Yuan v Bayside Council

The site and the locality

1. The site comprises two allotments and is legally described as Lot 36 in Deposited Plan 5216, known as 3 Oriental Street, and Lot 37 in Deposited Plan 5216 known as 1 Oriental Street. It has a single street frontage of 24.38m to Oriental Street to the north east and a site area of 1044.8m2 with a fall of approximately 1.5m from the south eastern boundary to the north west. The site is currently vacant and does not accommodate any significant vegetation.
2. The hearing commenced with a site inspection which included a viewing of the Oriental Street site frontage and the form of adjacent development which comprises a mix of multi storey mixed use development (to the south east), 2-3 storey residential flat buildings (to the north and north west), and some single storey development to the south. Specifically, the subject site shares its southeastern boundary with multiple properties including a four (4) storey mixed use building (ground floor commercial fronting Forest Road and shop top housing above) with basement parking at 437 Forest Road and a single storey commercial use with parking at the rear at both 443 Forest Road and 447 Forest Road. To the rear the site adjoins 6 Kingsland Road South which comprises a single storey brick dwelling and 8 Kingsland Road South a two (2) storey masonry dwelling. Immediately to the north-west the site is adjoined by 5-7 Oriental Street which accommodates a brick three (3) storey residential flat building with at grade parking.

Planning Framework

1. The site is zoned R4 High Density Residential under Bayside Local Environmental Plan 2021 (BLEP 2021) although it is located at the edge of the zone boundary with the land immediately to the south east being zoned MU1 Mixed Use. The proposed childcare centre is permissible with consent in the R4 zone and is consistent with the objectives of the zone including notably "To enable other land uses that provide facilities or services to meet the day to day needs of residents.".
2. Clause 4.3 of BLEP 2021 establishes a maximum height of buildings development standard for the site of 14.5m. The proposed development complies with this development standard having a maximum height well below the 14.5m limit.
3. Clause 4.4 of BLEP 2021 established a maximum floor space ratio development standard for the site of 1:1. The proposed development similarly complies with this development standard having an FSR of 0.544:1.
4. State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies to the proposed development. Notably s 3.23 provides as follows: 3.23 Centre-based child care facility - matters for consideration by consent authorities 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.
5. The Child Care Planning Guideline (CCPG) contains a number of design quality principles in Part 2 and matters for consideration in Part 3. The design quality principles include ensuring that the design responds and contributes to its context (Principle 1), that it achieves a scale, bulk and height appropriate to the existing or desired future character (Principle 2), that it achieves sustainable design (Principle 4), that the landscape and buildings are integrated to result in attractive development (Principle 5), and that it optimises the use of the built and natural environment for safe learning and play (Principle 7).
6. Part 3 of the CCPG includes key considerations relating to site selection and location, compatibility with the local character and streetscape, delineation between the child care facility and public places, minimising impact on adjoining buildings, the provision of parking that satisfies the needs of users, and the provision of a safe and connected environment for pedestrians both on and around the site.
7. An assessment against the relevant provisions of the CCPG is provided in the Statement of Environmental Effects prepared by BMA Urban (dated October 2023). Further the Statement of Facts and Contentions (SOFAC) refers to non-compliances which have since been resolved as confirmed in the Joint Expert Report of the Planning and Childcare experts at Ex 4 and through the subsequent submission of amended plans and additional documentation. Accordingly, I accept that the relevant matters contained in the CCPG have been considered.
8. Specifically in relation to s 3.22 of the TI SEPP, I note that the proposal complies with both the indoor and outdoor space requirements set out in regs 107 and 108 of the Education and Care Services National Regulations and therefore the concurrence of the Regulatory Authority is not required.

Contentions

1. Issues in the case were outlined in the amended SOFAC filed by the Respondent on 3 September 2024. As outlined above the Respondent now agrees that all these contentions are resolved. The contentions related to: an incompatibility with the context of the local area (Contention 1), privacy (Contention 2), landscaping (Contention 3), indoor and outdoor play space (Contentions 4 and 5), parking and access arrangements (Contention 6), earthworks (Contention 8), stormwater (Contention 9), acoustic impacts (Contention 10), inadequate information (Contention 11) and the public interest (Contention 12).
2. The contentions were resolved during and prior to the hearing by the following additional or amended documentation:

• Driveway plans prepared by AE Consulting dated 17 June 2024 (Ex B Tab D)
• Stormwater specification plans prepared by Ocean Protect dated 15 October 2019 and 18 October 2023 (Ex B Tab E)
• Parking and Access Arrangements letter prepared by CJP Consulting Engineers dated 25 May 2024 (Ex B Tab I)
• Geotechnical Investigation Report prepared by Geo-Environmental Engineering dated 2 June 2024 (Ex J)
• Remedial Action Plan prepared by Geo-Environmental Engineering dated 2 June 2024 (Ex D)
• Preliminary and Detailed Site Contamination Investigation Report prepared by Geo-Environmental Engineering dated 2 June 2024 (Ex E)
• Stormwater Plans SW10, SW20, SW30, SW01-08 (Rev H) prepared by AE Consulting Engineers dated 28 October 2024 ((Ex 7)
• Acoustic Report 4846-1.1R Rev E prepared by Day Design dated 21 October 2024 (Ex 6)
• Architectural Plans A001, 003, 020, 100-104, 201-204, 220, 301-302, 601-603, 801-802 Rev L prepared by Resolute dated 6 November 2024 (Ex M)
• Landscape Plan L01-L04 Rev B prepared by Zenith Landscape Design dated 6 November 2024 (Ex N)
• Plan of Management V1.10 prepared by Ology dated October 2024 (Ex O), and
• Survey Plan prepared by PK Surveys dated 5 June 2024.

1. Notable changes to the architectural plans include:

• The setback from the boundary of Indoor play area 2's south eastern wall was increased to 1.2m,
• A garden storage area was located in the 1.2m setback outside indoor play area 2,
• An additional skylight was added to the 1st floor to increase the solar penetration to the ground floor,
• The two circular skylights were increased from a diameter of 2300mm to 3000mm,
• Two frosted glass highlight windows were added to play room 2's southeastern wall on the ground floor,
• The fence height was revised to accord with the landscape plans,
• There was a reduction of the north western planter adjoining 5-7 Oriental Street and a glass barrier was provided to the inside edge of the planter,
• An additional south eastern planter was provided adjoining the right of way (ROW) including a glass barrier to the inside edge of the planter, and
• Additional shade sails were provided above the outdoor play area consistent with the landscape design.

1. The application was also amended via the Plan of Management to provide for a maximum of 4 hours of outdoor play per day.

Public submissions

1. Following lodgement with the Council, the original development application was publicly exhibited from 5 to 19 December 2023. Eleven (11) individual submissions were received in response. In addition two neighbours, including a neighbour from 5-7 Oriental Street to the northwest, and a neighbour from 437 Forest Road to the southeast, spoke at the commencement of the hearing against the proposed development. The neighbour from the building at 437 Forest Road spoke on behalf of the strata body.
2. By way of summary, the matters raised by the residents in the written and oral submissions given at the hearing included concerns in relation to:

• Noise
• Pollution
• Traffic and parking issues
• Loss of privacy
• Loss of solar access
• Property value
• Location within a residential area
• Potential increase in accidents / safety
• Insufficient geotechnical report and potential for excavation to impact on adjacent buildings
• Setback non compliances, and
• Impact of mechanical ventilation.

1. Notwithstanding being one of the primary issues raised by submitters, traffic parking and access issues were not raised as contentions in the proceedings and it is common ground between the parties that these impacts are acceptable. Having regard to the joint report of the traffic experts (Ex 8) and the conditions of consent, I accept that the traffic, access and parking impacts of the proposal are acceptable. Similarly, the concerns raised by objectors with respect to height, bulk and scale, visual privacy, the plan of management, light and ventilation and construction impacts have been considered below and found to be satisfactory.

Expert evidence

1. Expert opinion evidence was prepared in the form of joint expert reports: planning and childcare (Ex 4), landscape (Ex 5), acoustic (Ex 6), stormwater (Ex 7), traffic (Ex 8) and civil and geotechnical (Ex 9). By commencement of the hearing all matters were agreed by the relevant experts having regard to the additional / amended information outlined above with the exception of in respect of acoustic matters. Accordingly, it was not necessary for oral evidence to be given at the hearing, apart from the acoustic experts.
2. Expert acoustic evidence was provided by Mr Stephen Gauld engaged by the Applicant and Mr Steven Cooper engaged by the Respondent. In addition, Ms Karen Barnes a childcare expert, was also engaged by the Applicant and provided input in respect of particular e only, as set out below.
3. The acoustic joint expert report (JER) addressed Contention 10 which provides as follows: 10. The development application should be refused because it has not been demonstrated that the proposal will not cause adverse acoustic impacts to nearby residential premises. Particulars a) The amended acoustic report lodged in support of the amended application dated 17 June 2024 (the amended acoustic report) has not provided photographic evidence of the logger locations to show the relationship of shielding to traffic noise sources and reflective surfaces to identify free-field conditions or semi-reverberant conditions and any corrections to the measured data. b) The amended acoustic report has not provided the measurement data, date and time of attended ambient measurements during logger measurements as required by the EPA's NPfI. c) The amended acoustic report has not provided the measurement data, data and time, and duration of attended ambient measurements related to the material in table 5 nor the relationship of those measurements to the corresponding times of the logger. d) Section 7.2 of the amended acoustic report (Permissible Outdoor Play Scenarios) requires only Outdoor Play Group A OR Outdoor Play Group B at any one time. Having both groups operating together exceeds the nominated target at location R8D. e) There are inconsistencies between the POM and the amended acoustic report. The amended acoustic report does not accord with the Plan of Management (dated June 2024) that considers Outdoor Play Group A (up to 41 children) AND Outdoor Play Group B (up to 30 children). f) The predicted background levels for locations R8A, R8B, R8C and R8D are not accepted g) The amended acoustic report has not provided actual ambient measurement data for location R8 being the most exposed receiver location relative to the roof top outdoor play. Attended daytime measurements adjacent the common boundary at ground level below R8A reveal background levels significantly below that predicted for R8A in the acoustic report. h) The amended acoustic report identified the presence of buildings along Forest Road which provide acoustic shielding to the site. The report has not provided the reduction in ambient noise levels at assessment locations R8A, R8B, R8C and R8D that will occur as a result of the proposed building. The proposed building will result in acoustic shielding of traffic noise to locations R8A, R8B, R8C and R8D and reduce the background level that is used for the acoustic compliance of outdoor play. On the basis of the predicted children noise from outdoor play there will be a clear breach of the background + 5 dB(A) limit. i) The recommendations in the amended acoustic report in terms of sound barrier fences have not been adequately specified on the architectural plans in terms of the proposed design, material, and height. Noting the necessary height of the sound barriers recommended in the acoustic report, details of the design, height, and proposed materials are required to enable a proper assessment of whether the proposed sound barrier fences are acceptable together with the impacts associated with the same. j) The submitted acoustic report recommends structures be erected on common property boundaries, and the consent of the owners of adjoining properties has not been provided. k) Having regard to the above, the proposal is not consistent with Part 3.5 of the CCPG.
4. The acoustic experts agree that the amended acoustic assessment attached to the Acoustic JER (Ex 6 Annexure D) resolved particulars a, b, c, d, e, f, g and i. They further note that they disagree on particular h, but that the change in outdoor play to a maximum of 4 hours a day resolves that particular, and that particular j is not an acoustic issue. Further, they jointly do not accept that particular k is correct, that is, that the proposal is not consistent with Part 3.5 of the CCPG.
5. Accordingly, the only matter in dispute between the acoustic experts articulated in respect of particular h, pars (46) and (47) of Ex 6 is:

• Whether the background noise level will reduce once the proposed building is constructed, and
• Whether the future background noise levels are required to be assessed in contrast to the existing measured ambient noise levels.

1. The experts agree that the applicable acoustic criteria that should be applied to the proposal by way of a condition of consent should be in accordance with the Association of Australasian Acoustical Consultants Guideline for Child Care Centre Acoustic Assessment (AAAC Guideline). The AAAC Guideline identifies the appropriate criteria at residential receptors where outdoor play is limited to no more than 2 hours in the morning and 2 hours in the afternoon as being: "the contributed Leq,15 minute noise level emitted from the outdoor play area shall not exceed the background noise level by more than 10 dB at the assessment location".
2. The disagreement arises in respect of whether the background noise should be as measured in the assessment report (pre-development) or after the development is constructed (post-development). This is pertinent in this case in respect of the background noise levels at the residential receiver at 5-7 Oriental Street which adjoins the development site to the north west.
3. Mr Cooper says that from his attendance at the site it was clear that the dominant noise source affecting the background levels is Forest Road traffic noise to the south east (at the end of Oriental Street) (Ex 6 p17 par 64). He further says that intermittent traffic on Oriental Street was not influencing the background level, that traffic noise coming over the buildings fronting Forest Road was negligible and that once built the proposed development will 'shield' 5-7 Oriental Street from the traffic noise source thereby resulting in a reduction in the background noise level. Mr Cooper says that this in turn will influence the criteria. He says that the Applicant should, and could, have modelled the shield effect of the proposed development to determine the appropriate noise criteria however in the absence of this, a condition should be expressed in the terms of "background + 10dB(A) for outdoor play on the basis of outdoor play restricted to 4 hours a day". He further provided his observation that "if the predicted levels in Table 13 and 20 (of the amended acoustic report at Ex 6 Annexure D) are accurate and the building [stet], then if the background level was to reduce by 2dB(A) there would still be acoustic compliance but with a smaller margin."
4. Mr Gauld says (refer to Ex 6 p 15 pars 48 to 61) that there is no requirement for future background noise levels to be assessed at the planning stage of a development and that there is no evidence that the background noise levels will change as a result of the proposed building. Rather he says that background noise levels are created from all noise in the area including traffic, mechanical plant, both near and far from the site. He also says it is not a straightforward task to model and predict future background (L90) noise levels and that he has never seen it carried out for the purposes of a planning assessment (par 51). Rather he says noise modelling of the Leq levels is common and straightforward and that it is included by the times when noise is at its minimum, when there is no direct or passing traffic or noise that it particularly noticeable (par 53). Further he says L90 noise levels are generally measured not modelled and are used to set criteria that is referred to in a DA consent for certainty (par 56). Mr Gauld advised that the background noise level may reduce or increase once the building is built and that it is difficult to reliably predict the future background noise level (par 57). He notes that the method recommended by the EPA and the AAAC is to measure the existing background noise level (before approval and before construction) and determine a noise criterion to be achieved by the operation of the proposal (par 60). Further, he says that seeking to rely on an uncertain future background noise level is fraught with difficulties and is unreasonable. In summary, his view is that the background noise level, measured in September 2024 at locations D1 and D2 should be relied on to set noise criteria, that if approved would provide the basis for noise criteria to be included in the Conditions of Consent (par 61).

Submissions

1. I received submissions from Counsel for both the Applicant and the Respondent, in respect of the appropriate form of the acoustic conditions specifically in respect of whether the background noise level should be as measured in the acoustic assessment or post development. I was also referred to four (4) authorities relevant to the matter and to the AAAC Guideline and the NSW Environment Protection Authority Noise Policy for Industry 2017 (NSW EPA Noise Policy for Industry).
2. Mr Wright, Counsel for the Applicant referred to Basevski v City of Ryde Council [2022] NSWLEC 1387, noting that in this case the Court imposed conditions of consent which referred to a numeric noise criterion determined based on the agreed background levels pre-development. Mr Wright noted that the experts in that matter were also Mr Gauld and Mr Cooper and argues that this approach is consistent with the approach outlined in the AAAC Guideline and the NSW EPA Noise Policy for Industry. Mr Wright further argues that certainty is required in respect of the background noise levels that the future compliance assessment is to be based on and, that consistent with the AAAC Guideline, this is as assessed at the pre-development stage. He further indicates that the proposal will have a net positive impact on 5-7 Oriental Street and that Mr Cooper is confident that it will be compliant with the criteria whether the background is taken to be as measured before or after development.
3. Mr Seton, for the Respondent, notes that in accordance with s 4.15 of the EP&A Act, it is mandatory that the consent authority consider the impact of development and that this includes the impact of the built form on the rating background noise level (RBL) at 5-7 Oriental Street having regard to the shielding effect. He refers to Northrose Pty Ltd v Willoughby City Council [2021] NSWLEC 1409 which, he says although ultimately refused, supports the argument that the noise criteria should refer to the RBL post development. In this regard he notes that Dickson C acknowledges in her judgement that the positive acoustic impact of the development on the RBL should be considered and that ultimately if a lower background noise level is adopted (having regard to this impact) the breach in the acoustic criterion is likely to be more significant (par 97). I note in this case the acoustic criterion was however breached in either case which varies from the current matter.
4. Mr Seton also refers to two further cases Talhany Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1008 (Talhany) and Eboli v Penrith City Council [2024] NSWLEC 1320 (Eboli), in which Mr Gauld and Mr Cooper were similarly the acoustic experts and in which conditions were applied which referred to background plus 10 dB(A) for outdoor play limited to a maximum of 4 hours per day, not referencing a level identified in the acoustic assessment or the report itself. Mr Wright however argues that these cases do not go to the issue of whether the background should be measured post development or be fixed by the acoustic assessment pointing to a fixed background noise level from the pre-development acoustic assessment of 43dB(A) in Talhany (refer par 19) and 45dB(A) in Eboli (refer conditions 8, 9, & 94).

Findings

1. Pursuant to s 4.15(1)(b) of the EP&A Act it is necessary for the Court as the consent authority to consider the likely impacts of the development in determining a development application. The likely impacts can be positive or detrimental.
2. On balance, I find that it is likely the proposal will have a net positive benefit in acoustic terms on 5-7 Oriental Street having regard to the shielding effect caused by the proposed development itself. This may result in a reduction in the background noise levels which will benefit 5-7 Oriental Street for some 20 hours per day Monday to Friday when there is no outdoor play and 24 hours per day on weekends when the centre is not in operation.
3. During outdoor play, which notably is to be limited to a maximum of 4 hours per day, I find that the relevant acoustic criteria that should be applied is the background noise level plus 10dB(A) with the background noise level as measured in the acoustic assessment submitted with the application in accordance with the AAAC Guideline. While I note that the proposed development may reduce the background noise level, this is not certain as background noise levels may change over time for a variety of reasons. For compliance purposes it is important that the background level be set to ensure certainty going forward. I consider that establishing the background level in accordance with the pre-development acoustic assessment is consistent with the AAAC Guideline, which is the accepted industry guideline and with various cases to which I have been referred. Further, I note that Mr Cooper is confident that the development will be compliant regardless of which background noise level is applied but that certainty can only be achieved if the pre-development background levels are applied.

All other contentions resolved

1. As noted above the experts agree that each of the contentions, other than Contention 10 in respect of acoustic issues, raised by the Respondent on the appeal have been resolved by the amended plans and documentation. I accept the evidence of the experts in this regard.

Development consent should be granted

1. As outlined above, each of the contentions raised by the Respondent on appeal have now been addressed through the amendments to the proposed design and the provision of additional information as agreed in the expert evidence. The Respondent relies on that expert evidence and agrees that there are no remaining contentions that warrant refusal of the development application.
2. The proposed development is appropriately sited, has acceptable traffic and parking arrangements, and does not cause any unacceptable impacts.
3. There are no other issues raised by the Respondent. In addition, the following jurisdictional matters are satisfied:

• Owner's consent to the lodgement of the application has been provided in accordance with the requirements of s 23(1) of the Environmental Planning and Assessment Regulation 2021 (EP&A Reg).
• Consideration has been given to whether the site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). A Preliminary and Detailed Site Investigation report (Ex E) and Remedial Action Plan (Ex D) have been provided which conclude that the site can and will be made suitable for the proposed use. Recommended conditions of consent have also been provided.
• No tree removal is proposed as part of the proposed development therefore the provisions of ss 2.6 and 2.7 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) do not apply.
• The site is not within a regulated water catchment and therefore Ch 6 of the BC SEPP does not apply.
• As the proposal is within close proximity of electricity infrastructure written notice of the proposal has been given to Ausgrid in accordance with cl 2.48(2) of the TI SEPP. Ausgrid consented to the proposed development subject to recommended condition of consent on 5 June 2024 (Ex 3 Tab 9). The recommended conditions have been included at Annexure A.
• In accordance with clause 6.1 of BLEP 2021 the site is within an area identified as potentially comprising Class 5 Acid Sulfate Soils and therefore in accordance with the clause an acid sulfate soils management plan is required if the works are within 500mm of adjacent Class 1, 2, 3 or 4 land that is below 5 metres AHD and by which the watertable is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3 or 4 land. The Geotechnical report (Ex C) indicates that the proposal will not trigger this provision and therefore I am satisfied that an acid sulfate management plan is not required in this instance.
• In accordance with cl 6.2 of BLEP 2021, I am satisfied that relevant matters to be considered prior to granting consent to earthworks have been considered having regard to the Geotechnical Report (Ex J) and relevant conditions of consent.
• Clause 6.3 of BLEP 2021 sets out matters in respect of stormwater and water sensitive urban design (WSUD) to which the consent authority much be satisfied prior to the granting of consent. These matters include incorporation of WSUD principles into the design, stormwater and flooding measures, impact mitigation measures, permeability etc. I have considered the relevant matters and am satisfied having regard to the joint report of the stormwater engineers (Ex 7), the amended civil plans (Ex K) and relevant conditions of consent.
• Clause 6.11 of BLEP 2021 provides that consent must not be granted unless the consent authority is satisfied that essential services are available to the development or will be made available when required. On the basis of the existing use of the site and the proposed plans, I am satisfied that essential services are available to the site.

1. I note that with the exception of the acoustic conditions as outlined above, all other conditions have been agreed by the parties.

Final Orders

1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to DA/2023/343 for the construction of a two storey centre based child care facility for 90 children with semi-basement parking for 14 spaces, bicycle parking, landscaping and site works at 1-3 Oriental Street, Bexley (Lots 36 & 37 in DP 5216), subject to the conditions contained at Annexure A. 3. Exhibits A, B, C, K, L, M, N, O are retained, and all other exhibits are returned.

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