Abi-Khattar v City of Parramatta Council

[2024] NSWLEC 1601

Land and Environment Court

New South Wales

Medium Neutral Citation:

Abi-Khattar v City of Parramatta Council [2024] NSWLEC 1601

Hearing dates:

19 August 2024

Date of orders:

27 September 2024

Decision date:

27 September 2024

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to DA/900/2022 for demolition, and construction of a centre based childcare facility for 60 children with basement parking for 9 staff and under croft parking for 7 visitors, subject to the conditions contained at Annexure A.

(3) All exhibits are retained.

Catchwords:

APPEAL – development application – childcare centre – all contentions resolved

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 61

Parramatta Local Environmental Plan 2011, cll 4.3, 4.4, 6.1, 6.2

Parramatta Local Environmental Plan 2023, cl 1.8A

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 2.6, 2.7

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.25, 3.26, 3.27

Parramatta Local Environmental Plan 2011 cll 4.3, 4.4, 6.1, 6.2

Texts Cited:

NSW Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

Parramatta Development Control Plan 2011

Standards Australia, AS 2601-2001, July 2001

Category:

Principal judgment

Parties:

Albert Abi-Khattar (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
R O’Gorman–Hughes (Respondent)

Solicitors:
Madison Marcus (Applicant)
Holding Redlich (Respondent)

File Number(s):

2023/00182424

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal of development application DA/900/2022 for a centre based childcare facility to accommodate 67 children with ground and basement level carparking for 17 cars at Lot 5 in DP 205980, known as 32 Honiton Avenue, Carlingford.

2. At the date of lodgement of the Class 1 appeal (7 June 2023) the application had not been determined. However, post this date the matter was reported to Parramatta Local Planning Panel and was formally refused on 10 August 2023.

3. The proposed development, as amended, is for the demolition of existing structures, earthworks and construction of a part two-storey and part three-storey centre based childcare facility for 60 children with basement parking for 9 staff and under croft parking for 7 visitors.

4. Amendments made to the application during the appeal notably included a reduction in the number of child care places (from 67 to 60 places), architectural design amendments, amended landscape plans, provision of an updated evacuation plan and swept path analysis and the provision of other additional information.

The Council’s position and the outcome of the appeal

5. As a result of the amendments to the development application, the Council agrees that the contentions it raised on appeal have now been resolved, and that there are no contentions that remain outstanding that would warrant refusal of the development application.

6. Notwithstanding the Council’s position, I am required to carry out an assessment under s 4.15 of the EP&A Act to determine if it is appropriate and within the Court’s power to grant development consent. Section 4.15(1)(a) of the EP&A Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made by the local residents and the public interest.

7. For the reasons that are set out below, I accept the evidence of the experts and find that each of the contentions raised by the Council have been resolved by the amended plans and additional information submitted. I am also satisfied that the matters raised by the resident objectors have been adequately addressed through the amendments to the development application or are not substantive in the case. I find that the proposed development has acceptable arrangements in place to ensure that it does not have an adverse impact on traffic or on pedestrian safety. Further I find that there is adequate parking provided in an acceptable form and that the design of the proposed development, as amended, is acceptable in its context.

The site and the locality

8. The site is legally described as Lot 5 in DP 205980 and is known as 32 Honiton Avenue, Carlingford. It has three site frontages being located on the corner of Honiton Avenue to the south, Coleman Avenue to the east and Clover Close to the north. It has a site area of 1023 m² and a slope of approximately 5.87m falling from north to south towards the Honiton Avenue frontage. The site currently accommodates a two storey dwelling housing with in-ground swimming pool to be demolished.

9. The hearing commenced with a site inspection which included a viewing of all three site frontages and the form of adjacent development which comprises primarily two storey dwelling houses, dual occupancies and multi dwelling housing. The existing vehicular traffic environment was also observed including the intersection of Honiton Avenue and Coleman Avenue.

The planning framework

10. The site is zoned R2 Low Density Residential under Parramatta Local Environmental Plan 2011 (PLEP 2011) which continues to apply to the subject development application by virtue of the savings provision in cl 1.8A of Parramatta Local Environmental Plan 2023 (PLEP 2023). The proposed childcare centre is permissible with consent in the R2 zone and is consistent with the objectives of the zone including notably “to allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods”.

11. Clause 4.3 of PLEP 2011 establishes a maximum height of buildings development standard for the site of 9m. The proposed development complies with this development standard having a maximum height of 8.7m.

12. Clause 4.4 of PLEP 2011 established a maximum floor space ratio development standard for the site of 0.5:1. The proposed development similarly complies with this development standard having an FSR of 0.47:1.

13. 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.

14. 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).

15. 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.

16. An assessment against the relevant provisions of the CCPG is provided in the Statement of Environmental Effects prepared by ABC Planning (dated October 2022). Further the Statement of Facts and Contentions (SOFAC) refers to non-compliances which have since been resolved as confirmed in the Joint Expert Report at Ex 2. Accordingly, I accept that the relevant matters contained in the CCPG have been considered.

17. Section 3.25 of the TI SEPP also provides that consent must not be granted for the purposes of a centre-based child care facility in a R2 Low Density Residential zone if the floor space ratio for the building exceeds 0.5:1. The proposal complies with this requirement having a maximum FSR of 0.47:1.

Issues in the case

18. Issues in the case were outlined in the amended SOFAC filed by the respondent on 9 July 2024. As outlined above the respondent now agrees that all these contentions are resolved. The primary contentions related to: the traffic impact of the proposed development, including site selection (contention 1); bulk, scale and character (contention 2); and setbacks (contention 3). The respondent also raised contentions in respect of: amenity impacts – internal and external including compliance with the CCPG (contention 4); passive surveillance (contention 5); pedestrian circulation (contention 6); and public interest (contention 7).

Public submissions

19. Following lodgement with the Council, the original development application was publicly exhibited from 24 November to 15 December 2022. Two petitions comprising 100 signatures and 53 individual submissions were received in response. In addition, three neighbours spoke at the commencement of the hearing against the proposed development. By way of summary, the matters raised by the residents in the written submissions and in the oral submissions given at the hearing, included concerns in relation to:

• Traffic safety given sight lines, topography, proposed site access, existing traffic signage, bus turning circles and the history of traffic incidents at the intersection immediately adjacent to the site

• Parking issues including loss of on-street parking on neighbouring streets, basement parking etc

• Inability of the operator to manage drop off and pick up arrangements long term

• Height, bulk and scale incompatible with character of neighbourhood

• Privacy impacts

• Acoustic impacts

• Overshadowing

• Plan of management implementation

• Impact on natural light and ventilation of neighbouring properties

• Lack of demonstrated demand for child care centre

• Age mix of children and proposed staffing levels

• Construction impacts

20. Notwithstanding being the primary issue 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 updated traffic assessment prepared by Stanbury Traffic Planning dated 15 April 2024 (Tab 10 Ex B) 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 and acoustic privacy, the plan of management, light and ventilation and construction impacts have been considered below and found to be satisfactory.

21. With respect to concerns raised over whether there is an established need or demand for a childcare centre in the subject location, s 3.26(2)(a) of the TI SEPP provides that “the development may be located at any distance from an existing or proposed early education and care facility”. Further s 3.27(1)(c) of the TI SEPP makes it clear that any provisions of a Development Control Plan that specify a requirement to demonstrate need or demand for child care services, or that specify a control in relation to the proximity of a facility to other early education and care facilities, do not apply. I therefore consider that this is not a relevant issue in the assessment.

Expert evidence

22. Expert opinion evidence in the form of a joint expert report was prepared by planning and urban design experts (Ex 2). Expert planning evidence was provided by Mr Anthony Betros engaged by the applicant and Ms Jasmin Gotsoulias employed by the respondent. Expert urban design evidence was also provided by Mr Brian McDonald who was engaged by the respondent. No oral expert evidence was given in the proceedings as all matters in contention had been resolved and agreed by the experts.

23. The amendments to the development application have resulted in a proposed development that Mr Betros, Ms Gotsoulias and Mr McDonald all agree is appropriately designed for its streetscape context and does not have an unacceptable adverse impact.

All contentions resolved

24. The experts agree that each of the contentions raised by the respondent on the appeal have been resolved for the reasons set out below:

Site selection and bulk, scale and character

25. The first contention raised by the respondent on appeal is that the site is not suitable for use as a childcare centre at the scale proposed and does not meet the objectives and controls of the CCPG. The second contention is that the bulk and scale is excessive and inconsistent with the existing or desired future character of the locality.

26. Having regard to the reduction in the number of children from 67 to 60 as well as the design amendments, Mr Betros, Ms Gotsoulias and Mr McDonald all agree that the proposal is now suitable for the site. Further they agree that the building bulk and scale is acceptable given that:

• The building is lower than the existing house on site

• The modelling and articulation of the building has been improved from the original

• The deletion of the shade structure to the north of the building (which has been replaced with a lightweight fabric canopy) has reduced the building bulk

• The reduction in the number of children has resulted in the bulk and scale of the proposal being appropriate

• Other matters can be addressed via conditions of consent

27. I accept the evidence of Mr Betros, Ms Gotsoulias and Mr McDonald and am satisfied that the amended proposal is suited to the site, will result in an appropriate height, bulk and scale and will not be inconsistent with the character of the locality.

Setbacks

28. Contention 3 provides that the proposed development fails to comply with the minimum setback requirements under Parramatta Development Control Plan 2011 (PDCP).

29. The experts agree that given the proposed development and site configuration, the setbacks required under Part 3.1.3.1 of PDCP are difficult to apply and that the secondary frontage (east) and side setbacks (west) would comply with Part 3.1.3.1 of PDCP if Honiton Avenue is considered to be the front of the site. Ms Gotsoulias and Mr McDonald agree that given the atypical nature of the site in its residential context, the issue of setbacks is not pressed, that is, I interpret this to mean that they consider that the setbacks are acceptable in the circumstance.

30. Having regard to the expert’s agreement, the amended plans and the street context, I am satisfied that the amended proposal provides for appropriate site setbacks and demonstrates an appropriate presentation to the street.

Amenity Impacts – Internal and External

31. Contentions 4 and 5 provide that the layout of the proposal will result in unacceptable safety, accessibility and amenity impacts on future occupants of the facility and that the proposed development will have unacceptable overlooking impacts on adjoining properties to the west.

32. The experts agreed that as a result of the design amendments (including changes to the kitchen location, increased surveillance, provision of additional pram parking and the inclusion of air-conditioning) as well as further clarifications, all of the particulars set out in the contention have been resolved with the exception of particular (k) which provides that “the 0-2 facilities are isolated at the end of a long gallery”. In this regard Mr McDonald disagrees that the particular is resolved. He says that separation of the 0-2 play area, accessed by a long gallery or colonnade beside the car park, isolates the youngest children from the rest of the facility and denies a connection with the administration areas and other age groups. He agrees that this matter it is not determinative but says that this is an “inconvenient aspect of the design”. Mr Betros for the applicant in the alternative says that the separation is a positive aspect of the design separating the younger children from the older children thus minimising sleep disturbance. Mr Betros also says that the indoor and outdoor areas for the 0-2 are easily accessible from the remainder of the centre including the lobby and reception areas. Further he says that the internal area screens the parking area and represents a positive streetscape outcome and that further it provides convenient access to the evacuation area. I accept the evidence of Mr Betros and Ms Gotsoulias that the location of the proposed 0-2 area is reasonable having regard to the amended design which includes improved visual connection to the area.

33. With the exception of the above, the experts agree that as amended and having regard to the proposed conditions of consent, the proposal will result in acceptable internal and external amenity impacts. I accept the evidence of the experts and I am satisfied that the proposal will provide appropriate internal and external amenity.

Passive surveillance and safety

34. Contention 6 provides that the proposed layout of the development fails to achieve passive surveillance to all street frontages and a clear transition between the public and private realms. The experts agree that this contention has, in respect of passive surveillance, been addressed by the design amendments (including changes to the layout and inclusion of additional windows). Further they agree that in relation to the transition and compliance with principle 7 (Safety by the design principles in Part 2 of CCPG) and control C6 of Part 3.2 (Local character, streetscape and public domain interface) of the CCPG, the contention is not pressed. I therefore understand this to mean that they consider it to be acceptable.

35. I accept the evidence of the experts and I am satisfied based on their evidence and the submitted plans that the proposal will provide appropriate passive surveillance and will not adversely impact safety.

Pedestrian circulation

36. Contention 7 provides that the proposal is unsatisfactory in respect of pedestrian circulation. The experts agree that this contention has been addressed by the amendments to the design in particular the internal planning of the administration area which has been amended to provide a direct line of sight from the administration area to the frontage gate and entry path, an increase in the size of the reception area, provision of pram parking and additional windows. I accept the evidence of the experts in this regard, and am satisfied that the proposal as amended will provide for appropriate pedestrian circulation.

Public interest

37. Contention 8 provides that the proposal is not in the public interest based on:

• The concerns raised in the objectors submissions

• The extensive non-compliances with the planning controls… and

• Non-compliance with Section 5.2.3.2 objective 02 of PDCP regarding maximum number of children whereby consent to a child care centre exceeding 40 children will be considered only if a minimum of 33% of places are provided for children under 2 years of age

38. The experts agree that this contention has been resolved as discussed above and that the applicant has now provided sufficient justification for the proposed mix of age groups in the form of a letter from the proposed operator (Attach. E Ex 2). I accept the evidence of the experts and am satisfied that the proposed development, as amended, will be in the public interest.

38. In respect to other matters raised in submissions I note:

• The height is compliant with the height of building development standard under PLEP 2011

• The number of children is reduced and the mix considered acceptable by the proposed operator

• The proposed use is permissible in the R2 zone

• In respect of acoustic impacts, additional acoustic screens have been provided, windows will be required to be closed to minimise impacts and mechanical ventilation has also been proposed

• In respect of overshadowing the proposal does not result in any adverse impacts

• Traffic and parking impacts have been assessed as acceptable

• Privacy impacts will be minimal with highlight and opaque glass windows proposed

• Compliance with the plan of management will be required via a condition of consent

Development consent should be granted

40. As outlined above each of the contentions raised by the respondent on appeal have now been addressed through the amendments to the proposed design 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.

41. The proposed development is appropriately sited in a residential neighbourhood, has acceptable traffic and parking arrangements, and does not cause any unacceptable impacts.

42. 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).

• The proposal includes demolition and Australian Standard 2601-2001 ‘The demolition of Structures’ (AS 2601-2001) has been considered in accordance with the requirements of s 61(1) of the EP&A Reg and appropriate conditions of consent are proposed in accordance with the recommendations of the Geotechnical Report (Tab 12 Ex B).

• 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 Stage 1 Preliminary Site Investigation (Tab 10, Ex A) and Geotechnical Report (Tab 12 Ex B) have been provided which conclude that the site is not contaminated and is appropriate for the proposed use subject to recommended conditions of consent.

• Consent is sought for tree removal therefore a permit is not required for tree removal in accordance with ss 2.6 and 2.7 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP).

• The site is not within a regulated water catchment and therefore Ch 6 of the BC SEPP does not apply.

• In accordance with cl 6.1 of PLEP 2011 while the site is mapped as containing Class 5 acid sulfate soils, the Preliminary Site Investigation (Tab 10, Ex A) submitted with the application notes that the site does not contain acid sulfate soils. Further the land is not within 500m of adjacent Class 1, 2, 3 or 4 land therefore no further assessment in this regard is required.

• In accordance with cl 6.2 of PLEP 2011 I am satisfied that relevant matters to be considered prior to granting consent to earthworks have been considered having regard to the Geotechnical Report (Tab 12 Ex B) and relevant conditions of consent.

43. I note that the conditions have been agreed by the parties.

Final Orders

44. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to DA/900/2022 for demolition, and construction of a centre based childcare facility for 60 children with basement parking for 9 staff and under croft parking for 7 visitors, subject to the conditions contained at Annexure A.

3. All exhibits are retained.

4. I certify that this and the preceding .12 pages are a true copy of my reasons for judgment.

H Miller

Acting Commissioner of the Court

182424.23 Annexure A

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Decision last updated: 27 September 2024