Zaki v City of Parramatta Council

The proposal

1. The proposal before the Court is outlined as follows: 1. Demolition of existing dwelling house, removal of certain existing trees, tennis court and ancillary on-site structures and earthworks 2. Construction and use of a child care centre of brick and composite construction with Colorbond roof, comprising: 1. Basement - parking with access from Mary Street, garbage room, pram storage. 2. Ground floor - reception area/lobby, Playroom No 1 for 20 children aged 0-2 years old, Playroom No 2 for 34 children aged 2-3 years, undercover play area adjacent to Playroom No 1 and partly undercover play area adjacent to Playroom No 2, two distinct outdoor play areas with shade sails, separate cot and nappy change room, storerooms, bathrooms and the like, a pedestrian pathway from Mary Street. 3. First floor - Playroom No 3 for 18 children aged 3-5 years, Playroom No 4 for 18 children aged 3-5 years with bathroom, outdoor play area, storerooms, bathrooms and the like, kitchen, staff room, office/meeting room, laundry. 1. The child care centre would accommodate 90 children, in the following age groups: 0-2 years - 20 children, 2-3 years -34 children and 3-5 years - 36 children. 2. Sixteen educators would be employed. There would also be two part time staff working between 10am to 2pm to cover breaks. 3. The use would operate: 7:00am until 6:00pm Monday to Friday.

Statutory framework

1. The site is located within the R2 Low Density zone under The Hills Local Environmental Plan 2019 (HLEP). The proposal is "permitted with consent" in this zone as a "centre-based child care facility". Adjoining land to the east, west and north is also in the R2 zone, with the park at the rear (south) zoned RE1 Public Recreation.
2. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP) applies. The SEPP triggers attention to: (1) the Child Care Planning Guideline 2017 (CCP Guideline), and (2) the Education and Care Services National Regulations (ECSN Regulations). Applicable provisions of the CCP Guideline are "matters for consideration" under cl 23 of the SEPP. The ECSN Regulations provide for non-discretionary development standards relating to indoor and outdoor space requirements under cl 25 of the SEPP. Clause 22 stipulates that, in instances where a proposal does not comply with these unencumbered indoor and outdoor space requirements (contained with ECSN Regulation 107 and 108, respectively), there is a need for concurrence from the Regulatory Authority (in this instance the Department of Education) prior to any approval. The particulars of this will be considered in the examination of evidence.
3. The Hills Development Control Plan 2012 (HDCP) is relevant but there are some limits to the application of development controls plans under cl 26 of the SEPP, with the CCP Guideline overriding local development control plans in regard to the matters that this "guideline" attends to. Under the SEPP, development control plan provisions relating building height, side and rear setbacks or car parking rates would still have effect. HDCP controls relating to parking and setbacks arise in evidence.

Site view and lay submissions

1. The proceedings commenced with a site view. The Court was able to hear an objecting submission from the property of an immediate neighbour to the west. The objectors, more generally, raised concerns about: amenity impact (visual impact of building massing ("three storeys" to the east due to site cross-fall), visual and acoustic privacy, loss of sunlight, loss of general amenity), parking and road safety especially for children, excessive number of children and tree removal. These concerns were each drawn into expert evidence.

Issues

1. There were thirteen headline items listed in Council's Amended Statement of Facts and Contentions (Ex 1). For this judgment, these items and the matters raised in lay submissions, can be grouped into four, sometimes related, issues as follows:

• Whether proposed arrangements for children in care are adequate
• Local character compatibility and amenity impacts
• Traffic and parking, which relates to both of the above
• Relationship with public reserve to the rear.

1. The experts providing evidence in regard to the issues are nominated below. Expert Expertise Evidence for J Wood Planning Applicant S Moodliar Planning Respondent S Gauld Acoustics Applicant R Haydon Acoustics Respondent K Hollyoak Traffic Applicant A Mousavi Traffic Respondent L Campbell Child care Applicant W Shepherd Child care Respondent G Muir Evacuation Applicant W Shepherd Evacuation Respondent

Provisioning for children in care

1. After modifications to the proposal, and mindful of certain inclusions in agreed conditions of consent (without prejudice on Council's part), the issues on this topic are whether the proposal provides adequate: 1. unencumbered indoor space, 2. unencumbered outdoor space, and 3. storage.

Unencumbered indoor space

1. ECSN Regulation 107 (Regulation 107) is reproduced, relevantly, as follows: 107 Space requirements - indoor space … (2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 3.25 square metres of unencumbered indoor space. Penalty: $2000. (3) In calculating the area of unencumbered indoor space - (a) the following areas are to be excluded - (i) any passageway or thoroughfare (including door swings); (ii) any toilet and hygiene facilities; (iii) any nappy changing area or area for preparing bottles; (iv) any area permanently set aside for the use or storage of cots; (v) any area permanently set aside for storage; (vi) any area or room for staff or administration; (vii) any other space that is not suitable for children; (b) the area of a kitchen is to be excluded, unless the kitchen is primarily to be used by children as part of an educational program provided by the service. (4) The area of a verandah may be included in calculating the area of indoor space only with the written approval of the Regulatory Authority. (5) A verandah that is included in calculating the area of outdoor space cannot be included in calculating the area of indoor space.

Evidence

1. The architectural plans before the Court were tendered into evidence as Ex S. The planning experts acknowledged the calculations for internal play areas shown in these architectural plans (Ex S at DA 10 Rev H), taking different views on their acceptability. The experts summarised the relevant content included in the plans, as follows, linking to Regulation 107's requirement for 3.25m2 of unencumbered indoor space (Ex 13, par 4): "- Playroom 1: 66.2m2 for 20 children, equating to 3.31m2 per child. - Playroom 2: 110.9m2 for 34 children, equating to 3.26m2 per child. - Playroom 3: 60.2m2 for 18 children, equating to 3.34m2 per child. - Playroom 4: 63.7m2 for 18 children, equating to 3.53m2 per child. - Total: 301m2 and when using 3.25m2 per child this equates to 92.6 children".
2. Mr Wood agreed with the calculations (as set out in the architectural plans), and believed this demonstrated that the proposal meets unencumbered indoor space requirements, both on a room-by-room basis (including Playroom 2 which would fall just within the 3.25m2 per child requirement), and for the child care facility overall.
3. Mr Moodliar disagreed on three main grounds: 1. insufficient discounting for "any passageway or thoroughfare (including door swings)" (see reg 107(3)(a)(i)), 2. insufficient discounting for "… area for preparing bottles" (reg 107(3)(a)(iii)) in particular area for staff to stand while doing so at the bench where this would occur, and 3. unreasonable to claim conformance with the 3.25m2 per child control under reg 107 when individual playrooms do not comply (ie even if there is overall compliance).
4. Mr Moodliar found that Playroom 1 provided 61.5m2 of unencumbered space, Playroom 2 - 107.3m2, Playroom 3 - 56.1m2, Playroom 4 - 58.2m2 (Ex par 4). In turn, he concluded that each of the playrooms had insufficient unencumbered space for the number of children proposed to be accommodated.
5. Mr Moodliar included a greater area for doorway thoroughfares than that included by Mr Wood, Mr Moodliar excluded areas (of some 1m2) adjacent to sliding doors and entryways to storage areas as passageway or thoroughfare areas, and indicated (Ex 11 par 13): "Page 24 of the (CCP Guideline) requires that all unencumbered indoor space must be provided as secure area for children. In my opinion, areas outside any door opening/sliding door is not suitable or secure for children and must be excluded from calculating unencumbered space."
6. Mr Wood only excluded door swings. He also referenced p 24 of the CCP Guideline which included a diagram (Figure 1) which he believed suggested only door swing areas should be excluded. Mr Wood indicated the diagram does not show excluded area in front of the sliding doors otherwise shown in the diagram. Mr Wood believed these areas in front of sliding doors internal to the playrooms were not thoroughfares and were suitable for inclusion as unencumbered space.
7. Council argued that Mr Wood's use of Figure 1 of the CCP Guideline, for these purposes, was unreasonable as the figure was concerned with the specific topic of inclusion of verandahs as indoor space, rather than what should or should not be included under reg 107(3)(a)(i).
8. Mr Wood believed that exclusion of the bench space for preparing bottles was sufficient whereas Mr Moodliar believed it was necessary to also include an area for staff to stand. While Mr Moodliar believed it made general sense for individual playrooms to meet the 3.25m² per child requirement.

Further legalities

1. There were quite considerable legal submissions in regard to the legal setting and the individual positions taken by the experts on this topic. Council drew out the points of distinction and the relationship between the National Regulations and planning law in New South Wales. It was indicated that the National regulations are not enacted under the EPA Act and thus have only an indirect application in the evaluation of development applications, that is, through the SEPP and the CCP Guideline, and potentially through public interest considerations under s 4.15 of the EPA Act.
2. Having regard to cl 22(1) of the SEPP, and as I understand the setting mindful of submissions from both parties, there is a need for an objective determination by the Court as to whether the proposal complies with Regulation 107 in relation to unencumbered indoor space requirements. If it is determined there is compliance then there is no requirement for concurrence of the Department of Education, and under cl 25(2)(b)(i) of the SEPP the nondiscretionary development standard relating to indoor space has been met. If it is determined the application does not comply with Regulation 107, under cl 22 there would be a requirement for concurrence.
3. Council had written to the Department of Education making submissions that in this instance the proposal did not comply with Regulation 107, essentially for the reasons indicated above in Mr Moodliar's evidence. The response from the Department of Education (letter dated 11 October 2019, Ex 1 Tab 12) is reproduced in part below: "I note the concerns raised around the unencumbered indoor and outdoor space calculations provided by the architect. Additionally I acknowledge that council have conducted their own calculations and have determined the actual amount of unencumbered indoor and outdoor space to be 652.4m2 and 323.2m2 respectively. Following review of the development application, it has been identified there is no simulated outdoor or indoor space. Therefore, there is no requirement for concurrence on this application. This decision is based on the plans provided on 20 September 2019, including the calculations provided by the Applicant, and the stipulation that the space meets the requirements of the National Regulations and The Department of Planning and Environment's Child Care Planning Guideline at the time of completion. Service approval, any relevant waivers and the number of children allowed will be determined on the final fit out and completion of the space."
4. I have some difficulties with this correspondence. First it could be read that, at least in this instance, it is the presence, or otherwise, of "simulated outdoor or indoor space" which drives a determination on whether concurrence is required. It is not clear to me where this point is coming from. While there is a statement that "there is no requirement for concurrence", I also see an open-endedness to the advice. There is a suggestion that the final number of children for which a license will be secured is a matter for further investigation after completion of the facility, when detailed measurements could be undertaken based on the construction of the premises itself.

Finding

1. There were submissions from the parties in regard to the proper interpretation of "unencumbered indoor space". Council referenced the Macquarie Dictionary definition of "thoroughfare", relevantly, as follows (Respondent's Outline of Submissions dated 17 March 2021 (ROS), par 28): "a passage or way through: no thoroughfare".
2. Council indicated the purpose of excluding thoroughfares "was to exclude space that is not usable by children because it is to be used to pass through". It was incorrect of the Applicant to not count areas around sliding doors as a thoroughfare even though they are used to pass through. Reference was made to the "inclusive language" of the regulation which indicates that a thoroughfare "includes" door swings, by its language not limiting thoroughfares only to door swings.
3. I prefer the position argued by the Applicant. Reference was made (Applicant's Reply Outline of Submissions (AROS) par 24) to Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41 where at [18] Lloyd J said: "I find the competing submissions nicely balanced. It must be remembered, however, that the Policy is subordinate legislation and not drafted with the particularity or specificity of a statute: it should not be construed in a strict or over-technical way but rather in a practical, reasonable and commonsense way: Newcastle City Council v Kermir Pty Ltd (1989) 69 LGRA 289 at 294; Katoomba Gospel Trust v Blue Mountains City Council (1993) 130 LGERA 266 at 279."
4. In turn, the Applicant submitted that (ibid par 25): "The ordinary meaning of a throughfare [sic] is a route between places. A passageway is ordinarily an enclose [sic] route. The indoor play rooms are not thoroughfares or passageways. Rather the indoor play rooms are places to which throughfares [sic] or passageways lead. It would be a different situation if children (who are not allocated to the indoor play room) had to pass through the indoor play room to access another space. That would constitute a thoroughfare. The corridors that lead from the non play areas to the play areas are passageways. A practical approach to the interpretation of "thoroughfares" and "passageways" in Regulation 107 has been adopted by Mr Wood."
5. Following on from this, what I see to be, practical logic, I believe the areas within the individual playrooms and outdoor areas can be considered as individual "places" in their own right, notwithstanding the fact that they include sliding doors linking to outdoor play areas. Here I note that these outdoor play areas are designated for the use of the same children allocated to the associated indoor playrooms (I note the time-based sharing of Outdoor Play Area 3). I note that these sliding doors would sometimes be open and become part of the free play space. This means that I am more convinced of Mr Woods evidence than Mr Moodliar on this point. That is, that the area around the sliding doors are not reasonably seen as thoroughfares or passageways. Similarly, I do not see it as reasonable to exclude areas near benches or cupboards from play space given the informality of play and learning that can be expected of playrooms of this kind. Therefore I believe the proposal has met the non-discretionary development standard relating to indoor space at cl 25(2)(b)(i) of the SEPP.
6. Mindful of [26], I note that it is possible that when undertaking final licensing the Department of Education may disagree with my conclusions, either due to the detail of construction changes, or a different interpretation of exclusions relating to passageways, thoroughfares or otherwise. I am satisfied that the potential concern relating to, what is in effect, a misalignment between planning and childcare legislation can be addressed through the wording of conditions of consent. In this instance the agreed wording in the draft conditions (Condition 131) prepared by the parties (without prejudice on Council's part) nominates a maximum number of children under care. This would mean that even if final licensing were to be given for a lesser number of children this would not be inconsistent with the development consent.

Unencumbered outdoor space

1. ECSN Regulation 108 (Regulation 108) is reproduced, relevantly, as follows: 108 Space requirements - outdoor space … (2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space. Penalty: $2000. (3) In calculating the area of unencumbered outdoor space required, the following areas are to be excluded - (a) any pathway or thoroughfare, except where used by children as part of the education and care program; (b) any car parking area; (c) any storage shed or other storage area; (d) any other space that is not suitable for children. (4) A verandah that is included in calculating the area of indoor space cannot be included in calculating the area of outdoor space. (5) An area of unencumbered indoor space may be included in calculating the outdoor space of a service that provides education and care to children over preschool age if - (a) the Regulatory Authority has given written approval; and (b) that indoor space has not been included in calculating the indoor space under regulation 107.
2. The key argument can be summarised as follows.
3. Council contends that the proposal fails to provide the required 7m² of unencumbered outdoor play space for children designated to play in Outdoor Play Areas 1 and 3. Mr Moodliar's evidence is that:

• Outdoor Play Area 1 provides 137.5m2 of unencumbered outdoor space insufficient for the allocated 20 children (at 7m2 per child, 140m2 would be provided)
• Outdoor Play Area 2 provides 396.5m2 of unencumbered outdoor space more than sufficient for the allocated 34 children (at 7m2 per child, 238m2 would be provided)
• Outdoor Play Area 3 (the shared area, upstairs, used at staggered times by two groups of 18 children) provides 124.2m2 of unencumbered outdoor space insufficient for 18 children (at 7m2 per child 126m2 would be provided.

1. The Applicant argues that Mr Moodliar's approach is incorrect and that the proposal complies with Regulation 108 as it provides more than the required 630m2 for 90 children, cumulative across the centre. There is also a dispute in regard to the calculations which, similar to the position described with respect to indoor areas, exclude certain areas near doorways which the Applicant believes should be included.
2. Council referenced Jagot J's findings in Matic v Mid-Western Regional Council [2008] NSWLEC 113 ([8] inter alia): "8 Legislative intent, however, is not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable. Intent is to be objectively determined. It is manifested "by the use of language" in the document to be construed (Wilson v Anderson and Others (2002) 213 CLR 401 at [8]). Accordingly: "…it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred (Singh v The Commonwealth and Another (2004) 222 CLR 322 at [19]).""
3. For Council, an "objective determination" would find the required 7m² of unencumbered outdoor space should be available to each particular child in the outdoor area allocated for them. In regard to Outdoor Play Area 3, and the staggering of use of this space between the children occupying Indoor Play Areas 3 and 4 (Ex 13 par 43), Council observed that Regulation 108 "says nothing of the space only needing to be available for children who will use it at a particular point in time" (Respondent's Outline of Closing Submissions (ROCS), par 116).
4. I am satisfied that in this instance there is sufficient unencumbered outdoor space on merits. First, I would acknowledge a logic to Council's position, which argues that the standard is about ensuring there is sufficient opportunity for outdoor space for individual children, and the Applicant's position, when taken to an extreme, means that certain of the children could be significantly deprived in terms of outdoor space access while others have an excess area.
5. While there may be other means of addressing the problem, I can say that it would be a poor outcome if it were the case that a proposal could achieve the requirements of a non-discretionary development standard, relating to say outdoor space, when some of the children, in a practical sense, had significantly deficient access to that outdoor space. However, this is not the threat here. Outdoor Play Areas 1 and 3 are very close to the 7m2 per child standard, if not reaching it. Outdoor Play Area 2 is of course much larger than the standard. In addition, the child care planning experts agreed that their concerns in regard to the quality of the open space areas had been addressed (Ex 12, par 23).
6. It also seems to me that in this instance a merits determination of the question of unencumbered outdoor space is sufficient. That is to say, even if, correctly constructed, the proposal did embody a non-compliance with Regulation 108, the requirements to advise the Department of Education, in regard to cl 22 of the SEPP, have been met and there is power to grant approval without concurrence under s 4.13(11) of the EPA Act (ROCS, par 34-35).

Storage

1. In consideration of the evidence and the submissions I am not of the view that there is a need for the required storage (under Part 4.1 of CCPG) to be allocated within the particular play areas used by the individual children. The guideline makes plain that storage can be located in appropriate areas within a child care facility. It makes sense that some of the storage be handy for immediate use by children, but not all necessarily. The proposal is appropriate in that regard.

Local character compatibility (including bulk and scale) and amenity impacts

Character compatibility

1. Council contends that the proposal is inconsistent and incompatible with the character of the surrounding area. There are two main points to this: (1) bulk and scale of the building, with basement parking presenting as a "third storey", and (2) inadequate landscaped area and deep soil.

Policy

1. The provisions of HLEP have relevance here, including the zone objectives, as follows: • 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 maintain the existing low density residential character of the area.
2. There is agreement that the proposal complies with HLEP's building height provisions. There is no applicable floor space ratio (FSR) control. According to Mr Wood, FSR is considered a "key regulator of bulk and scale" (Ex 11, par 35). Reference was made in evidence to draft Parramatta LEP 2020 which, when placed on exhibition, adopted a 0.5:1 FSR control for the site. Mr Moodliar indicated in oral evidence that while the adoption of this control was likely for the site environs it would not be considered as certain. I note the plans indicate an FSR of 0.41:1 for the proposal (Ex S, Drawing cover sheet).
3. In submissions, each of the parties referenced the CCP Guideline in regard to applicable policy relating to this contention. The Applicant referred to the "design quality principles" at Part 2 of the CCP Guideline, in particular principle 2 which related to "built form" and provided that "good design achieves a scale, bulk and height appropriate to existing or desired future character."
4. Council referred to the "matters for consideration" at Part 3 of the CCP Guideline and in particular item C5: "Objective: To ensure that the child care facility is compatible with the local character and surrounding streetscape. C5 The proposed development should: contribute to the local area by being designed in character with the locality and existing streetscape reflect the predominant form of surrounding land uses, particularly in low density residential areas recognise predominant streetscape qualities, such as building form, scale, materials and colours include design and architectural treatments that respond to and integrate with the existing streetscape use landscaping to positively contribute to the streetscape and neighbouring amenity integrate car parking into the building and site landscaping design in residential areas."
5. Reference is made to some of the provisions of HDCP in the examination of evidence below.

Evidence

1. Mr Moodliar believes the proposal was out of character and incompatible with the local character and surrounding streetscape (Ex 11 pars 31-32): "31. The 3-storey built form is not suitable for this site as it would have a significant impact on local amenity and is at odds with the third zone objective of the R2 Low Density Residential zone within the Parramatta (former The Hills) LEP 2012. 32. … the existing character of Mary Street is predominantly one-and-two-storey dwelling houses and low density villa-style housing, noting that The Hills DCP 2012 and the Draft Parramatta LEP 2020 anticipates that child care centres as with any dwelling house will, in fact, be limited to 2 storeys."
2. Mr Moodliar refers to a number of controls within HDCP that seem to be relevant indicators in regard to bulk and scale. In regard to site coverage and building footprint, Mr Moodliar finds: "67. The current and applicable controls for site coverage and building footprint are set out under (HDCP). I confirm the proposed site has a total area of 1325m2 permitting a building footprint of 795m2. The proposed development proposes a site coverage of 960.3m2 which is 72.5%. The non-compliance with the maximum 60% site coverage requirement results in a built form that is out of scale. 68. …I confirm the maximum permitted site coverage equates to 795m2, of which 45% (357.7m2) is permitted to be built upon. The building footprint of 422.4m2 is 51 .1 % of the maximum permitted site coverage, resulting in an overdevelopment of the site."
3. Mr Moodliar also found the proposal did not comply with the minimum landscaped area for residential development as required under Part B2 section 2.14.5 of HDCP. The minimum landscaped or naturally vegetated area for residential development is 40% of the site area (HDCP Part B Section 2 clause 2.14.5 (b)). Mr Moodliar also noted that a minimum 50% landscaped area is required for dual occupancy development. Mr Wood contested the application of this control because a child care centre is not "residential development". I note the commentary in ROCS (par 47) that the term landscaped area is not defined in the glossary to HDCP. But that the Dictionary to HLEP defines landscaped area to mean: "a part of the site used for growing plants, grasses and trees but does not include any building, structure or hard paved area".
4. There were calculations of landscaped area in the architectural drawings (Ex S, Drawing DA 15). The calculations included areas above the basement structure as landscaped area. Mr Woods indicated such areas provided for 300mm-700mm of available soil and were appropriately included in such calculations as there was a practical possibility of growing plants in this soil depth. Mr Wood's original position was that there was a little over 40% of landscaped area under the scheme. This question was taken up in the examination of the evidence of Mr Wood where, under cross examination, he agreed that certain areas that he had included in his landscaped area calculations should not be, as they did not meet the HLEP definition. His revised calculation suggested a figure of 34.4% (Ex Y).
5. More generally, Mr Wood pointed to compliance with the height, setback (and suggested draft FSR control of 0.5:1), and argued that the proposal presents as two storeys rather than three, which was reasonable in the setting. He noted that 15 Mary Street was a two storey building about 30m long. The articulated front façade, brickwork and window placements and the breaking up of the roof pitch were all seem to bring a residential feel. Landscaping was also seen to be more positive and contributory than generally evident in the streetscape setting (Ex 11, par 35-52).
6. A further concern was in regard to fencing. Boundary fencing heights were dictated by acoustic requirements. Mr Moodliar refers to Part 2.15 (g) B2 of HDCP 2012 which specifies the maximum height of the side and rear boundary fences of 1.8m.
7. There was considerable particularisation of detailed site levels and fencing requirements, some of which evolved in the course of the hearing. Nonetheless there was disagreement between the experts on at least some of the particulars of the proposed fencing.
8. Mr Moodliar's evidence is that (Ex 16, par 25-28): "25. …The proposal relies on side boundary fencing up to 2.6m and rear boundary fencing up to 2.3m (including the height of the retaining walls). … 26. The western boundary acoustic fence and retaining wall is between 1.8m-2.3m above the existing ground level as viewed from the adjoining dwellings at No.28-30 Mary Street, Northmead. The proposed western boundary acoustic fence and retaining wall structure will be up to 550mm above the existing boundary fence. 27. The eastern boundary acoustic fence and retaining wall is between 2.2m-2.57m above the existing ground level as viewed from the adjoining dwelling at No.34 Mary Street, Northmead. There is no boundary fence extending the length of the eastern adjoining property. 28. Opportunities to lower the side boundary fences to 1.8m has not been explored in any of the amendments which would be a more acceptable fence height in the R2 residential setting."
9. Mr Woods evidence is that as the development to the west "sits higher than the subject site", the fencing would not be as impactful as otherwise might have been expected. Mr Woods refers to drawing DA08bii (Ex S), which compares the proposed fencing to the existing fence line at 28-30 Mary Street. According to this drawing the proposed fencing would be of a similar height to the existing up until a point about halfway along the property boundary (it is more precisely referenced as in line with the skylight over the covered portion of the transition area to Playroom 1). This southern "half" of the proposed fencing would be considerably higher than the neighbouring fencing, up to about 500mm. According to Mr Wood (Ex 11/3 par 12): "This area aligns with the back of the garage of the adjoining villa, and then a parking area and some common property of the adjoining villas- reflected in the aerial photograph over the page and shown in Blue. Therefore the interface is not to primary POS or living areas of the adjoining villas but to parking areas and common areas."

Built form and landscaping

1. The applicable R2 zone objectives, a matter I need to take into consideration, seek to enable land uses such as child care centres (that provide facilities or services to meet the day to day needs of residents), while also seeking to maintain the existing low density character. The CCP Guideline, a further matter for consideration, is also seeking to ensure compatibility with local character including the existing streetscape. When reviewing the CCP Guideline, I note the relevant considerations here include that the proposal reflect the predominant built form and recognising the scale, materials and colours in the streetscape. There is also concern that bulk and height are appropriate to existing or desired future character.
2. It is clear to me that the proposal will present as a quite large building in the street, it will not be the same as other nearby buildings, but I accept Mr Wood's evidence that there is quite a diversity of buildings including other quite large examples nearby. The proximity of The Hills School and Northmead Park add to the contextual diversity.
3. While the building is large, the proposal has been designed with quite a high degree of responsiveness to the local low density character. Here I accept Mr Wood's evidence in regard to the broken roof form, façade articulation, materials and landscaping. Mr Moodliar is also correct that the open driveway ramp into the basement, readily visible for one walking by, is a negative feature in visual terms. The kind of massing that would present, when the eye picks up the basement and building above, is not "reflective" of the predominant built form. However, the taking into account of the driveway ramp and basement, and thus a three storey presentation, in a visual sense, would not be the predominant visual experience of the development. The building would be presenting as a quite large, architecturally responsive, child care centre of modern heritage, as a facility and service to the community. The proposed landscaping would practically soften the built form itself.
4. I would note here that there had been a contention in regard to the proposed landscape treatment. However, with the amended landscape plan (Ex S, Tab C), landscape experts expressed satisfaction with the landscape scheme proposed for the development.
5. I am satisfied with the built form and landscaping in regard to character, bulk and scale.

Landscaped area

1. I now turn to the question of whether the proposed landscaped area is satisfactory. The 40% landscaped area control within HDCP does apply to residential development (ie rather than child care centres). In turn the objectives of this landscaped area control are not all aligned with the proposed child care centre use. These objectives (HDCP Part B Section 2 clause 2.14.5) are reasonably seen as being concerned with: (1) the opportunity for landscaping as an amenity and character feature in the local built environment and (2) the adequacy of open space areas for what might be thought of as active and passive recreational enjoyment by occupants of residences including play areas for children (eg subclauses (ix) and (xi)).
2. In regard the first concern (ie the landscaped area control's concern with local character and the built environment), I think it reasonably to accept the position of the landscape experts that the proposal is satisfactory in that regard. In regard to the second concern, it is the case that there are different parameters involved in providing adequate play areas for children in child care centres, and I have already found the proposal satisfactory in that regard, in quantitative terms. The child care experts indicated satisfaction in regard to the qualitative aspects of the outdoor play areas previously raised as concerns (Ex 12 par 23).

Fencing

1. Turning to boundary fencing, I note the objective behind the relevant DCP control is (HDCP Part B, Section 2, clause 2.15 (g)): "To ensure that fencing is of a high visual quality, compliments the character of the area and is compatible with the proposed development."
2. There has been some detailed work in regard to fencing during the course of the hearing, with additional detailed surveys and more precise information on the relationship between the proposed fencing, existing fencing and property boundaries (Ex Z); and certain limited structural information to support the boundary fencing solutions proposed (Ex BB). Registered surveyors have verified certain particulars of this material (Ex CC).
3. My concern with fencing is principally in regard to how it might be perceived by neighbours. The fencing as proposed can be separated into three categories. According to Ex S Drawings 07aii and 08bii, a certain area of the fencing would either meet the 1.8m control highlighted by Mr Moodliar, not exceed the height of existing closed structures or the like along the boundary or more or less correspond with existing fencing heights. I do not see these areas of fencing as of concern. A second category is a length of fencing along the western boundary which would be about 500mm above the existing fencing, with the third category certain fencing along the eastern boundary which is either new or is significantly taller than existing fencing.
4. What I am calling the second category of fencing, occupies a little less than half of the site's western boundary on the southern end. The key area of concern is where the taller fencing would be adjacent to private open space within the villa complex at 28-30 Mary Street. I agree with the part of Mr Wood's evidence that suggests the length of this taller fencing adjacent to the car parking area of the villas would not bring significant adverse effect, as this is a non-sensitive area. But I am also satisfied that the length of this taller fencing that would correspond with the private open space of this villa is satisfactory. This is because of the evidence that there is already a somewhat makeshift screening arrangement above the existing fence in this area.
5. I also prefer Mr Wood's evidence in regard to the taller fencing along the eastern boundary, recognising that it would also mainly be located in non-sensitive areas, adjacent to a quite large existing outbuilding and towards the southernmost corner of the property. An unfenced side boundary towards the front of the property, up to the building line, would also have taller fencing (perceived as 2.25m in height (Ex S, Drawing 07aii)). This section of the taller fencing would also not be in a sensitive location for residents, but it would be apparent in the street for a certain relatively short length raising questions of whether it meets the relevant HDCP objective and "compliments the character of the area". I am satisfied in that regard noting this as one of the development characteristics that would present as a little different but be associated with the use of the premises as one concerned with providing for the day to day needs of the local community (ie for the care of children) and acceptable in that regard.

Amenity

1. A number of the concerns raised by objectors in relation to the character including bulk and scale of the building (considered above), were related to amenity implications. There are three other matters I need to attend to directly.
2. The first is in regard to the visual effect of the building massing, and the loss of sightlines, as currently enjoyed in the private open space (to the rear or east) of the north-easternmost villa within 28-30 Mary Street. An area of outdoor space here has a pleasant outlook towards Mary Street, which the Court had the opportunity to inspect during the site visit.
3. The building massing and roof of the proposal, as viewed from this area, would stop around 600mm short of the building line adopted by this villa (Ex S, Drawings DA02 and DA06i), the fence perceived as 1.8m high from the west, similar to existing (Ex S, Drawing 9c, Details 8 and 9) would extend to the front building line. There would be a two storey presentation, but the proposal readily meets HLEP's building height control in this critical area. See Ex S, Drawing DA07aii.
4. It is unfortunate for this neighbour that the existing amenity, by way of outlook somewhat across the boundary of the site, to trees in the near and mid distance, available in part due to the setback of the existing building, would be reduced with the proposal. But it would not be reasonable to expect retention of this viewline, given the proposal's general compliance with the relevant setback and height controls here.
5. The second point of attention is geotechnical. Objecting submissions raised concerns in regard to the proposed excavation and potential effects on the underground water table, and potential for water to not be able to get away naturally due to the basement construction. Previous experiences were cited where water table had been identified on nearby property. In response to the objectors, the Applicant provided advice indicating that boring had been undertaken, and the results analysed by geotechnical experts Ei Australia. The advice (Ex X), identified the water table as sufficiently below the level of excavation to address this concern.
6. The third point of attention relates to overshadowing. I accept the advice of the planning experts as provided in their expert report (Ex 11, par 126), that adjoining properties would receive direct sunlight to at least 50% of their private open space for a minimum 4 hours between 9am and 3pm, mid-winter, complying with HDCP Part B, Section 2, Part 2.14.10. There is no capacity to apply more stringent standards under s 4.15(3A) of the EPA Act.

Traffic, parking and safety

1. Council contends that the application does not provide adequate car parking. The proposal is for 23 on-site parking spaces and Council says this is deficient by nine spaces (ROCS, par 72).

Policy

1. Section 3.8 of the CCP Guideline is concerned with parking, among other things. The relevant objectives and controls are as follows: "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."
2. This section of the CCP Guideline then goes on to nominate parking requirements in settings where there is no Council development control plan specifying rates (there are controls in place for this setting - see below). Parameters for the consideration of reduction in car parking are also nominated as follows: "• the proposal is an adaptive re-use of a heritage item • the site is in a B8 Metropolitan Zone or other high density business or residential zone • the site is in proximity to high frequency and well connected public transport • the site is co-located or in proximity to other uses where parking is appropriately provided (for example business centres, schools, public open space, car parks) • there is sufficient on street parking available at appropriate times within proximity of the site."
3. The applicable parking controls are at Part C of HDCP. The "overarching objectives for parking" are: "(i) To provide guidelines aimed at improving overall traffic management and safety. (ii) To ensure satisfactory access, parking provisions, circulation and goods loading and delivery facilities are provided within developments. (iii) To ensure the efficient flow of traffic through car parks to minimise the potential for pedestrian and vehicle conflict. (iv) To set out Council's planning and engineering standards for parking in the Shire. (v) To encourage the use of more ecologically sustainable forms of transport such as bicycles. (vi) To ensure that all parking provided by development relates to the site's environmental conditions."
4. The objective in regard to "general parking requirements" is: "(i) To provide sufficient parking that is convenient for the use of residents, employees and visitors of the development."
5. The rate for child care facilities under HDCP is 1 space per employee plus 1 space per 6 children for visitors and/or parent parking (Part C1 Section 2.1.1).

Evidence

1. The major point of difference in the evidence was whether it was reasonable to apply the HDCP controls in this instance. Mr Hollyoak, for the Applicant, indicated that the HDCP requirements were excessive. Three principal lines of evidence were posited. The first related to empirical surveys, published in 2015 and undertaken under the auspices of Roads and Maritime Service (RMS), which concluded 1 space per 6 children (for centres with 70 to 100 children) would be adequate (Ex 10, p 4). Mr Hollyoak indicates this standard would result in the need for 15 spaces (Mr Hollyoak sees the need for one space per employee to be particularly onerous). The second argument compared the controls in HDCP to several other development control plans, which would require less on-site parking (with a rate of 1 space per 4 children commonly applied with which the proposal complied). Parramatta DCP 2011 which applies in quite close proximity to the site applies this rate. Third, Mr Hollyoak referred to parking availability surveys commissioned by him which found "… that there were 102 on-street parking spaces within close vicinity (i.e. 200m west and 150m north) of the proposed child care and even at the busiest drop off time (845am) and pick up time (3pm) there were at least 56 and 45 vacant parking spaces available."
2. Mr Mousavi relied on the HDCP controls, noting the fact that the CCP Guideline and the RMS Guide to Traffic Generating Development (2002), both acceded to local council parking codes (Ex 11, p 7). He was also concerned that overuse of on-street parking would raise pedestrian safety concerns and also adversely affect residential amenity (ibid).

Finding

1. Clearly, parking requirements would be expected to be higher in areas with higher car dependence than areas, for example, enjoying high-quality public transport access. It is clear from Mr Hollyoak's research that HDCP has a relatively high parking requirement for child care centres, it is also reasonably clear that this site does not enjoy the highest quality public transport access (the nearest bus stop on Windsor Road around 500m away).
2. There was no empirical evidence provided to support the significantly higher than average figure in HDCP, with Mr Hollyoak indicating he made efforts to determine if there was any background research to it (Ex 10 p 4). It would be wrong to expect councils to have such evidence available for all of their policy settings. Nonetheless, the fact of the parking requirement discrepancy, with lower rates applied even in quite nearby settings under the Parramatta DCP (Ex 10, p 4) reduces the weight that might be applied to the HDCP numerical standard.
3. Under s 4.15(3A) of the EPA Act, there is a need to be flexible in the application of development control plan standards, and where an application does not comply with such standards to allow reasonable alternative solutions that achieve the related objectives. I note the Council's emphasis upon "convenient" parking mindful of the general parking requirements objective. But I also note the overarching objectives for parking seek to ensure "satisfactory" parking and the encouragement of the use of more ecologically sustainable forms of transport such as bicycles" [80].
4. In this instance, I am not convinced by Mr Mousavi's evidence that there may be avoidable pedestrian safety concerns due to more parents (and children) parking in the street, and thus needing to negotiate the public road reserve. I acknowledge here the evidence of the 40km/hr zone in the site vicinity during school time peaks and the fact that the more distant on-street parking spaces have the better sight lines.
5. In this instance, the relatively recent evidence on parking demand (RMS) suggesting lower parking rates, the fact that the proposal would satisfy even the controls applying nearby under Parramatta DCP and the empirical evidence that there is reasonable on-street parking draws me to the conclusion that strict compliance with HDCP parking controls would be unreasonable, and that the proposed parking arrangements are satisfactory.

Relationship with public reserve to the rear

1. The three points of relevance here are: emergency evacuation configuration, use of public reserve area for evacuation and rear fence treatment, noting Council is owner of the public reserve.

Emergency evacuation configuration

1. While Council expects emergency egress to be to Mary Street, the Applicant proposed two egress points for emergency evacuation in its emergency evacuation plan (Ex EE): Exit 1 to Mary Street at the front of the site, and Exit 2 to Northmead Reserve to the immediate rear of the site. The Applicant advised that there was a capacity for either of the exits to be used by those attending the site, but that there was a sense in making Exit 2 available, particularly for those for whom access to the rear (and the public reserve) was more convenient (eg users of the outdoor play areas). The proposed assembly point at the amenities shed in Northmead Reserve was agreed by the access experts as acceptable (Ex 15 p 3), and it was agreed that there was opportunity for an acceptable path of travel from the child care centre to that location including for those in wheelchairs and the like (Ex 15 p 3-5). As I understand it the pathway from the rear of the property to the hardstand parking area within the reserve, as proposed in the application, aligns with the findings of the access experts. The key merits concerns raised by Council were (ROCS, par 64): 1. Lack of surety of unobstructed access (nothing to preclude vehicles parking in front of the access way (gate) between child care centre and the reserve). 2. Council can close the reserve from time to time (wet weather and maintenance is cited). 3. The applicable Plan of Management ("Hills Sportsgrounds: Generic Plan of Management" (Ex 4, henceforth PoM)), prepared under the terms of Part 2, Division 2 of the Local Government Act 1993 (LG Act) provides for licensing of recurring uses of Northmead Reserve (limited to 30 years). While casual use can be "considered" without a license, Council does not consider this suitable for a recurring use such as for emergency preparation drills and for "permanent emergency access" for the child care centre. 4. Suitable lighting has not been demonstrated, noting the operating hours. 5. The access pathway or "ramp" (shown in Ex S, Drawing DA04ii) between the child care centre and the reserve would need to comply with Part 3.16 of the PoM.

Rear fence

1. The existing timber fence which forms the practical delineation between the site and Northmead Reserve is located well on the reserve, rather than on the boundary between the site and the reserve. The proposal would re-fence the rear of the site (ie at the property boundary) with an acoustic fence. There are two aspects to this issue. First, is in regard to the form of the fence, which I will deal with entirely now. The Applicant proposes, in part, that the fence treatment allow children to view out into the reserve. This was an agreed recommendation from the child care experts as a means of enhancing the children's experience while playing outdoors. Council's planning expert objected to this, out of a concern for security for the children (ie from those looking in). I prefer the opinion of the child care experts on this question mindful of their more applied experience.
2. The second aspect is in regard to legal questions (essentially the rights of the Applicant to be on the reserve and removing the encroaching fence) which I will deal with below in consideration of the other legal questions relating to use of the reserve.

Use of public reserve for evacuation point

1. Legal issues were also raised relating to access upon and the use of the reserve.

Consideration

1. As a general principle, it appears to me that allowing for emergency access from the rear of the child care centre out onto the Northmead Reserve, and for the gathering in this reserve during an emergency, is a sensible outcome all other things being equal. The reserve is only subject to Council's generic plan of management for sportsgrounds (ie rather than a site specific plan), but I would also note that based on the site inspection, and the material drawn to my attention during the proceedings, at this general level, there is nothing apparent to me that would suggest that this kind of emergency access provisioning is discordant with what might be seen as the otherwise good management of Northmead Reserve.
2. During the proceedings, Council drew attention to Part 3.16 of the PoM, concerned with works on the reserve by third parties, and the need for such works to be "consistent and permissible under the core objectives of the land category and relevant planning legislation" (Ex 4, p 16). The core objectives of land categorised as "Sportsgrounds", under the s 36F of the LG Act are as follows (ibid p 4): (a) To encourage, promote and facilitate recreational pursuits in the community involving organised and informal sporting activities and games, and (b) To ensure that the activities are managed having regard to any adverse impact on nearby residences.
3. While Part 3.16 is concerned with "works", these core objectives, and the PoM itself, have value in considering the broader use and management of the reserve (s 35 LG Act). It seems to be that the proposed emergency access is compatible with these objectives. So beyond the general principle, I can see nothing in the background planning setting for the reserve under the LG Act which might prevent its use for emergency access.
4. I now turn to the particular issues raised by Council. Firstly, I note that what is being sought in the proposal, relevantly, is development consent under the EPA Act. Consent is not sought for any necessary approvals under the LG Act for the works (ie removal of fence and construction of the ramp) or use (emergency access path of travel and assembly point), or for property rights. There is a recognition that LG Act approvals would still be required (draft Condition 18, 19), and that, were development consent to be granted, the Applicant would need to make the appropriate application to Council for the necessary property rights (eg lease, licence, easement or the like) to allow the use to be carried out.
5. A further point to note is that there is no owners consent for the proposed development on Northmead Reserve. However, under s 39(2) of the Land and Environment Court Act 1979, the Court has power to grant owner's consent for the lodgement of the development application to include emergency evacuation to Northmead Reserve, with child care centres a permissible use on the RE1 Public Recreation zoned land under HLEP.
6. It seems to me the issues raised by Council are insufficient to suggest the emergency access arrangements not form part of a development consent in this instance. It does not appear particularly likely that there would be parking in the vicinity of the gate during an emergency event, but the obvious answer would be to place a no parking sign at the appropriate location, similar in regard to lighting (where it seems quite clear this can occur while ensuring no nuisance to neighbours). It is true that sometimes reserves are closed for wet weather, maintenance and the like, but this is mostly concerned with the playing fields themselves and would be very rare to think emergency access would be denied for such purposes. I also acknowledge here the advice of the Applicant that there is still the opportunity to use the Mary Street exit should for some reason access be blocked to the rear for an unexpected reason (ACS, par 89(c)).
7. I see no reason why an approval of the application should not include the emergency access provisions as sought by the Applicant in regard to Northmead Reserve. It is appropriate in the circumstances for the Court to grant owner's consent in regard to the Applicant's application for use of Northmead Reserve for the purposes sought, and the ramp works.

Conditions

1. The parties provided separate sets of draft conditions (without prejudice on Council's part). Councils set became Ex 21 and the Applicant's set became Ex DD. There were three areas of dispute in regard to conditions, which the parties requested I adjudicate on, should a positive determination of the appeal be made.
2. Condition 7(i) would provide that demolition works are to be completed within a certain time period. Council indicated its policy provides for completion within five days but indicated it would agree to a period of 14 days. The Applicant sought a period of 21 days to account for "inclement weather and unexpected finds". It would seem to me good for neighbours if demolition were completed quickly. But it is reasonable to think that, all other things being equal, this would be the case for demolition contractors as well. I see a self-limiting aspect to the time taken for demolition, which would occasionally run into problems including in regard to weather or finds such as asbestos. The delay period is unknown but I am more comfortable with the Applicant's suggestion, which will be seen to be adopted in Annexure A.
3. Council would have Condition 124 as follows: "124. The windows and doors of the child care centre must remain open at all times when the child care centre is in use to ensure cross flow ventilation is available, subject to weather conditions. Reason: To minimise risks of cross infection to children"
4. The Applicant would add, in brackets, "subject to weather conditions".
5. There was considerable evidence, including having regard to Section 4.4 of the CCP Guideline, of the importance of natural ventilation and crossflow ventilation within the premises. The "reason" nominated for Condition 124 is relevant, among other factors. The Applicant pointed to times when conditions inside the building meant it was necessary to operate air-conditioning to either warm or cool the building. While I acknowledge this point, I am uncomfortable with the open-endedness to what is proposed by the Applicant here. When I view Section 4.4 of the CCP Guideline I note the general attention to wellbeing, but the emphasis is more on sustainability than public health, with the CCP Guideline prepared prior to the Covid pandemic. The Council approach is preferred which leaves flexibility as to the extent (ie amount) windows would be open during times when air conditioning is employed.
6. Condition 20 was proposed by the Applicant but not agreed by Council. It provides as follows: "Notwithstanding conditions 18 & 19, in the event the Council refuses to grant approval for the construction of the ramp referred to in condition 18(b) then the applicant shall not be required to construct that ramp."
7. Conditions 18 and 19 principally provide that the Applicant must obtain any necessary licence, lease, permission, approvals or authorisation required for use of Northmead Reserve in relation to emergency evacuation and construction of the access ramp between the rear of the site and the nearby hardstand within the reserve.
8. I understood Council's point to be that the evacuation expert had conferenced on the basis that a ramp was available in regard to accessibility and emergency evacuation. This point has been considered above at [91]. The condition would remove any ambiguity were authority to use Northmead Reserve not be forthcoming. I am satisfied with the condition as proposed by the Applicant.

Conclusions

1. On the basis of the above findings, the proposal adequately addresses the relevant issues and warrants conditional approval.

Orders

1. Accordingly, the Court orders that: 1. Owner's consent is granted with respect to the lodgement of the development application in regard to emergency evacuation to Northmead Reserve as particularised in the plans and documents referenced at Annexure A. 2. The appeal is upheld. 3. Development Application No. 876/2018 for demolition works, tree removal and construction of a two-storey child care centre for up to 90 children with basement car parking at 32 Mary Street Northmead, is approved subject to the conditions at Annexure A. 4. The exhibits are returned except for Exhibits 5, 21, A-G, J, L-N, S, T, V, W, Z, EE. …………………………… P Walsh Commissioner of the Court Annexure A (382377, pdf) Architecture Plans (8384804, pdf) Landscape Plans (26442579, pdf)

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: 19 May 2021