Akula Investment Management Pty Ltd v Blacktown City Council

Case •

[2024] NSWLEC 1805

•

13 December 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Akula Investment Management Pty Ltd v Blacktown City Council [2024] NSWLEC 1805
Hearing dates: 27, 28 November 2024
Date of orders: 13 December 2024
Decision date: 13 December 2024
Jurisdiction:Class 1
Before: Dickson C
Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The appeal is upheld.

(3) The development application DA/23/0018 for alterations and additions to a heritage listed building for the purposes of operating a childcare centre with 60 childcare places, carparking, tree removal and associated earthworks, stormwater, landscaping works and acoustic fencing at 174 Glenwood Park Drive, Glenwood (Lot 2009 in DP 831033) is determined by the grant of consent subject to the conditions in Annexure A.

(4) The Exhibits are returned with the exception of Exhibit 1, and D.

Catchwords:

DEVELOPMENT APPLICATION – centre based childcare centre – adaptive reuse of existing heritage building – contentions addressed by amendments and expert evidence – consideration of concerns of objectors – appeal upheld.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Blacktown Local Environmental Plan 2015, Pt 1, Sch 5, cl 5.10,

Education and Care Services National Regulations, regs 107, 108

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.26

Cases Cited:

BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399

Texts Cited:

Blacktown Development Control Plan 2015

Childcare Planning Guideline 2021

Category:Principal judgment
Parties: Akula Investment Management Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation:

Counsel:
M Staunton (Applicant)
N Hammond (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Clayton Utz (Respondent)
File Number(s): 2024/126851
Publication restriction: No

JUDGMENT

  1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA-23-00018. The development application seeks consent for proposed alterations and additions to a heritage listed building for the operation of a 60-place childcare centre and associated site works. The development is proposed at 174 Glenwood Park Drive, Glenwood (Lot 2009 in DP 831033).

  2. The appeal was subject to conciliation on August 9, 2024, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached the conciliation conference was terminated pursuant to s 34(4) of the LEC Act.

  3. The hearing commenced onsite with a view of the site and adjacent properties in the company of the representatives and the experts. The Court heard evidence from adjoining residents who object to the development.

The site and its context

  1. The Site comprises an irregular shaped allotment with an area of 2,396sqm. The Site has a frontage to Glenwood Park Drive of 65.22m, an eastern boundary length of 46.7m, western boundary length of 38m, and a southern rear boundary length of 42.26m. Glenwood Park Drive is classified as a 'major collector road'.

  2. Existing improvements on the Site include a double storey heritage listed dwelling, identified as ‘Glenwood’, which is listed as a local heritage item under Schedule 5 Part 1 of Blacktown Local Environmental Plan 2015 (BLEP 2015). The existing building was constructed circa 1893 with a primary frontage facing the public reserve to the east of the Site.

  3. The Site currently contains numerous large mature trees along its perimeter and accommodates two (2) separate driveways, which were constructed under a previous development consent (DA-98-5225) for use of the Site as a medical centre.

  4. The topography of the Site provides for a fall of approximately 3.3m from the rear southeastern corner to the front north-eastern corner.

The amended development application

  1. Leave was unopposed and granted by the Court at the commencement of the hearing for the Applicant to amend the application by relying on amended architectural plans, reports and plans of management (Exhibit D).  The amended development application seeks consent for:

  1. A reduction to a 60 place childcare centre.

  2. Orientation of the activity on the site away from the interface with neighbouring properties at the southern boundary.

  3. Changes to the vehicular access arrangements to the site.

  4. Changes to waste collection.

  5. Addition of a pergola to the play area.

  6. Changes to the material proposed in the acoustic fencing.

  7. Changes to landscaping of the site and within the play areas.

  8. Further changes to reflect agreements reached between the experts.

  1. Supplementary joint expert reports addressing the amended plans were prepared and filed by the Traffic, Planning and Childcare experts in the proceedings.

Issues

  1. As a result of the amendments to the development application the Respondent submits that the contentions raised in the Amended Statement of Facts and Contentions filed on 31 October 2024 (Exhibit 1) have been addressed to the Respondent’s satisfaction, subject to the imposition of agreed conditions of consent (Annexure A).

  2. I am nonetheless required to carry out an assessment of the development application pursuant to s 4.15 of the EPA Act to determine if it is appropriate to grant development consent. Section 4.15(1)(a) of the EPA 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. Section 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development and any submissions made by the local residents. For the reasons that are set out below, I accept the parties’ agreed position that the contentions raised by the Council on the appeal have now been addressed and that development consent can be granted subject to the agreed conditions of development consent. I am also satisfied that each of the jurisdictional preconditions to the grant of development consent is met.

Expert evidence

  1. The following experts gave evidence in the proceedings:

  • Heritage: Jennifer Hill (Applicant), Lisa Truman (Respondent)

  • Town planning: Jeremy Swan (Applicant), David Waghorn (Respondent)

  • Traffic: Ross Nettle (Applicant), Tom Steal (Respondent)

  • Childcare: Lynda Campbell (Applicant), Wendy Shepherd (Respondent)

  • Acoustic: Adam Shearer (Applicant), Stephen Cooper (Respondent)

  1. Each of the preceding pairs of experts prepared joint reports which were admitted into evidence. Following the grant of leave to the amended development application and the oral evidence heard from the objectors on site the Town Planning, Traffic and Childcare experts were directed to prepare supplementary joint reports.

  2. Given their written agreement that the Respondents contentions were resolved, the heritage and acoustic experts were excused.

Planning Framework

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The development application is accompanied by a Preliminary Site Investigation, a Detailed Site Investigation (DSI) and a Remedial Action Plan (RAP). The DSI concludes that the site can be made suitable, following remediation, for the proposed development. The conditions of consent include a requirement to the complete the works identified in the RAP and other associated requirements. I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.

State Environmental Planning Policy (Transport and Infrastructure) 2021

  1. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) concerns educational establishments and childcare facilities and applies to the proposed development. Section 3.22 of SEPP TI requires concurrence of the Regulatory Authority in the event that the proposed development does not comply with the unencumbered indoor or unencumbered outdoor space requirements of regs 107 or 108 of the Education and Care Services National Regulations (National Regulations). Compliance with these provisions was the subject of the Statement of Environmental Effects (SEE) and a report prepared by Lynda Campbell which confirms compliance of the amended development application with the National Regulations. I am satisfied with the agreed position of the childcare experts that the proposed development complies with regs 107 and 108 and therefore concurrence from the Regulatory Authority is not required.

  2. Section 3.23 of the SEPP TI requires the consent authority to consider “any applicable provisions of the Childcare Planning Guideline” in determining the development application.

  3. Section 3.26(2) of SEPP TI sets out non-discretionary development standards for the purposes of ss 4.15(2) and 4.15(3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based childcare facility. Further, s 3.26(2)(b) of SEPP TI provides the requirements for indoor or outdoor space. The proposed development provides at least 3.25sqm of unencumbered indoor play space per child and at least 7sqm of unencumbered outdoor play space per child, consistent with the indoor and outdoor unencumbered space requirements of the National Regulations.

  4. The compliance of the proposed development with the National Regulations, SEPP TI and the Childcare Planning Guidelines was the subject of expert evidence. The supplementary joint report of the Childcare experts concludes that the amended plan of management and the amended development application meets the requirements of these planning instruments.

  5. As required by s 3.23 of SEPP TI, I have considered the applicable provisions of the Childcare Planning Guideline in determining the development application. With the assistance of the agreed expert evidence, I accept that the mandatory standards are met, and no issues remain with the discretionary standards that warrant refusal of the development application.

  6. Compliance with the Plan of Management during the operation of the centre is required in the Annexed conditions of consent.

Blacktown Local Environmental Plan 2015

  1. The site is zoned R2 Low Density Residential pursuant to Blacktown Local Environmental Plan 2015. Development for the purpose of centre based childcare is a use permitted with consent in the zone.

  2. In determining the development application, I have given consideration to the objectives of the zone which are:

  • 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 enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.

  1. The subject site is listed as a local heritage item pursuant to Sch. 5 of LEP 2015. Pursuant to cl 5.10(4) in determining the development application I am required to consider the effect of the proposed development on the heritage significance of the item. The impact of the proposed development, as amended, was the subject of joint conferencing by the heritage experts. The experts have reached the following agreements:

a) The proposal retains the remaining original internal and external fabric of Glenwood House and removes later additions that detract from its significance, including the carpark to the front garden and the garage.

b) The proposed reconstruction of missing elements of the font verandah and the reinstatement of the eastern garden of the house are positive outcomes for the heritage significance of the house, reinstating its landmark qualities, landscaped setting and connection to the adjacent park that was its former orchard.

c) The proposed modification of the garage as subordinate linked pavilion structure will enable a clearer interpretation of the original house form and is considered to be a positive outcome in heritage terms.

d) The proposed internal works retain the original room configuration. The impact of the proposal on the interior of the original parts of Glenwood House is minimal and acceptable.

e) The location of the proposed additions at the west of the house is acceptable as it is the rear of the house.

f) The western addition is separated from the fabric of the main house in a pavilion structure which is smaller in scale and subordinate to the house. This is an appropriate outcome.

g) The northern addition is located adjacent to a non-original rear wing and will not impact original fabric of key views. Provided it is set in 640mm from the corners of the existing wing and below its eaves (as provided in the Revision M plans), this is acceptable on heritage grounds.

h) The additions have been designed to be clearly read as new work, and with an architectural character that complements the existing house.

i) The proposal includes the appropriate reconstruction of missing elements as provided in the Conservation Works Schedule..

j) New work should interpret the former quality of the spaces by reinstating original finishes.

k) The original name should be interpreted through the continual use of the name, Glenwood House, in the proposed child care centre.

l) The new rural style fence to the eastern boundary should replace the existing palisade fence on Council land. The palisade fence should be removed by Council as it is not sympathetic.

m) The east and west driveway entries should remain to the edges of the site and the heritage setting.

(Exhibit 7)

  1. Further, the heritage experts agreed some design changes that should be undertaken to the material and detailing of the proposed acoustic fence, the reduction in height of the western and northern additions (600mm and 200mm respectively) and some additional landscaping. These amendments have been made to the plans for which consent is sought.

  2. Finally, the heritage experts proposed some conditions of consent to be imposed which are included in the conditions of consent at Annexure A.

  3. Pursuant to cl 5.10(4) of LEP 2015 I have considered the effect of the proposed development on ‘Glenwood’. With the benefit of the heritage experts’ evidence, I am satisfied that the effect on the item is acceptable.

Blacktown Development Control Plan 2015

  1. Blacktown Development Control Plan 2015 (DCP 2015) applies to the development application. Part A of provides general guidelines for development. Part C of DCP 2015 details the controls for development within residential areas and Part G addresses waste management. The Respondent submits that the following controls are relevant to the development application and the issues that remain in contention:

Part A

4.4.2 Development in the vicinity of a heritage item

Objectives

(a) Ensure that development does not adversely affect the heritage significance of heritage items, heritage groups or archaeological sites as well as their settings, distinctive streetscape, landscape and architectural styles

(b) Ensure that development in the vicinity of a heritage item is responsive and respectful in terms of height, setback, form and overall design.

Controls

(a) Development Applications on land adjacent to and/or adjoining a heritage item must be accompanied by a Heritage Impact Statement that addresses:

(i) The impact of the proposed development on the heritage significance, visual curtilage and setting of the heritage item

(ii) The size, shape and scale of, setbacks for, and the materials to be used in, any proposed buildings or works

(iii) Any modifications that are needed to reduce the impact of the proposed development on the heritage significance of the heritage item

(b) The design and siting of new works must complement the form, orientation, scale and style of the heritage item

(c) Development must maintain significant or historic public domain views to and from the heritage item

(d) Development in the same street as a heritage item that is part of a streetscape of buildings of consistent style, form and materials should incorporate the dominant style, form and materials of the streetscape

(e) Development is not permitted beneath the drip zone of trees that are integral to the significance of a heritage item

(f) Materials and colours of the facade of new developments must be complementary to an adjoining and/or adjacent heritage item

(g) Development must have effective screen planting on side and rear boundaries adjoining a heritage item, with planting to achieve a minimum mature height of 10m

(h) Front and side fences are to be no higher than the fence on an adjoining heritage item. Front fences should be open and transparent, such as timber picket or metal palisade. Side fences should be timber. No metal panel fencing is to be constructed on the boundary of any heritage item.

…

6.3 Carparking: Specific land use requirements.

…

Child care centre: 1 space per employee, plus 1 space per 6 children or part thereof for parents and visitors

…

Part C

8.3 Childcare facilities

8.3.2 Objectives

(a) To ensure that all local communities have convenient access to high quality child care services

(b) To ensure that child care facilities provide a safe, healthy and active environment for the care and development of children

(c) To promote design excellence in child care development

(d) To ensure that child care facilities will satisfy local demand for child care places, including the provision of more places for children under 2 years of age

(e) To protect and preserve the amenity and character of residential neighbourhoods

(f) To ensure that safe access and car parking is provided for staff and visitors

(g) To ensure that the principles of ecologically sustainable development are implemented in the provision of child care services

(h) To provide guidance on preparing a Development Application (DA) for child care facilities.

8.3.3 SEPP (Education and Child Care) 2017 and the Child Care Planning Guideline

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 and the Child Care Planning Guideline apply to all development for child care in NSW. This includes all new and existing child care facilities.

All Development Applications must demonstrate how the development complies with:

• the National Quality Framework for Early Childhood Education and CareFacilities

• the relevant objectives, provisions and considerations in the SEPP and the Child Care Planning Guideline This DCP does not apply where it is inconsistent with the SEPP or the Guideline (except for building height, side and rear setbacks or car parking rates).

Part G

5.3.7(h) Centre- based child care facility.

The information submitted with the development application must be supported by scaled site and floor plans that clearly identify the:

• kerbside collection point if the number of proposed enrolments at the centre will result in a maximum 7 x 240 litre bins. The bin requirement will be based on compliance with the waste and recycling generation rates as outlined in the EPA Better Practice Guide for Resource Recovery in Residential Developments 2019

• onsite collection point if the number of proposed enrolments at the centre will result in 8 x 240 litre bins or more. The bin requirement will be based on compliance with the waste and recycling generation rates as outlined in the EPA Better Practice Guide for Resource Recovery in Residential Developments 2019 for childcare centres

• loading bays and truck travel paths for onsite collection are designed clear of pillars, support beams, services, air conditioning units, sprinklers and any other obstruction that would hinder safe passage for waste collection vehicles

• onsite collection point(s) are located on the same level as the interim waste room(s) and waste room(s) The documentation submitted with the development application in relation to waste must:

• state how all waste, recyclables and bulky waste collections will be undertaken

• include a loading dock management plan to detail all proposed uses of the space and the management of competing services where applicable to the proposal. Council will not provide service windows for waste collection.

  1. DCP 2015 applies to the site, with the preceding provisions being of particular relevance. The documents filed with the application, and the expert reports filed in the proceedings, detail the compliance of the proposed development with the relevant provisions of DCP 2015. With the assistance of the expert evidence, I have considered those provisions and the way in which the proposed development achieves compliance with them. Having considered the provisions of the development control plan I am satisfied that none warrant the refusal of the application: s 4.15(1) of the EPA Act.

Public Submissions

  1. A summary of the submissions made on site by residents objecting to the development was admitted into evidence as Exhibit 2. Further, all the submissions received by the Respondent in response to the public notification of the development application between 15 February and 1 March 2023 was tendered as part of Exhibit 8. The main submission of the objectors can be summarised as a concern that the proposed childcare centre will detrimentally impact on their peaceful enjoyment of their private properties and have a deleterious effect on their ability to work from home. In addition, they raised specific concerns with the:

  1. Age of the data for traffic report;

  2. Changes to the boundary fencing;

  3. Practicality of the amended Waste Management;

  4. Extent of changes to the heritage item;

  5. External landscaping;

  6. Impacts from the development on native flora and fauna;

  7. Wheelchair access;

  8. Pick-up and drop off procedures;

  9. Centre cleaning and maintenance;

  10. Noise Management Plan;

  11. Events and parent information days;

  12. Schedule of play.

Each of the contentions raised by the Council has been resolved

  1. As a result of amendments made to the development application in the course of the appeal proceedings, each of the contentions raised by the Council on the appeal has been resolved.

Heritage impact

  1. The Respondent raised a contention that the amended development application failed to preserve the heritage significance of the heritage item, Glenwood House, including setting, contrary to cl 5.10 of LEP 2015.

  2. The heritage experts agree that the amended development application resolve the heritage contention advanced by the Respondent. In particular they identify the following:

  • That the development application retains the remaining original intact fabric of Glenwood House and removes later detracting additions.

  • The proposed reconstruction of missing elements of the front veranda and reinstatement of the eastern garden are positive outcomes.

  • New building will be a subordinate structure in a pavilion design.

  1. Finally, they recommend some changes to the acoustic fence design and conditions of consent. These have been accepted by the Applicant and are incorporated in the amended development application and the conditions in Annexure A.

Outdoor space and inconsistency with Child Care Planning Guideline

  1. The Respondent raised a contention that amended development application must be refused because the design of the outdoor areas is inadequate to allow children to engage in healthy developmental play.

  2. Further, the Respondent raised a contention that amended development application should be refused because it is inconsistent with the objectives and provisions of the Childcare Guidelines which must be taken into consideration pursuant to cl 3.23 of SEPP TI.

  3. The childcare experts agree that the amended landscape plan addresses the earlier concerns about the ability of the outdoor areas to engage children in developmental play. Further, increased shading has been incorporated into the play area as part of the POM and is addressed in the conditions in Annexure A.

  4. The supplementary joint report of the Childcare experts concludes that the amended plan of management and the amended development application meets the requirements of SEPP TI, National Regulations and the Childcare Planning Guideline.

Safety

  1. The Respondent raised a contention that amended development application should be refused because it does not provide for a safe and functional childcare centre and does not comply with the objectives and provisions of the Childcare Guidelines, the National Regulations, the DCP 2015 and SEPP RH.

  2. The amended development application includes a single secure pedestrian access point from the street and car park.

Waste

  1. The Respondent raised a contention that amended development application should be refused because it does not comply with Part G of DCP 2015– Waste Management and Minimisation.

  2. The planning experts agree that this contention is resolved in the amended development application by the POM which reserves parking spaces 15, 16 and 20 for waste collection vehicles. The conditions in Annexure A require waste collection to occur outside peak periods between 10.30 am -2.30 pm.

Traffic and Carparking

  1. The Respondent raised a contention that amended development application should be refused because it gives rise to significant traffic and parking issues which will have an unacceptable impact on road and pedestrian safety.

  2. The initial joint reporting of the traffic experts had a number of outstanding areas of disagreement. Following the amendment of the development application, those areas of disagreement were reviewed by the experts. The supplementary joint report concludes that the contentions and the areas of disagreement are resolved by the amended plans, additional traffic data and the imposition of the conditions of consent in Annexure A.

  3. The expert evidence is that there are no traffic or parking issues or impacts arising from the development which would support the refusal of the development application.

Public Interest

  1. The Respondent raised a contention that amended development application should be refused because it is not in the public interest.

  2. Following the oral evidence of the objectors on site the planning experts in the proceedings were directed to undertake supplementary joint conferencing to discuss each of the issues raised. A supplementary joint report was prepared, filed and admitted as Exhibit 10. That report examined each of the issues raised by the objectors. The planning experts reached the following agreed conclusion:

In summary, the Planning Experts agree that the combination of the Plan of Management (POM) and conditions of consent will provide for an appropriate balance between providing a new child care centre in an appropriate location and minimising the impact on the amenity of surrounding properties and the streetscape.

(Exhibit 10).

  1. Their evidence addressing each of the issues raised is extracted below:

11. The Planning Experts provide the following response to the issues raised in turn below:

a. Age of the data for Traffic Report

The planning experts understand that updated Traffic Data has been submitted as Part of Exhibit EJF-4. We understand the issues of traffic and safety have been resolved by the Traffic Experts.

b. Changes to the fence

The Amended Architectural Plans provide no changes to the common boundary fences from any properties in Dairy Court. This is secured by a condition of consent.

c. Amended Waste Management

The Amended Traffic Report in Exhibit EJF-4 notes that an SRV will collect waste onsite outside of peak pick-up and drop off times (10:30am-2:30pm) for the CCC. This is resolved by the POM and conditions of consent. The Planning Experts consider that issues relating to wear of the roads, cost to fix cracks, potholes and the like are not relevant planning matters and would be equally applicable to any use or development on the site.

d. Extent of changes to the heritage item

We understand the Heritage Experts have agreed that the location and extent of additions will not have any adverse impacts on the heritage significance of the building. There is no new first floor level addition, except for an extension of the first floor level verandah which, as we understand, reinstates original details. The removal of the south facing first floor terrace would improve the privacy relationship with properties in Dairy Court and will be discussed below.

e. External landscaping

The Planning Experts consider that the removal of the eastern carpark and retention of trees will provide a better presentation to the public domain than the existing development. Furthermore, the Heritage, Landscape and Acoustic Experts all consider the amended proposal in EJF-4 to be an appropriate outcome. Subject to the POM, Acoustic Report and conditions of consent, the proposal will not have any adverse impact on acoustic privacy as discussed below.

f. Native flora and fauna

The amended proposal will not have any adverse impacts on flora and fauna. Any trees removed from the site will be adequately compensated as detailed in the Landscape Plan. The Planning Experts agree this does not warrant refusal or any further condition of consent.

g. Wheelchair access

The Planning Experts consider that the design and width of the proposed footpaths within the centre are appropriate when considered on balance against the adaptable re-use of the heritage item. The Planning Excerpts note that C35 of the CCPG does not specifically require all paths to be sufficient width for two prams and/or wheelchairs to pass, but only recommends this design solution “may be incorporated into a development”. The Child Care Experts agree that the footpath widths and design are appropriate.

h. Pick-up and drop off procedures

The Traffic Experts have confirmed that it is legal to cross double lines to enter and exit the driveways of the CCC. We understand that the Traffic Experts also agree that subject to conditions, the sightlines are sufficient for the proposed CCC.

i. Centre cleaning and maintenance

The POM (p7) addresses centre cleaning and maintenance. The Planning Experts agree that external maintenance such as mowing lawns or landscaping must take place outside of business hours when children are not at the centre. This will be no different to maintenance for dwellings in the locality and does not warrant refusal or additional conditions on the development.

j. Noise Management Plan

We understand the Acoustic Experts agree that subject to the recommendations of the amended Noise Report, the POM (EJF-4) and conditions of consent, the proposed CCC, including plant and equipment, complies with the relevant noise requirements. The issues relating to settling children and educators interacting with students is addressed in the POM.

k. Events and Parent Information Days

The event and parent information days are detailed in the POM and note that these will occur during operating hours. The Planning Experts agree that the frequency of these events will be low and events must comply with the conditions of consent, including hours, noise and management.

l. Schedule of Play

The hours of operation are consistent with C28 of the CCPG and other CCC in the Blacktown LGA. The Child Care and Acoustic Experts have devised the schedules of play, especially outdoor play to comply with the acoustic requirements and this will be secured in the POM and conditions of consent.

m. Local Employment

The Planning Experts agree that employing local residents is desirable but not mandatory. The Planning Experts agree this this does not warrant refusal or anadditional condition of consent.

n. Privacy

As discussed above, the Planning Experts consider that the removal of the trafficable first floor south facing terrace which will be replaced by roof and a minor extension to the heritage verandah will result in an improvement to visual privacy for adjoining properties. Furthermore, the first floor level will be only used by staff and the director with the noise impacts agreed by the Acoustic Experts and secured by the POM and conditions of consent.

o. Night Lighting

The experts note that conditions of consent deal with the issue of light spillage, especially at night at Condition 18.3 (c).

p. Child Care Centres in Glenwood

Clause 3.26 of the Transport and Infrastructure SEPP contains non-discretionary standards in relation to CCCs. In this regard 3.26(2)(a) states that “development may be located any distance from an existing or proposed early education and child care facility”. Therefore, the separation or vacancy rates cannot form a reason for refusal.

q. Childcare Worker Shortage

r. NSW Government Child Care grant

The Planning Experts agree the two issues above can be grouped as these are not relevant planning matters under s4.15 of the EPA Act.

s. Increased foot traffic, litter and noise on the footpath/pathway

The Planning Experts agree that there is no evidence to suggest the CCC will increase foot traffic, litter and noise on the footpath/pathway greater than any other use or development existing in the area. t. Vehicle traffic increases and safety Subject to the Traffic Report, POM and conditions of consent, we understand the issues of traffic and safety have been resolved by the Traffic Experts.

u. Delivery of goods and services

Subject to the Traffic Report, POM and conditions of consent, we understand the issues of delivery of goods and services have been resolved by the Traffic Experts. Waste collection and deliveries will occur on site and outside of peak hours (between 10:30am-2:30pm).

v. Previous unauthorised business activities on the site

The Planning Experts agree that this is not a relevant matter for consideration for this DA. Council can pursue separate action if required.

w. Location in the R2 Low Density Residential Zone The proposed CCC is permissible with consent in the R2 zone. The Planning Experts consider that the proposal is not antipathetic to the objectives of the R2 zone and represents an appropriate adaptive re-use of a heritage item.

x. Plan of Management

The amended POM in EJF-4 has gone through numerous refinements to achieve an appropriate balance between operating and CCC and minimising the impact on the streetscape or surrounding properties. The Planning Experts note that the CCC must be licensed and operate in accordance with the relevant requirements.

(Exhibit 10)

  1. Finally, I note that many of the objections raise concerns about the potential impact of the development on their ability to experience the quiet enjoyment of their land. In considering the objectors submissions I need to give weight to the planning instruments and their strategic intent: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117]. Centre based childcare centres are a permitted use in the R2 Low Density Residential zone, further the issues of acoustic, privacy, and traffic impacts are, on the basis of expert evidence, resolved by the annexed conditions. In undertaking the evaluation under s 4.15 of the EPA Act, I am satisfied that the concerns raised by the objector do not warrant the refusal of the application.

Development consent should be granted.

  1. For the reasons expressed above, each of the contentions raised by the Respondent on the appeal have been adequately addressed through additional information and amendments to the development application. As such, there is no reason advanced that could form a basis upon which development consent should be refused. 

  2. The proposed development is permissible on the site, the jurisdictional preconditions have been met and it complies with the relevant development controls. The evidence from the experts engaged in the proceedings do not identify any merit reasons which would support the refusal of the application. Further, I am satisfied that the matters raised by the objectors have been satisfactorily addressed either through amendments to the development application or conditions of consent., 

  3. It is therefore appropriate to grant development consent in the circumstances, subject to the conditions agreed by the parties.

Orders

  1. As noted at [8] The Applicant was granted leave at the commencement of the hearing to amend their development application. The parties agree that is appropriate to make an order for costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as the proposed amendments were more than minor.

  2. Having reviewed the material in Exhibit D I accept the agreement of the parties. I am satisfied that the proposed amendments are more than minor and that the usual order for costs thrown away be made under s 8.15(3) of the Environmental Planning and Assessment Act 1979.

  3. The orders of the Court are:

  1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

  2. The appeal is upheld.

  3. The development application DA/23/0018 for alterations and additions to a heritage listed building for the purposes of operating a childcare centre with 60 child care places, carparking, tree removal and associated earthworks, stormwater, landscaping works and acoustic fencing at 174 Glenwood Park Drive, Glenwood (Lot 2009 in DP 831033) is determined by the grant of consent subject to the conditions in Annexure A.

  4. The Exhibits are returned with the exception of Exhibit 1, and D.

D Dickson

Commissioner of the Court 

Annexure A

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Decision last updated: 13 December 2024

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