Lane, along Napier Street, and west of Franklin Street. I agree that the visual catchment includes Burnett Street and Napier Street. I accept that the experts do not agree that weight should be given in (the character) assessment to the R4 zone, on the western side of Burnett Street.
5. I accept that the details relating to the height, location and design of the perimeter fences and pergola structures are shown in the amended plans (Exhibit N), although these design changes do not necessarily resolve the contention as it relates to bulk/scale and character.
6. The experts agree that the proposed child care centre is required to have a minimum 1.8m height acoustic wall around the perimeter of site, which in some parts exceeds this height due to the slope of the site. Due to the slope of the land along Burnett Street, the acoustic fence reaches up to 3.1m in height, with limited opportunity for landscaping between the fence and the public pathway.
7. The experts also agree that the proposed building extends across the breadth of the consolidated site within setbacks, although disagree as to whether this building extent/depth and the perimeter walls appear dominant in the streetscape.
8. Ms Laidlaw considers that the proposed building, as located on the site, together with the solid (frontage) perimeter walls, will add an incompatible bulk and scale in the streetscape. The proposed child care centre is considered not consistent with the character of the streetscape or the visual catchment.
9. Ms Laidlaw asserts that the proposed boundary treatment along Burnett Street, with a high (>1.8 m) acoustic fence and nominal external landscaping, does not appropriately reflect the low density residential character of the local area (within its visual catchment), the R2 zone or the streetscape. She considers that the proposed development will: be perceived as a dominant building form that occupies a large portion of the (amalgamated) lot, with an uncharacteristic elevated child care space above basement parking; and contribute negatively to the existing building bulk and scale in the streetscape. She is concerned that the proposed distribution of the building mass across the (consolidated) site and the 'commercial appearance' of the building are not characteristic with the existing low density residential streetscape, particularly along Napier Street.
10. To assess the 'preferred' design as sought for future child care centres in the zone, Ms Laidlaw refers to Part I of the HDCP, and specifically controls C1 and C3 in Section 1, which she considers is not achieved by the proposed development: "C1. A child care centre proposed in an R2 Low Density Residential zone is limited in size to accommodate not more than forty-five (45) children. C3. If the proposed child care centre is to be located in a building consisting of more than one level, the child care centre component must be located on the ground floor of the buildings with office and storage space permitted on the upper level."
11. Mr Wood however, focuses and puts weight on the desired, future for the local area (visual catchment) that includes the R4 zone (opposite the site) when assessing character compatibility, and he relies on the relevant planning controls in Part B of the HDCP, for residential dwellings to inform his consideration. He asserts that there is a compliance with the building envelope control in Part B, section 2 of the HDCP, which at 40% (for the proposed development), makes the proposed design comparable with what is envisaged for future residential dwellings in the local area. According to the relevant controls in Part B of the HDCP, he observes the proposed development has compliant front, side and rear setbacks, and site coverage, and therefore is comparable with a (future, desired) residential dwelling on a similar sized lot.
12. Mr Wood considers that the proposed (building and fence) design addresses the constraints and natural features of the site, and provides an appropriate transition between the R2 and R4 zones. He believes that the proposed design of the child care centre will appear compatible with other residential dwellings along Napier and Burnett Streets, and also with the RFB's on Burnett Street.
13. Based on my observations on the site visit, I accept that there are several recent developments within and surrounding the local area, particularly along Burnett Street in the R4 zone, which have responded to the relevant planning controls for their respective zone. I also accept there are no other comparable commercial style developments in the streetscape or visual catchment. I however prefer Ms Laidlaw's view that the visual catchment assessment for this site should focus on the development and relevant controls of the R2 zone rather than give weight to the adjoining R4 zone.
14. I agree with the experts that within the R2 zone surrounding the site, the newer dwellings appear larger (than the predominantly older housing stock), occupying more frontage, with reduced side/rear setbacks and are typically two-storied. I agree with Ms Laidlaw that the front fences of the (new and old) dwellings in the existing streetscape are predominantly either low level and visually unobtrusive, or non-existent, with landscaping.
15. I accept that the adjoining R4 zone on the western side of Burnett Street has several newer, multi-storied RFB's that are replacing the older single storey housing stock, with more solid structures within the front setback. I also consider this is not reflective of the R2 zone in which the site is located.
16. Having heard and read the evidence of the planning experts, and undertaken the site view, providing my own observations of the site context within the streetscape and visual catchment, I am not satisfied that the proposed development is compatible with the local (visible catchment) character and the streetscape. In particular, I find that the height of the proposed acoustic fence/barrier and extent/siting of the building across the site does not complement the constraints of slope and busy road for its intended purpose. Based on the proposed design, I find that the development will likely dominate the public domain. I explain the rationale to my assessment below.
17. I agree with Ms Laidlaw's assessment of the incompatibility of the proposed development with the character of the streetscape. When viewed along Burnett Street and south of the site, the proposed development will present as an elevated, two-storey building, with bulk added due to the basement parking entering from Napier Street. The proposed building has an extensive building length through the majority of (southern) lot depth, with added bulk along the frontages, due to the proposed high and solid form acoustic perimeter fence. This appearance is not characteristic of either the existing or desired, future streetscape or local area, and is not seen in the visual catchment.
18. The experts agree that the acoustic treatment along the frontages of the site is a direct consequence of the outdoor play space being located in the front and (northern) side of the site. The height of the proposed acoustic fence is exacerbated by the slope of the land, particularly along the Burnett Street frontage. This results in a dominant structure in a streetscape where front fencing is typically low to non-existent. I find that the proposed acoustic fence along the frontages of the site is uncharacteristic in the streetscape.
19. Based on the proposed design of the building, having the elevated (first floor) level as child caring space, with an accompanying outdoor area and extensive shading, together with the high perimeter acoustic treatment, I am not satisfied that the proposed building integrates well into existing residential environment or context. I find that the proposed development does not have an appearance that enhances the streetscape and is not sympathetic to surrounding developments, with regards to bulk and scale.
20. I understand and accept that the applicant has sought to address the potential adverse noise impact to adjoining residences by orientating the outdoor play spaces towards the street frontages, rather than the rear of the site. However, the noise resulting from the outdoor play could equally have been addressed by other considerations. Therefore, I do not accept that the proposed development is the best or most appropriate design option available to the applicant for this site, addressing its constraints.
21. I accept Ms Laidlaw's view that a more sympathetic design that relates better to the slope, dual street frontages and the existing lower density character of adjoining residences could have been achieved on this site. A different design would likely have better achieved the relevant objectives of the CCPG (and HDCP) to achieve a more compatible streetscape character.
22. Considering the relevant requirements established in clause 3.2 of the CCPG, I find that the objective that relates to control C5 is not achieved by the proposed development, because it does not "ensure that the child care facility is compatible with the local character and surrounding streetscape". The proposed development, as designed and situated on the site, does not contribute positively to the local area, and is not compatible with the character of the local area and surrounding streetscape, because of: the dominance of the building form across the site, including the elevated two-storied element that extends most of the lot depth, with high acoustic fencing around the perimeter and minimal landscaping; and the presentation of the proposed building form to the existing streetscape is larger, more dominant compared with surrounding low density residential dwellings in the R2 zone.
23. Although not determinative, I agree with Ms Laidlaw that the controls C1 and C3 in Part I of the HDCP, which seek to inform the design of a child care centre within an R2 zone, are not achieved by the proposed development. These controls aim to ensure that a future child care development on the site relates to adjoining residences by ensuring that the child care facility is limited in size (number of children), to reduce potential amenity impacts and not dominate the streetscape, as a two storey form.
24. I do not consider that the proposed development is an appropriate (good) design in context with the site, and do not accept that Principle (2) in the SEPP Child Care (relating to built form) is achieved.
25. I am not satisfied that the proposed development contributes to the improvement of the character of the locality or is sensitive to the landscape setting and environmental conditions of the locality. The proposed development will appear dominant and bulky in the streetscape, and within the visual catchment, particularly that associated with the R2 zone.
26. I do not agree that the proposed development is acceptable because it relates well to the R4 zone, which is on the adjacent side of Burnett Street or that the CCPG has a subservient role in considering bulk and scale, if the HLEP provisions are achieved.
27. I accept that the proposed development is not inconsistent with the objectives of the R2 zone and satisfies the relevant numeric controls of the HLEP.
28. I accept that the (newer) buildings in the R4 zone along Burnett Street form part of the visual catchment, however, equally, and if not more so, do the dwellings along Napier Street and Burnett Street in the R2 zone. The design of the proposed development is not visually compatible with the existing dwellings in the R2 zone, and do not relate to the relevant provisions of the HDCP. The proposed development will dominate the visual catchment within the R2 zone due to the high and solid formed acoustic fence around the frontages and the larger scale building that extends across the length and breadth of the site. The proposed building form is more consistent with the desired, future character of the R4 zone, and not with the existing (or desired, future) character of the R2 zone.
29. As explained above, I am not satisfied that the proposed development has sufficiently considered or addressed the relevant provisions of the CCPG, and specifically, find that clause 3.2 is not achieved. Clause 23 of the SEPP Child Care is therefore not achieved to the satisfaction of the Court.
30. On consideration of the evidence before me, I am not satisfied that s 4.15(1)(a)(i) of the EPA Act is achieved to grant consent to the DA under appeal.

Is there sufficient parking for the proposed development?

1. Council contends that the proposed development, and specifically the reliance on street parking, is not appropriate to cater for the needs of caregivers, during pick up and drop off at the child care centre. It is argued that the proposed arrangement, requires caregivers to rely excessively on an 'inconvenient' and potentially unsafe street parking arrangement, that could also result in adverse amenity impacts to adjoining residents.
2. Primarily, the contention of Council is that the proposed parking arrangement for the child care centre does not provide sufficient off-street parking for users of the centre, as required in the relevant controls of the CCPG and HDCP below: "Part 3.8 of the CCPG Objective: To provide parking that satisfies the needs of users and demand generated by the centre. C31 Off street car parking should be provided at the rates for child care facilities specified in a Development Control Plan that applies to the land. …. In other areas: • 1 space per 4 children. A reduction in car parking rates may be considered where: … • there is sufficient on street parking available at appropriate times within proximity of the site. Part 3.8 of the CCPG Objective: To ensure that appropriate zone considerations are assessed when selecting a site. C1 For proposed developments in or adjacent to a residential zone, consider: • the acoustic and privacy impacts of the proposed development on the residential properties • the setbacks and siting of buildings within the residential context • traffic and parking impacts of the proposal on residential amenity. … Part I of the HDCP 2. Vehicular Access and Parking O5. To ensure sufficient off street parking is provided for users of the child care centre. C5. Consideration may be given to reducing on-site requirements for short stay parent and visitor parking only if convenient and safe on-street parking is otherwise available. This is providing that the use of such parking does not excessively impact upon the amenity of the adjacent area."
3. The traffic experts agree that the proposed development provides for 10 staff and 10 visitor (including one accessible) parking spaces, located in the basement of the proposed child care centre. Access to the basement carpark is via Napier Street.
4. The experts also agree that the proposed design of parking in the basement is functional, with regards to aisle width, space size and turning area, as shown in Exhibit N.
5. The experts disagree however, on the calculation method to determine the number of parking spaces required for the proposed development, and whether the reliance on street parking spaces for the development, is reasonable.
6. The experts agree there are two different parking rates provided in evidence, being: that based on the HDCP controls in Part A, clause 3.1; and that derived from an assessment/survey by the Roads and Maritime Services (RMS), in Exhibit L. The difference in calculation of parking space requirements using the HDCP and RMS approaches relates to consideration of the time required to drop off and pick up a child from the centre, and reasonableness in reliance on additional parking on the street.
7. The Council relies solely on the HDCP derived parking rate to establish parking demand for the proposed development, whereas the applicant considers it reasonable to adapt and use the survey results of the RMS to modify the HDCP rates.
8. The experts agree that based on the provisions in CCPG at C31, and the HDCP controls for parking at a child care centre in Part A, Table in 3.1, the proposed 76 place centre requires 27 parking spaces.
9. The experts do not agree on the likely time that it would take to drop off and pick up a child from the centre, and whether relying on the additional seven street parking space/s up to 100 m distance from the centre is reasonable, with respect to (caregiver) convenience and (child) safety.
10. The traffic experts agree that the child care centre could safely and conveniently utilise up to five (5) parking spaces within the frontages of the site. The basis on which Mr Mousavi accepts this on-street parking arrangement is that it would be distributed across the two (2) spaces within the street frontage on Burnett Street, with three (3) spaces along the Napier Street frontage.
11. He does not agree that an additional two spaces are convenient or safe beyond the frontage of the site. Therefore, by his evidence, there is a deficiency of two parking spaces for the proposed development. Mr Mousavi explains that for parking to be considered convenient, it should only be provided within the site frontages. He accepts that site frontage parking would not cause any adverse amenity impacts to properties in the surrounding area. He also accepts that there are no controls in the HDCP or documents he can rely on that require parking to be limited to within the frontage of a site.
12. The RMS survey in Exhibit L suggests that drop off and pick up times could be limited to 8 minutes per caregiver/parent. Mr McLaren suggests that by adopting the RMS assessment, only 14 parking spaces (10 spaces for staff and four for visitors) would be required for the 76 place child care centre, which are adequately provided on the site.
13. Mr McLaren also considers that, if necessary, there is adequate, convenient and safe parking beyond the frontages of the site to service the required needs of the proposed development. He seeks to address any possible shortfall in parking by conditions of consent, specifically, signage of when the basement parking is full and relying on an 8 minute limit for pick up/drop off time.
14. Mr Mousavi accepts the basement capacity signage condition, however disputes whether establishing a time for caregivers to be present on site is realistic and appropriate to address the deficiency in parking spaces provided on the site.
15. The child care experts agree that utilising a staff member to monitor the parking is not appropriate, as proposed in the Plan of Management.
16. My observations from the site view are that Napier Street is wide, well formed with a wide pavement, accessible and has ample opportunity for on-street parking. With regards to Burnett Street, I find it is busier and steeper in grade, although appears to have potential for available parking.
17. I note that the applicant has not provided a specific parking study to support the DA, but relies on the RMS survey. I accept the proposition of Mr McLaren that due to the current low density residential nature of the immediate streetscape and apparent adequacy of parking on the larger, newer residential lots around the site, there is a reduced reliance on street parking by residents. Also, there is adequate street parking to support the proposed development during the times of its operation, particularly in peak drop off and pick up times.
18. The traffic experts agree, and I accept that there are sufficient sightlines provided across the proposed basement driveway on Napier Street. Therefore, the proposed basement or driveway design will not adversely impact pedestrians to cross safely if they were to utilise on street parking beyond the site frontages.
19. I am satisfied, that the safety and convenience of caregivers whom park within and beyond the frontages of the site is not compromised by the proposed development. The streets around the site are wide, well paved and well graded, so that the movement of children to and from the site should not be unduly burdensome, including if relying on prams. I find that Napier Street is the better parking option for caregivers due to its wide and more low density residential setting. A pedestrian access direct to the centre from Napier Street would have been more appropriate in the design of the proposed development, however it does not negatively influence the Courts decision.
20. I accept the position of Mr Mousavi to adopt the HDCP parking rates calculation method for this development. Therefore, an additional seven (7) parking spaces are required on the street to service a 76 place child care centre on the site. I do not accept that it is appropriate to require caregivers to drop off and pick up in an 8-minute window, and therefore the RMS survey method is not relevant in my consideration of required parking spaces. Further to this, cl 26 of the SEPP Child Care and the CCPG explain that the parking rates to be assessed for a child care centre are to be derived from a relevant development control plan. My determination to rely on the HDCP parking rates is consistent with these provisions.
21. Despite the deficiency of onsite parking, I am satisfied that the surrounding streets to the site, particularly Napier Street are capable of providing safe and convenient parking to service the proposed development. Therefore, I find that the relevant controls and objectives of clause 3.1 of the HDCP and clause 3.8 of the CCPG are achieved, because there is sufficient on street parking to service the proposed development at appropriate times, within proximity of the site to address the shortfall of seven basement parking spaces on the site.
22. I do not rely on the proposed time limit established in the draft conditions of consent, Exhibit 10 to inform this determination.
23. I accept that there are there are likely no adverse amenity impacts to surrounding residents by the proposed development's proposed reliance on street parking because the streets appear capable of providing sufficient space for two parking spaces, which is unlikely to result in adverse noise impact. Therefore, the relevant controls and objectives of the CCPG and HDCP are achieved by the proposed development.

Are there adverse amenity impacts resulting from the proposed development?

1. Council contends that the proposed development will have potential adverse amenity impact both externally (to residents) and internally (to children).
2. The planning experts agree that the proposed development has been assessed as a 76 place child care centre, which as amended from the original proposal results in three less children in the 2-3 year age group. This results from a reduction in the area of unencumbered outdoor play space on the ground floor and a deletion of the southern 'transitional' area, that addresses the privacy amenity issues raised for the adjoining properties.

Adjoining residence related amenity impacts

1. I have already addressed the potential for adverse noise impact to adjoining residents resulting from a reliance on street parking for the proposed development. I observed that Burnett Street is a busy road that already has traffic noise, which carries through to the frontage of the site along Napier Street. The additional reliance on seven street parking spaces by users of the proposed development beyond the frontages of the site would not likely contribute significantly to existing residential traffic noise impacts. This issue did not unduly concern the acoustic experts, and was not raised as a contention by Council.
2. The acoustic (and child care) experts are not in agreement with regards to the potential for adverse noise impact to residents from child's play in the outdoor play spaces, and the accuracy of measurements and noise criteria relied on by the applicant to mitigate the potential for adverse impact.
3. The acoustic experts are in agreement that any noise emission from the proposed (outdoor) transition areas, car park and ventilation system individually comply with the relevant noise criteria, established in the AAAC Guidelines. However, the Council is concerned that cumulatively, noise could detrimentally impact the amenity of residents, particularly at 1 Napier Street.
4. The acoustic experts agree that the relevant method of measurement to establish noise criteria are provided in the AAAC Guidelines, section 3.1 (Background Noise Monitoring).
5. According to Mr Haydon, a cumulative noise impact assessment is required, pursuant to section 3.2.2 of the AAAC Guidelines, which has not been provided in evidence by the applicant.
6. Mr Gauld explained that he has monitored noise readings from three 'representative' background locations, identified as: noise logger 1 (at front of 169 Burnett Street); noise logger 2 (at rear of 169 Burnett Street); and noise logger 3 (at rear of 171 Burnett Street). He states that noise logger (NL) 1 represents all residences with frontages to Burnett Street, including 167, 204 and 206 Burnett Street, plus 2A Napier Street. NL2 represents areas of residences beyond the street frontage, including at 167 Burnett Street (rear) and 1 Napier Street (rear and side). NL3 represents the front of 1 Napier Street. The location of these loggers and receivers are provided in Figure 1 of Exhibit 4.
7. Mr Haydon does not agree that these locations are considered 'representative' to accurately reflect the potential noise impact at all sensitive (residential) receivers, and also are not consistent with the requirements for measurement established in section 3.1 of the AAAC Guidelines.
8. Mr Haydon does not agree that the noise logging locations selected by Mr Gauld are suitable to establish accurate noise criteria for the nearest sensitive receivers, and therefore the results do not represent accurately the 'noise environment'. He considers that the use of multiple loggers to determine noise criteria is not appropriate, and that NL2 is the most 'representative' data logger, which should alone be used to assess sensitive (residence) receivers, consistent with the requirements described in the AAAC Guidelines as follows: "For the assessment of noise emission, the noise logger should be located to measure the background noise environment at a location most representative of the most affected sensitive receiver locations."
9. The acoustic experts therefore disagree whether the derived rating background levels (RBL) relied on for the DA, as provided in Tables 3 (RBL) and 4 (noise criteria) of Exhibit 4, are sufficiently accurate to assign noise criteria to sensitive receivers. They agree that the noise criteria are calculated as RBL plus 5 decibels (dB).
10. The issue that the Court must firstly address is whether the data from multiple loggers is appropriate to inform the baseline noise survey and the derived noise criteria.
11. Mr Gauld determines that the RBL at the site varies between 42 to 48 dBA during the daytime (between 7 am and 6 pm). NL1 and NL2 record the highest and lowest daytime readings, respectively. The RBL at NL2 during the daytime is determined as 42 dBA. These results are described as the LA90 background noise levels in the AAAC Guidelines and in Exhibit 4, which I understand is a measurement of all noise on the site without the proposed development noise operating or affecting the measurement results. This in effect forms the background noise that informs the noise criterion.
12. I accept Mr Haydon's position, that NL2 is the most representative and appropriate location to determine the noise criterion for all sensitive receivers around (and outside of) the site. I also accept that the AAAC Guidelines only require one representative logger to measure the background noise environment, where it is possible to do so.
13. The RBL at NL2 is established at 47 dBA (day RBL plus 5 dBA). I understand that this location (at NL2) satisfies the requirements for measurement of noise emissions as established in the AAAC Guidelines. These Guidelines expressly require a singular logger (at the most sensitive) location to represent all sensitive receivers, where it is possible to obtain a measurement. I find that there are no constraints to obtaining a measurement at this location for this site, being NL2, and therefore no other sites are necessary for measurement for this purpose .
14. According to Mr Gauld's survey results, individually the elements that create noise from the proposed child care centre, being indoor/outdoor child's play, ventilation system and basement parking, comply with the noise criteria established in the AAAC Guidelines.
15. However, as contended by Mr Haydon, I accept that there is no cumulative assessment of the potential noise impact to residents from the operation of the child care centre, and in particular to 1 Napier Street, which is located in close proximity to indoor/outdoor play areas and the entry/exit to the basement car park. I am therefore unable to assess or be satisfied of compliance with regards to cumulative noise impact for the proposed development, and find that the requirements in the AAAC Guidelines are not adequately addressed.
16. I am not satisfied, that without the accurate baseline conditions, the proposed design has sufficiently mitigated noise impact to adjoining residents derived from the proposed development. Objective in Part 3.5 of the CCPG that states "To minimise the impact of child care facilities on the acoustic privacy of neighbouring residential developments" has not been addressed to my satisfaction. Based on the evidence before me, I am not satisfied that the proposed noise mitigation measures, such as the acoustic fence, as described in Mr Gauld's study or provided in the Plan of Management (Exhibit P), are sufficient to mitigate noise impact to residents, particularly to 1 Napier Street.
17. I accept that the noise study undertaken by Mr Gauld has assessed a child care centre for 79 children, which is a higher number of children than currently proposed in the amended DA before the Court under appeal.
18. I however do not have relevant information to be informed on what the likely changes to noise estimates would be and whether the amended DA achieves the requirements of the AAAC Guidelines or the CCPG. It is fact, that the acoustic assessment before the Court does not directly assess the amended DA (for 76 place child care centre).
19. It is unfortunate that amendments were made to the DA at such a late stage in the hearing. As a consequence, I find that the supporting documents, such as the acoustic study relied upon do not accurately reflect the proposed development before the Court. The acoustic evidence is therefore not sufficient for the Court to be satisfied in it is consideration of the amended DA under appeal.
20. In consideration of the proposed development, I cannot be satisfied that the potential amenity impacts (from noise) to adjoining residences has been sufficiently understood, addressed and/or mitigated, and that s 4.15(1)(b) is addressed. I am also not satisfied that I have sufficient information to determine the suitability of the site for the proposed development, and therefore s 4.15(1)(c) of the EPA Act is not addressed.

Child related amenity impacts

1. The child related amenity impacts as posed to the Court are separated below into internal issues and external issues.

Internal (child) amenity

1. The internal amenity issues that the child care experts disagree on relates to the design/sufficiency of the toilets and changing areas for the 0-2 year old's on the first floor level. The Council contends that the proposed toilet/washing and changing facilities are not well designed, sufficient in size/number, nor appropriate for use by carers of the proposed age group.
2. The Council considers that the layout of the 2-3 year old play room, identified as play room 2, is unacceptable because a large portion of the rear space, when the partitions are closed, will have poor sunlight and ventilation, thereby affecting child well being.
3. Clauses in Chapter 4 of the CCPG provide design guidance for the internal physical environment of a child care centre, and apply the relevant regulations of the l Regs. The contentions relate to toilet, washing and change areas, described in clauses 4.2 and 4.3 of the CCPG.
4. Further to this, clause 4.4 of the CCPG relates to the provision of adequate 'natural sunlight' and 'good ventilation' to indoor child spaces, and are relevant for the Courts consideration of the DA under appeal.
5. The design guidance provided in the CCPG must be considered by the Court when assessing the proposed design and siting of a child care centre, pursuant to cl 23 of the SEPP Child Care.
6. Based on the amended plans, Exhibit N, the child care experts agree that the location of the laundry is now appropriate and the detail on the kitchen is sufficient. These related contentions are resolved.
7. With regards to the design of play room 2, Ms Shephard does not agree that there is sufficient natural light or (cross flow) ventilation due to the depth of the room and lack of windows at the rear/side of the room. She considers that the doors that open to the outdoor play space will not provide sufficient amenity for children when utilising the full space of the room, particularly at the rear.
8. She also considers that the proposed location of the 0-2 year old children on the first floor is not convenient for caregivers or appropriate during an emergency evacuation, due to reliance on stairways for non-walking children.
9. With regards to the design of toilet/nappy related facilities for the 0-2 year old children, Ms Shephard explains that there are insufficient nappy changing pads and storage, as well as insufficient supervision for toileting. With regards to the 2-5 year old children, she considers there are insufficient toilets to service this age group.
10. Overall, Ms Shepard does not consider the (indoor) amenity provided for the children utilising the child care centre has facilities that are sufficient, appropriately located nor well designed.
11. Ms Campbell however considers that there is sufficient amenity provided to all the proposed playrooms, which is derived from a combination of the glazed doors, skylights and mechanical ventilation. She explains that it is common practice for modern designed child care centres to utilise a combination of light and ventilation approaches to provide adequate amenity for children, as considered in the CCPG.
12. Further to this, she considers that there are sufficient nappy changing and toilet facilities to meet the needs and well being of the children in their particular age group and expected level of (toilet) training.
13. After assessing the oral and written evidence of the experts, I have formed the opinion that the proposed design of play room 2, which relies on both opening of the glazed doors and mechanical ventilation, together with skylights, provides sufficient amenity with regards to natural light and good ventilation. Therefore, clause 4.4 of the CCPG is satisfied.
14. With regards to the proposed nappy changing, toilet and hygiene areas, I prefer Ms Shephard's assessment, that the design and provision of nappy changing, nappy storage and toilets for the respective age groups is insufficient to meet the needs of the children. I accept that children of the different age groups will have diverse needs and that flexibility for their various stages of toileting within each of the age groups is important to ensure their health, well being and dignity. I find that the provision of more toilets for the 2-5 year old group and nappy changing facilities for the 0-2 year old group would provide a better and more healthy environment for children utilising the centre.
15. Therefore, I find that the requirements of the CCPG that provide guidance on the internal design requirements relating to toilet, washing and change areas, specifically in clauses 4.2 and 4.3 are not satisfied by the proposed development.
16. As a consequence of the poor design of toilet and hygiene facilities, I am not satisfied that the child care centre would have the capacity to ensure adequate health and hygiene practices for children, and therefore the relevant provisions of the CCPG are not achieved.
17. After consideration of the evidence before the Court for the amended DA under appeal, I am not satisfied that cl 23 of the SEPP Child Care and s 4.15(1)(a)(i) is not adequately addressed.

External (child) amenity

1. The external amenity issues in contention that may affect children at the proposed child care centre relate to traffic noise and healthy outdoor play space, as assessed below.

Design of unencumbered outdoor play space

1. There are two issues that the Court must assess regarding the proposed unencumbered outdoor space, being: the sufficiency of areal dimensions; and appropriateness of the proposed design.
2. Clause 4.9 of the CCPG relevantly states the following: "An education and care service premises must provide for every child being educated and cared for within the facility to have a minimum of 7.0m2 of unencumbered outdoor space. If this requirement is not met, the concurrence of the regulatory authority is required under the SEPP."
3. The parties and the Court accept that the NSW Department of Education have indicated in a letter dated 7 November 2019 (Exhibit 1), that its concurrence, pursuant to cl 22(1)(b) of the SEPP Child Care, was not required for this development, because the design of the child care centre did not rely on simulated outdoor play space, and the total area of unencumbered outdoor space complies with the areal requirements of reg 108 of the ECC Regs, being 7sqm per child. It is accepted that this assessment was for a 76 place child care centre, however for reasons provided below, I accept that this assessment would not change the Department's position.
4. It is accepted by the planning experts that for the amended DA (being for a 76 place child care centre), the total area of proposed unencumbered outdoor space (between the ground and first floors) is compliant with the numeric requirements of clause 4.9 of the CCPG.
5. Irrespective of the overall numeric compliance for the proposed unencumbered outdoor space, the planning experts disagree as to whether this space is sufficiently designed and distributed across the various age groups, and therefore whether clause 4.9 of the CCPG is achieved. They agree there is a numeric excess of outdoor spatial area available for by the 0-2 year old group on the first floor, with a numeric deficiency of (outdoor) spatial area directly accessible to the 2-5 year old group on the ground floor. Therefore, the experts dispute whether the first floor pay area is too big and the ground floor area is too small, as useable space for each child.
6. The discrepancy in the distribution of outdoor play space between the ground floor and first floor is a function of the overall design of the child care centre, which places the learning/play areas for the younger children (0-2 year old) on the first floor and the older children (2-5 year old) on the ground floor.
7. I find that the requirements of clause 4.9 of the CCPG do not specifically describe how the unencumbered outdoor space should be distributed across the various age groups. This is not the test. I accept that the areal requirement of 7sqm for each child for a 76 place child care centre on the site is satisfied, and therefore clause 4.9 of the CCPG is achieved.
8. Further to this, the child care experts do not agree on whether the outdoor spaces are well designed, to benefit the experience of children, as required in clause 4.10 of the CCPG, below: "4.10 Natural environment Regulation 113 Education and Care Services National Regulations The approved provider of a centre-based service must ensure that the outdoor spaces allow children to explore and experience the natural environment. Design Guidance Creating a natural environment to meet this regulation includes the use of natural features such as trees, sand and natural vegetation within the outdoor space. ….. The outdoor space should be designed to: • provide a variety of experiences that facilitate the development of cognitive and physical skills, provide opportunities for social interaction and appreciation of the natural environment • assist supervision and minimise opportunities for bullying and antisocial behaviour • enhance outdoor learning, socialisation and recreation by positioning outdoor urban furniture and play equipment in configurations that facilitate interaction."
9. Having reviewed the amended plans (Exhibits N and O), I find that the proposed outdoor (play) space satisfies the general requirements of a well-designed, interactive play area, as required in clause 4.10 of the CCPG. On the ground floor, where the 2-5 year old children will play, there is an area for deep soil landscaping with trees and grassed area, together with sandpit, mulched garden area. The first-floor outdoor play area is intended for the younger children, and has a sand pit, garden beds and balancing items. These areas appear appropriate for the respective age group to encourage sensory play. Therefore, I find that clause 4.10 of the CCPG is satisfied, and the proposed outdoor play spaces on both the ground floor and first levels are designed to benefit the well-being of children at play.
10. The child care experts also disagree as to whether clause 4.12 of the CCPG, as it relates to fencing, is achieved, due to the perimeter acoustic fencing proposed around the outdoor play spaces. The design guidance in cl 4.12 requires that fencing around outdoor play spaces should 'not create a sense of enclosure'.
11. Based on the design of the ground floor outdoor play area, I do not agree that the proposed (1.8m) acoustic fence around the ground floor outdoor play space creates a sense of enclosure that would affect the children accessing the outdoor space. The proposed area is large enough, sufficiently designed and landscaped, and therefore clause 4.12 of the CCPG is achieved.

Noise emissions

1. The CCPG seeks to protect children whilst in care, from adverse noise impact, and specifically as described in clause 3.6, establishes an objective "To ensure that outside noise levels on the facility are minimised to acceptable levels."
2. The issue between the experts relates specifically to the noise generated from nearby Burnett Street and its potential effect on children during outdoor play.
3. The acceptable level of noise for assessment of the child care centre is established in the AAAC Guidelines. The AAAC Guidelines require traffic noise at any location within the outdoor play/activity area to be set below the Equivalent Continuous Sound Pressure Level, or Leq/LAeq. I understand this is the constant noise level that would result if the same total sound energy being produced over a given period. The Leq, 1 hour is established as 55 dBA.
4. I accept the joint expert position, that NL1 is the most representative location to determine the noise criterion for the proposed (ground floor) outdoor play area on the site. NL1 is the 'most' representative location to determine the criterion for noise from outside of the site and into the outdoor play area, because Burnett Street is the main contributor of traffic noise to the site. NL1 is the closest of the measured sites to measure noise emissions to the sensitive receiver of outdoor play, as established in the AAAC Guidelines.
5. Despite this, I agree with Mr Haydon that NL1 is not optimally located to accurately assess noise emissions to the closest play location. I accept his estimate that at a closer, more sensitive receiver location, noise emissions (from the road to the outdoor play space) could potentially be higher, which he estimates at 65-68 dBA. I find that the calculations provided by Mr Gauld may not accurately reflect the actual traffic noise that could be imposed on children at play in the outdoor play spaces, particularly when they are located close to the western boundary of the site. Therefore, I am not convinced that the proposed noise mitigation for children at outdoor play is acceptable.
6. As provided in Exhibit 4, Mr Gauld assesses that NL1 measures the Leq, 1 hour at 63 dBA for the outdoor play spaces on the site. However, with the proposed 1.8m high acoustic wall around the outdoor play space, he estimates the calculated traffic noise is reduced to 51 dBA, which is deemed acceptable according to the AAAC Guideline requirement, established at 55 dBA (Leq, 1 hour).
7. However, due to the potential for inaccuracy in the noise data relied on by Mr Gauld, I find there is insufficient evidence provided to the Court to be satisfied that the proposed (1.8m) acoustic barrier around the perimeter of the ground floor outdoor play area is sufficient to minimise the traffic noise to an acceptable level, measured as Leq, 1 hour at or below 55 dBA, as required in the AAAC Guidelines.
8. I am not satisfied that the objective in clause 3.6 of the CCPG to ensure that outside noise levels are minimised to an acceptable level (55 dBA) is achieved. I cannot therefore be satisfied that the site is suitable for the proposed development, pursuant to s 4.15(1)(c) of the EPA Act.

Costs

1. In response to the Court granting leave to amend the DA at the start of the hearing, the respondent sought for the Court to make a mandatory costs order, pursuant to s 8.15(3) of the EPA Act. Section 8.15(3) of the EPA Act states: (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies.
2. Mr Stafford raised the issue of costs in oral and written submission, in response to the applicant's amendments to plans and documents that support the DA under appeal.
3. Mr Wright also made written submission on the issue of costs. He considers that it was the respondents time taken on cross examination that is the issue with respect to costs associated with the hearing and not the amendments made to the DA. He opposes the cost order.
4. In Cachia v Manly Council (No 2) [2009] NSWLEC 1107 (the Cachia judgment) Senior Commissioner Moore explained that for s 8.15(3) of the EPA Act Section (equivalent to former 97B) to have effect, two tests/steps of consideration are required by the Court, as follows: "[3] …The first is that there has to be an allowing by the Court of the filing of an amended development application. The second, but not necessarily requiring to be dealt with sequentially with the first, is a consideration of whether the amendments that would be comprehended by such an amended development application constitute 'a minor amendment' or not.'"
5. I find that the first test was met during the proceedings by the grant of leave for amended material (plans), as generally detailed above. The Court granted leave to the applicant to amend the DA twice during the hearing, and it is noted that the respondent only objected to the lateness of the second amendment. The first amendment dealt with by the Court in the hearing related to amended landscape plans and an acoustic report. The second amendment to the DA sought to reduce the proposal to a 76 place child centre and consolidate the lots.
6. As a consequence of the amended plans and documents that support the amended DA under appeal, the respondent amended their SoFC a number of times, whereby some issues in contention were addressed, however other issues were raised. Expert reports and further amended plans were based on the amended SoFC available at the time of each conference.
7. At the commencement of the hearing, the parties were of the view that based on the amended plans tendered at the start of the hearing and expert reports, many contentions were resolved. It soon became apparent during the hearing that the experts were not as agreed in their positions as conveyed in their expert reports.
8. In particular, the child care related issues (internal design and outdoor play contentions) took considerably more time in oral evidence due to uncertainty in the detail provided in the landscape and architectural plans that support the DA, and that the expert reports had not sighted critical documents.
9. I recognise that the hearing took longer because the experts were required to give more detailed oral evidence and to clarify their positions to the Court, which I consider was mostly because the experts did not conference effectively prior to the hearing and the depth at which the respondent sought to cross exam. In addition, the expert reports were not sufficiently transparent (to each of the parties) to adequately reflect their shared and opposing positions. This was a fault of both the parties and their experts.
10. It was not helpful to the Court or the respondent that the applicant did not tender the amended plans to amend that DA that effectively reduced the number of children at the start of the hearing, despite the planning experts having had addressed this prior to the hearing, as described in their reports. This change to the DA was not inconsequential to the evidence provided and to the preparation of the experts.
11. I consider that the amendments to the DA under appeal were not minor and were the cause of unnecessary costs to the Court, respondent and applicant. The changes to the DA, particularly the reduction in child numbers at the centre, were not 'minor' in the sense of impact to the respondent's case at such as late stage in the hearing.
12. The Senior Commissioner's comments made at [26] in the Cachia judgment recognise a consideration that it is not the number of changes but the consequence of the changes to amendments of the DA: "[26] 'I am satisfied that it would be appropriate, consistent with what his Honour said in Coshott and consistent with the legislative intention, to have regard not to the number of amendments but, whether in the context of the issues that are pressed by the council, the total effect of the changes are minor or not.'"
13. The respondent, in response to the DA amendments made by the applicant throughout the hearing, was required to re-notify residents, put on further detailed submissions to the Court to support its case including amending again the ScFC and provide supplementary expert reports.
14. The Court directly asked the applicant at the site view whether the plans and documents to be relied on in the hearing were before the Court, and the applicant at this point noted that further changes were envisaged, although not yet available. There is no reason given to the Court or the respondent why the amendments to the number of children at the centre and site consolidation could not have been dealt with prior to or at the start of the hearing.
15. I agree with the respondent that the amendments to the DA were not minor and resulted in additional costs to present their case effectively.
16. The Court gave both the parties ample time and opportunity, as agreed by the parties, to address the amendments to the DA to ensure adequate time for preparation and provision of evidence. I accept that the changes to plans and documents that were granted leave by the Court before and during the hearing were accepted by the parties as being generally positive in resolving key contentions, resulted in a better planning outcome and were agreed by the experts.
17. Therefore, I find that the second test has been satisfied to grant costs to the respondent. The cost order is upheld.

Conclusion

1. The proposed development has been assessed by the Court, based on the evidence, including the (amended) supporting plans, documents, draft conditions of consent, expert reports, onsite view and photographs.
2. After consideration of the evidence before me, I am not satisfied that the amended DA under appeal addresses the relevant jurisdictional matters required for my consideration as described in s 4.15(1) of the EPA Act.
3. I am not satisfied that the proposed development is appropriately designed and sited or suitable for the site, pursuant to ss 4.15(1)(a)(i), (b) and (c) of the EPA Act. The combination of issues that inform this assessment include: the inadequate design of hygiene facilities; potential for acoustic impact to adjoining residences and children at outside play; and the extent of the dominant form of the building and acoustic fence, which is out of character for the streetscape and locality.
4. I accept that the (resident) submissions were received in response to (re)notification of the (amended) DA, and these have been provided in evidence for assessment by the Court. I do not have sufficient evidence to be satisfied that the resident objections have been adequately considered and addressed, as required in s 4.15(1)(d) of the EPA Act.
5. For the reasons provided above, I am not satisfied that the proposed development has sufficiently considered or is in the public interest, pursuant to s 4.15(1)(e) of the EPA Act.
6. Therefore, the appeal for DA 698/2018 is refused, pursuant to s 4.16(1)(b) of the EPA Act.

Orders

1. Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on amended plans, provided in Exhibits N, O and P. 2. The appeal is dismissed. 3. Development Application (DA) 698/2018 which as amended, seeks site consolidation of two lots into one lot, demolition of existing structures, and construction of a two-storey, 76-place child care centre with basement parking, fencing and landscaping on Lots 8 and 9 DP 975457, also known as 169-171 Burnett Street, Mays Hill is refused. 4. The Applicant is to pay the costs of the Respondent thrown away as a result of the amendments of the application for development consent, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 5. The exhibits are retained.

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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: 08 March 2021