Artmade Architectural Pty Ltd trading as Artmade Architects v Burwood Council

[2019] NSWLEC 1648

Land and Environment Court

New South Wales

Medium Neutral Citation:	Artmade Architectural Pty Ltd trading as Artmade Architects v Burwood Council [2019] NSWLEC 1648
Hearing dates:	9 December 2019
Date of orders:	31 December 2019
Decision date:	31 December 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1)   Leave is granted to the Applicant to rely upon amended plans marked Exhibit C and Exhibit D. (2)   The appeal is upheld. (3)   Development consent is granted to Development Application No. 2018/90 for the construction of a two-storey building to operate as a centre-based child care facility to accommodate 84 children, and basement carpark to accommodate 21 vehicles at 12 Minna Street, Burwood, subject to conditions at Annexure A. (4) All Exhibits are returned, except for Exhibits A, C, D, E, J and 11.
Catchwords:	DEVELOPMENT APPEAL – centre based childcare facility – acoustic amenity in residential neighbourhood – traffic impacts in R2 Low Density Residential zone – public interest – resident submissions
Legislation Cited:	Burwood Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2007 State Environmental Planning Policy No 55 – Remediation of Land
Cases Cited:	New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154
Texts Cited:	Burwood Development Control Plan 2013 Child Care Planning Guidelines Environmental Protection Authority Road Noise Policy RMS Guide to Traffic Generating Developments (2002)
Category:	Principal judgment
Parties:	Artmade Architectural Pty Ltd trading as Artmade Architects (Applicant) Burwood Council (Respondent)
Representation:	Counsel: P Larkin SC (Applicant) T To (Respondent)   Solicitors: Law Corporation Pty Ltd (Applicant) Matthews Folbigg (Respondent)
File Number(s):	2018/310605
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) relating to the deemed refusal by Burwood Council (the Respondent) of Development Application No. 2018/90 for the construction of a two-storey building to operate as a centre-based child care facility to accommodate 84 children and basement carpark to accommodate 21 vehicles at 12 Minna Street, Burwood.

2. On 5 March 2019, the parties participated in a conciliation conference arranged by the Court under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). As the parties did not reach agreement, the conciliation was terminated by the presiding Commissioner. Following the conference, the parties’ experts conferred, resulting in amendments to the plans and other documents.

3. On 25 July 2019, the Applicant was granted leave to rely upon amended plans and documents (Exhibit B), subject to costs thrown away as agreed or assessed.

4. On 17 October 2019, the Applicant was also granted leave to rely on further amended plans and documents (Exhibit E) subject to costs thrown away as agreed or assessed.

5. In accordance with its usual practice, the proceedings commenced onsite at which a number of public submissions were made by residents of Minna Street. Written submissions from objectors to the proposal are contained in the Respondent’s bundle of documents marked Exhibit 2 (Tab 2 and 3), and notes from the verbal submissions are marked Exhibit 11.

6. As the Respondent maintains that the proposed development is not in the public interest, the public submissions are an important matter for consideration. In my view, the submissions may be summarised in the following manner:

1. The residential character of Minna Street will be adversely impacted by a more commercial use.

2. Increased traffic and demand for car parking will result in greater noise and congestion in the street.

3. The quiet amenity currently enjoyed by residents will be adversely impacted by the noise of the children’s outdoor play.

4. The property value and heritage significance of the heritage item at No 8 Minna Street will be diminished by the proposed development.

5. There is already a high number and concentration of child-care facilities in the Burwood area.

7. At the commencement of the hearing, the Applicant sought leave, unopposed by the Respondent, to rely upon further amended plans that Mr Larkin SC, counsel for the Applicant, submits substantially resolve a majority of the contentions.

8. Mr To, counsel for the Respondent, acknowledges that the joint conferencing of experts and the amendments made to the application since the lodgement of the appeal, has resolved the contentions set out in the Amended Statement of Facts and Contentions in Exhibit 1, except for the matters raised in resident objections as public interest.

9. As a result of the agreement between the parties that the contentions are resolved, other than for those identified in resident submissions, I propose to address those matters set out in [6].

Expert evidence

10. The Court was assisted by expert evidence, in the form of joint reports, prepared by the following experts:

Expertise	Applicant	Respondent
Heritage	Mr John Oultram	Mr Colin Israel
Town planning	Mr Andrew Minto	Mr Scott Barwick
Traffic engineering	Mr Craig McLaren	Mr Jason Scoufis
Acoustics	Mr Neil Gross	Mr Matthew Ottley
Arboriculture	Mr Guy Pairossien

The site and the relevant planning framework

11. The site is legally described as Lot D in DP 305983, having a frontage to Minna Street of 16.12m, and a depth of 81.03m along the western boundary, and 80.97m along the eastern boundary resulting in a total site area of 1,305m².

12. The site is currently vacant following the demolition of an existing building in accordance with a consent unrelated to these proceedings.

13. The site is located within the R2 Low Density Residential zone under the Burwood Local Environmental Plan 2012 (BLEP), in which centre-based child care facilities are a land use permitted with development consent, and for which the objectives of the zone are 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.

14. The parties are agreed that the proposed development does not exceed the maximum height permitted by cl 4.3 of the BLEP, and that it complies with the floor space ratio set out at cl 4.4 of the BLEP.

15. As the application is for a centre-based child care facility, the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2007 (SEPP EECCF) applies.

16. The aims of the SEPP EECCF provide, at cl 3:

The aim of this Policy is to facilitate the effective delivery of educational establishments and early education and care facilities across the State by—

(a)  improving regulatory certainty and efficiency through a consistent planning regime for educational establishments and early education and care facilities, and

(b)  simplifying and standardising planning approval pathways for educational establishments and early education and care facilities (including identifying certain development of minimal environmental impact as exempt development), and

(c)  establishing consistent State-wide assessment requirements and design considerations for educational establishments and early education and care facilities to improve the quality of infrastructure delivered and to minimise impacts on surrounding areas, and

(d)  allowing for the efficient development, redevelopment or use of surplus government-owned land (including providing for consultation with communities regarding educational establishments in their local area), and

(e)  providing for consultation with relevant public authorities about certain development during the assessment process or prior to development commencing, and

(f)  aligning the NSW planning framework with the National Quality Framework that regulates early education and care services, and

(g)  ensuring that proponents of new developments or modified premises meet the applicable requirements of the National Quality Framework for early education and care services, and of the corresponding regime for State regulated education and care services, as part of the planning approval and development process, and

(h)  encouraging proponents of new developments or modified premises and consent authorities to facilitate the joint and shared use of the facilities of educational establishments with the community through appropriate design.

17. Clause 23 of the SEPP EECCF requires that the consent authority, or the Court on appeal, must consider any applicable provisions in the Child Care Planning Guideline, which is contained behind Tab 11, Exhibit 2. The Statement of Environmental Effects prepared by Minto Planning Services dated August 2018 assist me in this regard.

18. Clause 25 of the SEPP EECCF contains non-discretionary development standards related to the location, indoor and outdoor space, site area and site dimensions, colour of building materials or shade structures.

19. Clause 26 of the SEPP EECCF precludes the operation of certain matters from development control plans relevant to child care facilities in the following terms:

26   Centre-based child care facility—development control plans

(1)  A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility—

(a)  operational or management plans or arrangements (including hours of operation),

(b)  demonstrated need or demand for child care services,

(c)  proximity of facility to other early education and care facilities,

(d)  any matter relating to development for the purpose of a centre-based child care facility contained in—

(i)  the design principles set out in Part 2 of the Child Care Planning Guideline, or

(ii)  the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates).

(2)  This clause applies regardless of when the development control plan was made.

20. The site is adjacent to No 8 Minna Street, which is identified in Schedule 5 to the BLEP as a heritage item listed for its local heritage significance as an Inter War house (I81). A heritage item is also located at 17 Minna Street, and the site is within the vicinity of the Burwood Road Heritage Conservation Area (C5) (Burwood Road HCA).

21. Clause 5.10 of the BLEP sets out provisions related to heritage conservation, with the following relevant objectives:

(1) Objectives 

The objectives of this clause are as follows—

(a)  to conserve the environmental heritage of Burwood,

(b)  to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

…

22. The provisions of cl 5.10(4) requires that I consider the effect of the proposed development on the heritage significance of the items at No 8 Minna Street and No 17 Minna Street, and the Burwood Road HCA, and subcl (5)(c) provides that the Court may require a heritage management document to be prepared to assess the extent of possible impact on the heritage significance of the items and the Burwood Road HCA.

23. A heritage impact statement, prepared by John Oultram Heritage & Design dated July 2018 is contained behind Tab 8, Exhibit A, which assists me in understanding the possible impact as stated by the Applicant’s heritage expert.

24. The Burwood Development Control Plan 2013 (BDCP) sets out objectives and provisions that the Respondent considers relevant to the proposal to the extent that the built form should adopt characteristics of the residential character in Minna Street, and so the following apply:

“Section 4.5 Dwelling Houses, Attached Dwellings and, Semi-Detached Dwellings and Ancillary Structures

4.5.1 Development Controls

Building Appearance

P1 The design of the single dwelling must aim to match or compliment the best design and detailing of development in the area, as well as, be of high architectural quality.

P2 Care must be given to the design of building forms and to all elevations, roof forms, windows, door openings and building features generally to ensure that the single dwelling is compatible with a complementary to its neighbours and the streetscape.

…

Setbacks

Objectives

O1 To ensure that new single dwellings or alterations to existing single dwellings are of consistent scale and maintain the character of existing development in the street

…

Provisions

P1 Single dwellings must comply with the minimum setback requirements as set out in the table below:

Side setback
(i) Two storey (second storey component of the dwelling only)	1.5m
(ii) single storey	900mm

…

Landscaped Area

…

O1 To ensure functional private outdoor spaces are provided for residents

O2 To encourage the preservation and integration of existing trees and natural features in to the design of the new development.

O3 To screen and soften the impact of buildings and improve the view along the street

…

Provisions

…

P9 The siting of new buildings, structures, driveways and other hard surface areas must take into consideration impacts of the root zone of existing trees

P10 Tree species must be considered that provide shading in summer and solar access in winter.

…

4.5.2 Ancillary Structures

Overview

Garages, carports and other ancillary structures should be designed as part of a holistic approach to the property rather than in isolation. It is important that garages and carports do not dominate the appearance of a dwelling from the street frontage and do not compromise the aesthetic relationship of the front garden and the streetscape.

…

Provisions

…

P21 Basement garages must be confined to the building envelope. Adequate provision must be made for a deep soil zone and landscaped area.

..

4.7 Heritage in Residential Precincts

4.7.1 Introduction

This section applies to the development of heritage items (including potential or draft heritage items), properties in a Heritage Conservation Area, and development in the vicinity of a heritage item or conservation area where the developable property or heritage property is located in a residential area.

A reference to ‘heritage property’ herein means a property containing a heritage item, potential or draft heritage item, or a property within a Heritage Conservation Area. Heritage items and heritage conservation areas are listed in Schedule 5 of the BLEP 2012.

…

Objectives

…

O4 To ensure that development located in the vicinity of a heritage property is designed and sited in a manner sympathetic to the significance of the heritage property and its setting.

…

Building Design Considerations

…

Views and Vistas

P35 Development of a heritage property, or development in its vicinity, must:

- Provide an adequate area of land around the development to allow interpretation of the significant building or place

- Not detract from the setting of the heritage property

- Retain and respect significant views/vistas from the public domain to a heritage property, as well as the views/vistas originating from the heritage property itself.

…

Development in the Vicinity of a Heritage Property

P40 New development, or alterations and additions to existing development, that is located in the vicinity of a heritage property, must be designed and sited to:

- Have regard for, and be compatible with, the significance of the heritage property

- Reflect the bulk, scale, height and proportion of the heritage property

- Respect the front garden setting, any established setbacks, and views and vistas of the heritage property

- Be recessive in character and not dominate the heritage property

- Interpret the materials and architectural detailing of the heritage property

- Respond to the building alignment of the heritage property.

…

P40B Any development located on a site contiguous with a heritage property, shall have regard to the following:

- The front setback area of the development is to maintain an open setting for the heritage item such as by way of a lower front fence height, sensitive location of the pedestrian access path/entrance, and landscaping. The “privatisation” of the front setback – characterised by courtyards, fences dividing private open space, multiple entries, and high walls – should be avoided. Structures (e.g. bin enclosures, covered letterboxes, fire stairs) should be avoided in the front setback.

- The location of driveways in close proximity to the heritage item’s boundary is to be avoided. Driveways have the potential to adversely impact the amenity of the heritage property, its setting, cause excavation impacts, and reduce landscaping of the new development.

- The location of multiple courtyards or private open spaces along the boundary of the heritage item is to be avoided. This densification of use has the potential to impact the amenity of the heritage property’s residents/occupants

…”

25. Section 5.3 of the BDCP contains provisions specific to child care facilities, which should be read in conjunction with cl 26 of the SEPP EECCF:

“5.3 Child Care Centres

5.3.1 Introduction

This BDCP section provides guidance for development of child care centres by the establishment of additional provisions required by Council. This section applies to child care activities that are covered by the definitions of a centre-based child care facility, school-based child care, and home-based child care under the BLEP 2012.

5.3.2 Aims

The overall aims are:

- To promote excellence and best practice in the design and operation of child care centres.

- To promote the establishment of child care centres that meet the needs of the community.

- To ensure that proposals for new or enlarged child care centres respond positively to their context and setting, have minimal environmental impact are compatible with neighbouring land uses and integrate into existing residential environments.

- To provide child care centres that will support the effective implementation of an early childhood teaching program and assist staff in providing essential support, supervision, care and education of young children.

- To encourage the development of child care centres that maximise the health, safety and well-being of children and staff in child care centres.

…

5.3.5 Development Controls

DAs for child care centres must address the development provisions below. If a DA fails to comply with one or more of the development controls, the applicant should detail how the objectives have otherwise been met.

…

Provisions

Compatibility with surrounding land uses

P1 Applicants must demonstrate that the proposed child care centre will not impact adversely on the surrounding locality and in particular, the amenity of adjoining occupants.

P2 Applicants must demonstrate that the surrounding locality and land uses on adjoining land will not impact adversely on the amenity of children, staff and others occupying the child care centre.

…

General Provisions Applicable to Child Care Centre in All Zones

Mandatory Reports

P1 An acoustic report must be prepared and submitted as part of the DA by an accredited acoustic consultant (having qualifications eligible for membership to the Association of Australian Acoustical Consultants).

P2 A landscape plan must be prepared and submitted as part of the DA by a suitably qualified professional.

…

Heritage Assessment

P6 Where a child care centre is proposed on a site:

- On which a heritage item is situated

- Adjacent to or within the vicinity of land on which a heritage item is situated

- within a heritage conservation area

A heritage impact statement (HIS) must be submitted with the DA to enable Council to take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item and its setting or the heritage significance of the conservation area.

…

Special Provisions in Residential Zones

Objectives

O1 To ensure that child care centres do not undermine or compromise the amenity of residential areas.

O2 To promote child care centre building forms that are compatible with the character of existing surrounding residential development.

O3 To allow child care centres where best practice standards of indoor and outdoor unencumbered spaced is provided.

Provisions

General

P1 Applicants must demonstrate that the proposed child care centre will not impact adversely on the surrounding locality and, in particular, the amenity of adjoining occupants.

P2 Applicants must also demonstrate that the surrounding locality and land uses on adjoining land will not impact adversely on the amenity of children, staff and others occupying the child care centre.

…

P4 The minimum site area for a child care centre on a residential zoned land is 600 square metres excluding Rights of Way and access handles.”

26. The State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) requires that a consent authority, or the Court on appeal, must consider whether the subject land is contaminated. On the basis of the Preliminary Site Investigation undertaken by Aargus dated 16 November 20178, I am satisfied that the land is suitable for the purpose for which the development is proposed to be carried out, pursuant to cl 7(1) of SEPP 55.

Consideration

27. In determining a development application, s 4.15(1) of the EPA Act requires a consent authority, or the Court exercising the functions of Council as consent authority, to take into consideration matters that are relevant to the development the subject of the development application.

28. As it is commonly held by the parties that the contentions as expressed in Exhibit 1 have been resolved by the further amended plans at Exhibit D and Exhibit E, and the amended Plan of Management at Exhibit J, the only matters for the Court to consider relate to the public submissions which I consider most relevant to s 4.15(1) are:

(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

…

(e)  the public interest.

29. The parties submit that a proper approach to considering the public submissions in this matter would be to hold in balance the concerns of the residents of Minna Street, as expressed in their written and verbal objections, with the measurable and agreed evidence of the experts, consistent with Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154, who held at [61] that:

“… [a] consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area [quoting Pain J in Dixon v Burwood Council [2002] NSWLEC 190 at [66]] (Dixon at [53]).”

30. Later at [61], his Honour provides guidance on the weight that is appropriate to give to resident concerns where those concerns are supported by objective or observable consequences of a proposed development.

“…whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.”

31. I propose to assess the concerns of residents against the evidence of the experts and, where relevant, by reference to published and accepted guidelines before deciding on the weight that should be given to those resident concerns.

The residential character of Minna Street will be adversely impacted by a more commercial use

32. Residents tell me that a child care facility in Minna Street would impose a commercial use in a street that is residential in nature, and in which a strong community bond has formed between those living in the street. The practical result of permitting a child care facility in the street, according to the residents, is that it will bring increased traffic, and noise from children at the facility playing outdoors.

33. As stated at [13], Minna Street is within an R2 Low Density Residential zone as defined by reference to the Land Zoning Map in the BLEP. One of the objectives of the R2 zone is to “enable other land uses that provide facilities or services to meet the day to day needs of residents”.

34. Land uses within the R2 zone that are considered consistent with the objective above, and which are permitted with consent, include a number of uses that are not residential in nature, but seek to provide facilities or services that are considered to meet the day to day needs of residents. Some of these permitted uses include centre-based child care facilities; community facilities; educational establishments; emergency services facilities; health consulting rooms; neighbourhood shops; and respite day care centres.

35. Clearly, some non-residential uses are considered by the BLEP to be desirable in low density residential zones such as Minna Street and so I cannot accept that a child care facility is, of itself, offensive to the BLEP.

36. However I accept that an assessment of the nature of the impact, if any, of a non-residential use on the amenity of the residents is deserving, and requires consideration of the traffic and acoustic impacts as the measure for whether a use defined by the residents as commercial, would result in an impact that is adverse.

Increased traffic and demand for car parking will result in greater noise and congestion in the street

37. The experts did not initially agree on the methodology for determining the origin or volume of traffic for the purposes of acoustic calculation. In particular, the experts did not agree on the ‘percentage split’ of vehicles turning in to Minna Street from Burwood Road which was an input into the traffic modelling, so as to derive an acoustic value when measured at the façade of properties on the street.

38. The experts substantially resolved this dispute and agreed that somewhere between 51%-53% of parents and carers would access the proposed development to/from Burwood Road, with morning peak hour traffic experiencing the greater increase in volume.

39. The noise resulting from the increased traffic movements was calculated by Mr Gross, uncontested by Mr Ottley, to be 59dBA, which is within the limit set by the Environmental Protection Authority Road Noise Policy of 60dBA (Exhibit F, Folio 28).

40. The concern held by residents is the impact of the development on traffic in the street. Specifically, residents expressed their concern that vehicular traffic generated by parents, carers and staff associated with the child care facility will exceed the visitor parking shown in the basement, will spill over into on-street parking, and add to an already congested street which has a ‘bottle-neck’ at the intersection with Burwood Road.

41. The proposed development contains 21 parking spaces in the basement. Fourteen (14) of these spaces are for visitor parking. Seven (7) are for the use by staff.

42. The Traffic Impact Assessment (Exhibit A, Tab 11) includes car parking figures based on parking guidelines derived from the BDCP, and from the RMS Guide to Traffic Generating Developments (2002) (RMS Guide).

43. Applying parking rates derived from the BDCP, the Applicant submits requires 35 car parking spaces, while the RMS Guide (excerpt at Exhibit L) requires 1 space for every 4 children in attendance, resulting in 21 car parking spaces. Relevantly, the RMS Guide also states that the average stay for a parent or carer at drop off or pick up is 6.8 minutes.

44. The Applicant also relies on a ‘Validation Trip Generation Surveys Child Care Centres Analysis Report’ published by the RMS in September 2015 (Exhibit K) which has not been formally adopted, but which shows on p45 that the average rates applicable to child care facilities with 70-100 children are 1 space per 6 children.

45. The Applicant submits, and I accept, that the car parking rates published in the relevant tables contained in the BDCP do not expressly apply to development in R2 zones, and so it is prudent and appropriate to rely upon figures in the RMS Guide, requiring 21 car spaces.

46. Furthermore, the Applicant undertook on-street parking surveys to assess the availability of car parking spaces in the event that parents, carers and staff, cannot or do not use basement car parking. The survey was undertaken on Monday 14 May between 7am-9am at 15 minute intervals, and found 38 unused car parking spaces on Minna Street.

47. On the basis of the assessment undertaken by the Applicant, and the guidance expressed in the relevant guidelines, I am satisfied that the impact of the development on traffic and parking on Minna Street is not unreasonable.

48. I am also satisfied that the proposal for linemarking at the intersection of Burwood Road and Minna Street (Exhibit 5, Annexure B), if supported by the Local Traffic Committee, would ease the bottle-neck at the intersection during peak periods.

49. Furthermore, I note the Plan of Management (Exhibit J) provides for advice to parents, carers and staff to turn left on to Burwood Road, and to complete a ‘U’ turn at the roundabout at the intersection of Burwood Road/Nicholson Street/Ethel Street in order to head in a southerly direction. The effect of this advice, if heeded, is likely to further reduce congestion in Minna Street.

The quiet amenity currently enjoyed by residents will be adversely impacted by the noise of the children’s outdoor play

50. Residents are concerned that the noise of children playing outdoors will impose upon the acoustic privacy of neighbours, including those who choose to work from home.

51. As submissions also stated that residents were unclear as to how many children would be accommodated, it is relevant to record here that the proposal is for 84 children to be accommodated. However, it is not proposed that all 84 children are outside at the same time.

52. The Plan of Management, at p4, states the following:

“…The total number of children outdoors at any one time will be no greater than as set out in the table below:

Age Group	Outdoor Play Area	Maximum number of Children in Outdoor Play Areas at any one time
2-3 years	Play Area A3	10
3-4 years and 4-5 years	Play Area A2	24
0-2 years	Play Area A1	8

53. Mr Katrib, being a shift worker, regularly relies on sleep during the day. His concern is that excessive noise from children playing outdoors will deprive him from the sleep he requires.

54. I consider it relevant that the Plan of Management states, at p5, that:

“Structured learning segments are generally conducted in the morning, before lunch time, and are balanced with periods of free-play, both indoors and outdoors, depending on weather conditions. Children generally rest and sleep between approximately 11:30am until 2:30pm. Depending on weather conditions, children engage in a variety of additional structured learning and indoor / outdoor activities in the afternoon.

During the winter months, children are generally outdoors later in the morning, approximately after 10am. During the summer months, the centre routine restricts outdoor play due to extreme heat, or sun protection. During the summer months, outdoor activities are generally held later in the day, depending on weather condition.”

55. Acoustic modelling in Exhibit F is based on the provision of acoustic walls at the boundary of outdoor play areas, and adjoining properties as shown on the further amended plans at Exhibit C. The Statement of Evidence prepared by Mr Gross dated 1 October 2019, and marked Exhibit F, states that the predicted noise levels of children playing outside will not exceed 44dBA.

56. Considering that there is to be a maximum of 24 children playing outdoors at any one time, and not between the hours of 11.30am-2.30pm during which time the children rest, and generating, according to Mr Gross, a likely noise level of 44dBA at the immediate neighbouring properties at No 8 Minna Street, No 14 Minna Street and No 5 Ireland Street, I consider the acoustic impact to be acceptable.

The property value and heritage significance of the heritage item at No 8 Minna Street will be diminished by the proposed development

57. Mr Katrib of No 8 Minna Street, is of the strong opinion that the development will diminish his property’s value, which he has taken care to preserve and enhance through sensitive and respectful restoration of the dwelling over time.

58. Resident submissions contained in Exhibit 2 also assert that the proposed development will adversely impact the setting and heritage values of the property at No 8 Minna Street.

59. I am satisfied on the basis of the Heritage Impact Statement, prepared by Mr Oultram (Exhibit A, Tab 8) that the curtilage of the property at No 8 Minna Street, and that of No 17 Minna Street, is defined by their respective property boundaries, and that the proposed development is consistent with the character of the street which follows the domestic development pattern of the area and so will have an acceptable impact on the setting and significance of the heritage items in Minna Street.

60. Furthermore, I consider the proposed screen planting to the boundary of the proposed development adjoining No 8 Minna Street to be a reasonable buffer between the properties. Additionally, I accept the evidence contained in Mr Paroissien’s expert report that, should Mr Katrib seek to do so, the amended setback shown in Exhibits C and D would not prevent substantial canopy trees of up to 12m in height from being planted at No 8 Minna Street that would have the effect of screening the development from Mr Katrib’s property, and potentially enhancing the value of the property.

61. Other resident submissions contained in Exhibit 2 echo Mr Katrib’s concern in relation to their own properties, which are not heritage items, but which will be adversely impacted in value by the development, if permitted.

62. For the reasons outlined by Mr Oultram at [59], I accept that the domestic character of the proposal respects the form and scale of existing dwellings on Minna Street, and so is unlikely to be a distinct or notable addition to the streetscape. In addition, I note concerns initially expressed by Mr Israel in Exhibit 4, cautioning on the accretion of signage, bars and shutters are reflected in agreed conditions of consent.

63. For this reason, I see no objective basis on which property values would be adversely impacted by the proposed development.

There is already a high number and concentration of child-care facilities in the Burwood area

64. Residents assert that the Burwood area is already well served by child care facilities, and that there is no demonstrated need for additional child care facilities.

65. I am told that one child care facility is found at 39 Minna Street, adjacent to the small park known as Jackett Reserve, and another is located at 284 Burwood Road, close to the intersection with Minna Street.

66. In verbal submissions (Exhibit 11), a resident advised that there are “too many” child care facilities in the Burwood area.

67. Clause 25 of the SEPP EECCF provides development standards that, if complied with, prevent the consent authority, or the Court, from requiring more onerous standards for those matters. This is consistent with s 4.15(2)(c) of the EPA Act which states that where an environmental planning instrument contains non-discretionary development standards and the development complies with those standards, the consent authority must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards.

68. Of particular relevance is cl 25(2)(a) which provides that a child care facility may be located at any distance from an existing or proposed early education and care facility. As cl 25(2)(a) of the SEPP EECCF allows a child care facility to be any distance from another child care facility (my emphasis), it means that child care facilities could be located adjacent to each other and the distance be, in effect, zero.

69. The effect of s 4.15(2)(c) is that the Court is restrained from imposing a more onerous standard on the distance between child care facilities than that found at cl 25(2)(a) of the SEPP EECCF.

70. As I find resident concerns to be unaided by expert evidence, or reference to published or accepted guides or standards, I acknowledge the concerns expressed by residents but in my view, little weight can be given to those submissions in the absence of such supporting material.

71. Consequently, I consider there to be no grounds on which to refuse the grant of consent for the proposed development.

Orders

72. The Court orders that:

1. Leave is granted to the Applicant to rely upon amended plans marked Exhibit C and Exhibit D.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. 2018/90 for the construction of a two-storey building to operate as a centre-based child care facility to accommodate 84 children, and basement carpark to accommodate 21 vehicles at 12 Minna Street, Burwood, subject to conditions at Annexure A.

4. All Exhibits are returned, except for Exhibits A, C, D, E, J and 11.

…………………………

T Horton

Commissioner of the Court

Annexure A (115 KB, pdf)

PoM (99.6 KB, pdf)

Plans 1 (2.55 MB, pdf)

Plans 2 (3.77 MB, pdf)

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Decision last updated: 31 December 2019