Australian Childcare Solutions Pty Ltd v Orange City Council

[2017] NSWLEC 1737

Land and Environment Court

New South Wales

Medium Neutral Citation:

Australian Childcare Solutions Pty Ltd v Orange City Council [2017] NSWLEC 1737

Hearing dates:

19, 20 October 2017 with further written material on 23, 27 October, and further submissions on 1, 2 November 2017

Date of orders:

21 December 2017

Decision date:

21 December 2017

Jurisdiction:

Class 1

Before:

Martin SC

Decision:

The Orders of the Court are:

 

(1) Leave is granted to the Applicant to rely upon Amended Architecture Plans (Exhibit D), Amended Landscape Plan (Exhibit E) and Schedule of Amendments (Exhibit F).

 

(2) The appeal is dismissed.

 

(3) Development Application No 63/2017(1) at Lot 194 DP 1007290 known as 36-40 Turner Crescent, Orange for the construction and operation of a childcare centre is determined by refusal.

 (4) The Exhibits, save for Exhibits 2, 5, 6 and 8, are returned.

Catchwords:

DEVELOPMENT APPEAL – actual refusal - Child care centre – traffic and pedestrian safety – residential character – visual amenity – calculation and adequacy of outdoor space – size of parking area – commencement of new child care SEPP after commencement of appeal but prior to the hearing

Legislation Cited:

Child Care Planning Guideline (NSW) August 2017
Education and Care Services National Regulations 2016
Environmental Planning and Assessment Act 1979
Orange Development Control Plan 2004
Orange Local Environmental Plan 2011
State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
State Environmental Planning Policy No 55 – Remediation of Land

Cases Cited:

Gilbank v Bloore (No 2) [2012] NSWLEC 273
Krslovic Homes Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 192
The Super Studio v Waverley Council [2004] NSWLEC 91

Category:

Principal judgment

Parties:

Australian Childcare Solutions Pty Ltd (Applicant)
Orange City Council (Respondent)

Representation:

Counsel:
Ms F Berglund (Applicant)
Ms J Walker (Respondent)

  Solicitors:
Holding Redlich (Applicant)
Maddocks (Respondent)

File Number(s):

2017/248500

Publication restriction:

No

Judgment

1. This appeal has been brought by the Applicant, Australian Childcare Solutions Pty Ltd, against the decision of the Orange City Council to refuse approval for a childcare centre proposed to be located at 36 - 40 Turner Crescent, Orange (‘the Site’).

Decision

2. The heart of the dispute between the parties is whether the proposed development, while permissible, has unacceptable visual, noise, amenity and traffic impacts such as to warrant its refusal. There was also dispute with aspects of the development’s design, including proposed parking, and the amount of outdoor play space available for children. For the reasons set out in this judgment, I find that taken in combination, the cumulative impact of these matters leads me to find that development consent ought not be granted. The appeal is thus dismissed.

The Site and its Context

3. The proposal involves construction of a purpose-built facility for use as a long day childcare centre (‘the Centre’) for 124 children, and associated site works, including vehicle areas, external play space and landscaping. Vehicle access to the Site will be via Turner Crescent, with 31 on-site parking spaces - one per 4 places (which includes one disabled parking spot) - provided along the western boundary of the Site, with parking bays on either side of the driveway. The Centre will take children aged between 0 – 6 years, with hours of operation between 7 am and 6 pm Monday to Friday.

4. The Site has a long north-west to south-east orientation and is vacant and devoid of trees and vegetation, save for grasses. It adjoins two residential lots, one to the south (159 Molong Road) and one to the west (42 Turner Crescent). The development’s frontage at Turner Crescent on the south west is 17.6 m; 49.65 m to the west adjoining a single-storey dwelling house at 42 Turner Crescent; to the northwest at the Northern Distributor Road the frontage is 53.8 m, and it abuts a strip of RE1 Public Recreation-zoned land separating the Site from Molong Road (72.8m). There is a sewerage easement located at the proposed front entrance of the Site. Vehicular access to the Site is via Turner Crescent, with access unavailable via the Northern Distributor Road due to the presence of the public reserve to the east. Turner Crescent is a local road with no through traffic (see images below).

5. The proposed Centre building is 65 m long, and has a large unbroken pitched roof with a parapet on the eastern elevation, 7.8 m high. The roof form comprises 5 m of the overall height. The building will be set approximately 1 m below the road level in front of the Site. Surrounding dwellings have building lengths up to 25 m, with heights of 4 m to 4.5 m. It is uncontroversial that the building will be prominent as viewed from Molong Road (travelling south) and the Northern Distributor Road, due the location of the Site at an intersection.

6. The Site slopes down towards the Northern Distributor Road in the north, with its high point at Turner Crescent. There is a difference in height across the Site of approximately 3.6 m which is spread over a site depth of about 69 m: Ex 1 at [6.11]. The development proposes cut and fill works to balance out the levels across the Site. This relies on the Site being cut at the southern end and filled within the northern end.

7. The Site is located within an established residential area, where the precinct is characterised by modern double-fronted, single-storey brick veneer dwellings dating from 1990 – 2000. The dwellings have traditional roof forms, broken into multiple pitches with hips and dutch gables. Local road reserves are relatively wide, measuring 17 – 18 m. There is established private landscaping with front setbacks generally comprised of soft landscaping with no front fencing. This contributes to an open and spacious feel: Expert witness statement of Ms Hyde, Ex 1 at [9.3]. There are no formal footpaths, lending an air of informality to the area.

The Application

8. The development application was lodged with the Council on 7 March 2017. In response to requests for further information from Council, additional information was provided by the Applicant, including a revised traffic assessment. The application was notified and 31 submissions were received. As a result of amendments to the proposal, a second notification period was held, which elicited 11 submissions. The Planning and Development Committee resolved to refuse the DA on 1 August 2017, and this appeal was lodged on 15 August 2017.

9. After the hearing updated plans were filed with the Court on 23 October 2017 reflecting matters which emerged during the hearing, as well as clarifying the position with respect to the proposal for the setback to the entrance, and the estimated amount of unencumbered play space for the children.

10. The updated plans show two outdoor play areas: area 1 of 279 sqm, and area 2 of 666 sqm. The second area includes an area identified as the “picking yard” in the calculations. The regulatory requirements with respect to play areas are discussed further below.

The Relevant Planning Instruments

General Planning Framework

11. The Site is zoned R2 Low Density Residential under the Orange Local Environmental Plan 2011 (‘Orange LEP’). The proposal for a centre-based child care facility is a permitted land use within that zone. There is no height control and no storey control.

12. Under cl 2.3(2) the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. The relevant zone objectives for R2 Low Density Residential include the provision for the housing needs of the community within a low density residential environment and to enable other land uses that provide facilities or services to meet the day to day needs of residents.

13. There are no planning controls which are specific to child care centres within the Orange Development Control Plan 2004 (‘the Orange DCP’), although there are numerous clauses which apply to the proposed development.

14. Section 7.1 of the Orange DCP – Planning for Residential Areas - identifies that “the character of an area is made up of a combination of factors such as type, form, bulk and height of development, building setbacks, design, landscaping, lot sizes, subdivision layout and siting of public places.”

15. Section 7.7 sets out the Design Elements for Residential Development Streetscape. Street setbacks (7.7-4) are to contribute to the desired neighbourhood character, assist with integration of new development and make efficient use of the Site, as well as create an appropriate scale for the street considering all other streetscape components. The setback “in new residential areas (where there are many newly created vacant lots and houses built in recent years)” is 4.5 m, while in established areas “the setback shall be up to the front building line of the residential part of a building on adjoining (but not adjacent) land”.

16. Planning Outcomes – Visual Bulk are covered at section 7.7-6, and are as follows:

“Built form accords with the desired neighbourhood character of the area with:

- Side and rear setbacks progressively increased to reduce bulk and overshadowing;

- Site coverage that retains the relatively low-density, landscaped character of residential areas;

- Building form and siting that relates to land form, with minimal land shaping (cut and fill);

- Building height at the street frontage that maintains a comparable scale with the predominant adjacent form;

- Building to the boundary where appropriate.”

17. The requirement at section 7.7-17 deals with open space and landscaping:

“1.The site layout provides open space and landscaped areas which - contribute to the character of the development by providing buildings in a landscaped setting….

2. The landscape design specifies landscape themes consistent with the desired neighbourhood character and vegetation types and location, paving and lighting are provided for access and security.”

Requirements for Childcare Centres

18. The State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 commenced operation on 1 September 2017, after this appeal had commenced. The savings provision at schedule 5 specifies that the Policy does not apply to or in respect of the determination of a development application made under Part 4 of the EPA Act, but not finally determined by the commencement of the Policy: cl 5(1). Nonetheless, the Policy requires the consent authority to take into consideration the regulatory requirements and the National Quality Framework Assessment Checklist set out in Part 4 of the Child Care Planning Guideline in relation to the proposed development: cl 5(2).

19. The Child Care Planning Guideline (the Guideline) was published on 1 September 2017. Relevant provisions appear at 4.9 (corresponding to reg 108 of the Education and Care Services National Regulations) and 4.10 (which provides guidance to the obligation on providers set out at reg 113). These regulations are set out below.

20. The Education and Care Services National Regulations 2016, at cl 108(2), require the provision of 7 square metres of unencumbered outdoor space for each child being educated and cared for by the service. Under that clause, particular areas are required to be excluded from the calculation, as follows:

“Education and Care Services National Regulations (NSW) [2016]

108   Space requirements—outdoor space

(1)  …

(2)  The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space.

Penalty: $2000.

(3)  In calculating the area of unencumbered outdoor space required, the following areas are to be excluded—

(a)  any pathway or thoroughfare, except where used by children as part of the education and care program;

(b)  any car parking area;

(c)  any storage shed or other storage area;

(d)  any other space that is not suitable for children.

(4)  A verandah that is included in calculating the area of indoor space cannot be included in calculating the area of outdoor space.

(5)  An area of unencumbered indoor space may be included in calculating the outdoor space of a service that provides education and care to children over preschool age if—

(a)  the Regulatory Authority has given written approval; and

(b)  that indoor space has not been included in calculating the indoor space under regulation 107.

(6)  In this regulation a reference to a child does not include—

(a)  a child being educated or cared for in an emergency in the circumstances set out in regulation 123(5); or

(b)  an additional child being educated or cared for in exceptional circumstances as set out in regulation 124(5) and (6).

Note.

A compliance direction may be issued for failure to comply with subregulation (2).

113   Outdoor space—natural environment

The approved provider of a centre-based service must ensure that the outdoor spaces provided at the education and care service premises allow children to explore and experience the natural environment.

Example.

The use of natural features such as trees, sand and natural vegetation.

Note.

A compliance direction may be issued for failure to comply with this regulation.”

The Site Visit

21. On the first day of the hearing, I attended the Site, together with the parties’ legal advisors, experts and other advisors (collectively, the Parties). Objector evidence was given by six people on the Site. Their concerns related to the following matters: safety concerns arising from increased traffic; adequacy of parking; noise impacts; inaccuracies in assessment reports; condition of the roads; the “blind corner” where the Site is located; waste storage; and neighbourhood lifestyle.

22. At the Site, the Applicant indicated the boundaries of the Site, its relationship to existing properties and the existing nearby roads (in particular, Molong Road to the east of the Site, and the Northern Distributor to its north), and the location of the proposed stepped retaining wall along the Northern Distributor Road.

23. The topography of the land was also pointed out, particularly with respect to the position and height of the proposed retaining wall, and the Site’s relationship to the properties at number 142 Turner Crescent and 159 Molong Road.

24. The Parties then walked along Turner Crescent in a north-westerly direction, and took the opposite path in a south-easterly direction. This afforded the opportunity to see what the objectors have described as a blind spot created by the angle of Turner Crescent, the point at which the entrance to the proposed development will be located. Being located on a curve in the road, cars travelling along Turner Crescent on either side of the Site do not have a clear line of sight to traffic approaching from the opposite direction. (One objector described a near miss between a car and a garbage truck.)

The Issues in Dispute

25. The Council’s reasons for refusal of the development relate to: unacceptable traffic impacts; unacceptable noise impact; unacceptable privacy impact; unacceptable impact on amenity; visual impacts; overdevelopment of the Site; compliance matters raised by the SEPP (Educational Establishments and Child Care Facilities) 2017; matters raised by objectors and the public interest generally: Statement of Facts and Contentions, Ex 8, Part B.

26. At the commencement of the hearing, the Applicant sought leave to rely upon amended plans, which it submitted would narrow the matters in dispute. The Council did not oppose this and leave was granted. These plans became Ex D (Amended Architecture Plans), Ex E (Amended Landscape Plan) and Ex F (Schedule of Amendments).

27. As a result of orders made at the conclusion of the hearing, the Applicant filed further plans, which provided more detail with respect to the front setback, as well as landscaping and outdoor play space.

28. The Council's contentions with respect to noise are no longer pressed, as this issue has been resolved through draft conditions of consent, which conditions the Applicant has indicated it will accept. The contention with respect to privacy has also been satisfied, having been addressed through amendments to the plans (in particular, increasing the height of the fence between the Site and 42 Turner Crescent, and lowering the car park).

The Evidence

29. Experts for the Applicant were Mr Pocock (Planning) and Mr Hollyoak (Traffic) while for the Council, Ms Hyde (Planning) and Mr Pindar (Traffic) provided evidence. Their individual expert reports are Exhibits A (part), B, 1 and 2 respectively. A joint expert planning report was prepared (Ex 5), as well as a joint expert traffic report (Ex 6). Before considering the evidence, I make the following observation with respect to permissibility of the proposal.

Permissibility of the Proposal

30. Prima facie, the Centre is a permissible use in the zone, with consent, under the Orange LEP. This is not in contention. Both town planning experts agree that the Site is suitable for a child care centre from a planning perspective, but amendments are required to suitably address the impacts of the development: Ex 5 at [38]. The Council’s planning expert, Ms Hyde, also agreed that there is no alleged breach of numerical controls within the DCP. Ms Hyde also conceded in cross-examination that any child care centre would alter the function of the street, and to some extent the residential character. However, she maintained her position that while a childcare centre is appropriate in the zone, one of this size is not.

31. The fact that a development is permissible within a zone is not the end of the matter, as it must still be assessed, taking account of relevant matters including submissions and planning controls. It is to these matters that I now turn.

The Planners’ Evidence

32. The planning experts provided evidence with respect to the Council’s contentions as to impacts on privacy, amenity, visual impact and overdevelopment, including the location and calculation of outdoor play space.

Privacy and Amenity; Visual Impacts

33. Ms Hyde for the Council and Mr Pocock for the Applicant disagree as to whether the current layout and design of the Centre integrates with the surrounding residential area and is compatible with the residential character of the area.

34. The Council’s expert says that the use of the front setback area and fencing along the front boundary is not consistent with and would be out of character with the surrounding residential development which provides soft landscaping to the front setback. The proposed structures in the front setback are inconsistent with the rhythm of open front yards and setback built form along Turner Crescent.

35. Further, Ms Hyde says that the scale of the proposed building, with a long and bulky unbroken roof form, is significantly larger than other dwellings in the area which is not consistent with the low density residential character of the area. That character is comprised of dwellings with modulated roof forms broken into multiple pitches with hips and dutch gable roofs. The design element of the roof, with alternating roof panels of different colours and materials, does not provide a compatible building outcome in comparison with the residential character of the area.

36. The Applicant’s expert points to the single storey building structure, with the overall height being compatible with two storey residential development in the locality. In his opinion, the bulk and scale is considered compatible with neighbouring residential development by virtue of the architectural design and detailing with external materials including a mixed palette of materials and finishes which reflect those of neighbouring dwellings. External walls include a combination of face brick, rendered and painted masonry block work, horizontal weatherboard profile cladding and horizontal express jointed cladding. External wall heights and window fenestration is characteristic of domestic architectural forms.

33. The roof comprises a 25 degree gable pitched colorbond roof form consistent with the pitch and materials of residential development in the locality. It incorporates a series of irregularly spaced recessed sections of alternative roof material which appropriately breaks up the expanse of roof into a series of smaller sections reducing the perceived massing, providing visual relief and interest to the building.

34. Mr Pocock also says that the Centre will not form part of the established streetscape due to the considerable setback from the Site frontage and will not be visually prominent within the Turner Crescent streetscape due to the narrow and curvilinear frontage and partial battle-axe/corner configuration of the allotment. While the building is 65m long, the entirety of the roof line will not be visible from many vantage points.

35. The experts also differed in their opinion as to the impact of the development on likely future development at 159 Molong Road. The Council’s expert opined that instead of facing Molong Road, which it presently does, a likely future development on that site would see a development flipped to face Turner Crescent. Mr Pocock’s response is that 159 Molong Street is not part of the Turner Crescent streetscape. He also dismisses concerns about future development of that property as a potential dual occupancy as speculative.

Finding

40. There were differing opinions as to whether the building would read as 1m or 2m higher than surrounding development. A photomontage or height poles with a rope line would have been of assistance in this respect. While it is a one storey development, the building’s height is significant. It will be much larger and higher than the surrounding development. The building will be at least 2m taller than nearby dwellings, regardless of whether it will read as 1 or 2 m higher. A substantial amount of the bulk of the building is contained in the roof. No evidence was provided as to why the roof needs to be such a prominent feature of the development. While it is true that a development does not have to be identical to nearby properties to be compatible, because of the factors set out above I find that the bulk and scale of the proposed development is of such a nature as to be inconsistent with the residential character of the area. This lack of consistency caused by the roof form adding to the bulk and scale is one element contributing to warranting refusal.

41. On the other hand, I am not persuaded that the current development on, or any possible future development for, the adjoining property at 159 Molong Road would be so affected by the proposed development as to warrant refusal of development consent. In any event, this is not called up for specific consideration

Visual Impacts on Streetscape: use of fencing and building design

42. The experts agree that the adjoining properties have setbacks of 7m (42 Turner Crescent) and 10.5 m (to the garage at 159 Molong Road). The front setbacks are generally compromised of soft landscaping with no front fencing.

43. The experts disagree on whether the established building line in a residential street should be considered in addition to the numerical Orange DPC control (4.5 m for new residential areas). They disagree on visibility of the setback and whether the corner location of the Site is a focal point when travelling along Turner Crescent, or whether the Site is hidden from view by adjoining properties.

44. The Council’s expert says that the relevant setback is not 4.5 m, as this is an established area, but is derived from the adjoining properties, at 42 Turner Crescent and 159 Molong Road. Ms Hyde says existing setbacks add to residential character of the area. Existing prevailing landscaped setbacks give the area an open and spacious feel, which contributes to the low density residential character of the area. Surrounding development is unlikely to change, and should therefore be a relevant consideration in establishing the building line. The location of the site on a corner will emphasise the irregularity of the proposed setback in comparison with adjoining developments. The property is the focal point for view lines when travelling along Turner Crescent. Moreover, location of fencing and use of front setback area is not consistent with the intended planning outcome of the Orange DCP.

45. Mr Pocock’s opinion is that the Site is not visually prominent due to its narrow and curvilinear frontage and battle-axe configuration. The overall site is only visible via a relatively narrow view corridor from adjacent to the site frontage. Viewed from the southern end of Turner Cres (towards Mastronardi Way) the site is largely obscured by 159 Molong Road. Viewed from the west, only the most southerly portion is generally visible. Planting will make positive contribution to the streetscape through the use of mature trees and native screen planting.

Finding

46. I find that the proposed development is inconsistent with the existing setbacks, and is therefore at odds with the residential character of the area. I find that, consistent with the Orange DCP as it relates to established areas, the relevant setback is to be taken from the adjoining properties. Even if I am wrong in this and the numerical control of 4.5 m is the relevant setback, the presence of the play equipment behind the 4.5m line and the picket fence is inconsistent with the open and spacious feel demonstrated by the existing prevailing landscaped setbacks. The necessity for play equipment in the front setback arises from the number of children to be catered for at the Site. With a smaller number of children, this intrusion would not be necessary.

47. While arguments were made both ways as to whether the Site would be visually prominent, given its location on the curve of Turner Crescent, there is still a frontage of 17m to that street, from which the substantial development would be visible, resulting in an unacceptable visual impact. The building height at the street frontage does not maintain a comparable scale with the predominant adjacent form, nor is there site coverage which retains the relatively low-density, landscaped character of residential areas. The development thus does not satisfy the planning outcomes for visual bulk in the Orange DCP.

48. With respect to the ability of existing vegetation on 159 Molong Road to screen the building from view, in submissions the Council relied upon the proposition enunciated in the case of The Super Studio v Waverley Council [2004] NSWLEC 91 at [6], that where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. This approach was followed by Tuor C in Krsolvic Homes Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 192 at [38] and [39]. In short, the Council’s position is that if the property at 159 Molong Road is redeveloped, to the extent that the present landscaping is relied upon to soften the impact of the proposed development, it will not be there. While this is not a major factor in my finding that the development will have an unacceptable visual impact, it adds to the evidence against approval of the development because the Site itself cannot provide sufficient screening on a stand-alone assessment basis.

Visual impacts – building design and presentation

49. While the experts generally agree on the presentation of the building they disagree on whether the building will be visible in the streetscape as viewed from Turner Crescent and whether due to site configuration, the building would be considered as an isolated development or viewed as part of the residential housing estate.

50. Ms Hyde says the building will be visible within the streetscape. The base level of the building is likely to be screened by adjoining properties, fencing and landscaping along the ground level. Visual impacts related to overall building height could be better addressed through a lower and/or broken up roof form to more sympathetically blend with the surrounding low density development. The current roof design is pitched with a height above the ceiling line of 5 m resulting in a relatively tall building despite being single storey in height. An amended roof design including modulation would better integrate with the residential character of the area.

51. Mr Pocock repeats his opinion that the Site and the Centre are not visually prominent due to the narrow and curvilinear frontage and partial battle-axe/corner configuration of the allotment. The whole Site is only visible via a relatively narrow view corridor from adjacent to the site frontage. Viewed from the south, the Site is largely obscured by the residential dwelling and garage at 159 Molong Road. Viewed from west, only the most southerly portion of the proposed building will be visible.

Finding

52. I find that not only will the building be visible within the streetscape, it will do so in a manner which is visually intrusive. While the roof pitch and material is not inconsistent with the rest of the street, the roof is significantly larger than that of neighbouring residential dwellings. The use of different sections to reduce the perceived bulk does not negate the fact that the building remains relatively tall. Its scale is not sympathetic to the surrounding low density development.

53. The Council has described the building as “monolithic”, acknowledging that some attempt has been made to break up the roof form, but the dropping of the car park (to reduce the impact on next door) has had the effect of making the building more prominent from the west. It may be one storey in terms of function, but has the appearance of close to two storeys.

54. The Applicant’s position with respect to visual bulk is that the fact that you can see the building does not mean it will dominate; it is generally in keeping with bulk and scale within the locality; and it does not need to be identical to be compatible. I do not accept these arguments, finding that it is both excessive in bulk and visual impact because of the longer and higher built form. The length of the built form arises from the number of children to be accommodated. A smaller development catering for fewer children would not be as intrusive. Further, lowering of the roofline in a smaller development might resolve these negative impacts, but that would be a matter for consideration if a revised design were to be submitted to the Council.

Overdevelopment and Outdoor Play Space

55. The Council’s view is that the front setback should not be included in the calculation of unencumbered outdoor space, as the visual impacts on the streetscape will be out of character with the surrounding residential areas.

56. The Applicant disagrees, provided that no sail shades are erected within the setback. Its position is that the erection of play equipment is considered suitable and appropriate in the circumstances of the case. The outdoor play space will be positioned approximately 1m lower than the street front boundary, and the maximum width at the front boundary is 8 m and will be partially screened by the front boundary fencing, which will be set back 4.5m from the street, based on the updated plans. Mr Pocock conceded that the existence of play equipment (even below street level) would be different from the rhythm of the area, but would not have a significant impact on the streetscape.

57. The issue of outdoor play space was the subject of further evidence. At the conclusion of the hearing, I ordered further evidence to be provided and submissions made to address the matter of the provision of outdoor space, in view of the requirements of the new SEPP. Amended plans provided the area and calculation of outdoor play space, further information on proposed landscaping and setting out the proposed treatment for the setback facing Turner Crescent, amongst other things. The proposed centre is shown below, with Area 1 in the south east corner, and area 2 to the north.

58. Supplementary reports were prepared by Mr Pocock and Ms Hyde after those amended landscape plans had been filed. According to Mr Pocock in his Supplementary Expert Report, the amount of play space said to be provided is set out in the table below.

Outdoor Play Area	Number of Children	Unencumbered outdoor space required	Unencumbered outdoor space provided
1	32	224	273
2	92	644	655
868	928

Source: Licensing Area Plan L01, Rev D and associated Licensing Area Schedule L02 detailed in Table 1.

59. In referring to the updated landscape plans, Mr Pocock expressed the view that he was satisfied that the designated area of “outdoor play space” complies with cl 108(2). The Southern Open Space (Area 1) comprises a variety of play equipment and combination of soft and hard landscaping elements. Specifically, Mr Pocock expressed satisfaction that the nominated play area does not include “any other space that is not suitable for children” and which should therefore be excluded from the calculation of the unencumbered area; and is satisfied that the outdoor space complies with sections 4.9 and 4.10 of the Childcare Planning Guideline.

60. Mr Pocock suggests a reduction of the amount shown in Area 2 to allow for screen planting of “mature stock evergreen trees”. The area with a dimension of 10.3m x 0.6m is proposed to be removed from the calculation. This should be removed, he says, as the schematic landscape representation suggests it is an impenetrable barrier and inaccessible to children, which means it should not be considered. The total amount removed from the calculation to allow for landscaping is thus 6.18sqm, which leads to Area 2 of the proposed development exceeding the requirement for unencumbered space by 4.82sqm. As the width of the strip of screen planting is not specified on the plan, Mr Pocock has recommended that a condition be included which limits the width of the screen planting to no more than 750 mm from a point aligning with the western elevation of the outdoor store to the alignment with the eastern face of the covered verandah.

61. Ms Hyde has arrived at a significantly different conclusion. She has declined to include in the calculation of outdoor play space the area where certain areas of planting are included, including perimeter planting and the “picking yard”. The picking yard area, of some 52sqm, is not “open on at least one third of its perimeter” and does not satisfy the design criteria.

62. Moreover, the licensing plan, which identifies the provision of 945sqm of outdoor play space as being available, relies upon the removal of perimeter landscaping to achieve the outdoor play space requirement. According to Ms Hyde:

“the inclusion of perimeter planting is considered reasonable and necessary to assist in minimising the visual impacts of the development and provide separation between uses. This is particularly due to the location of the site at a prominent location (intersection of Molong Road and Northern Distributor Road), the elevated position of the site as a result of the earthworks and the need to buffer the adjoining residential development to the south at 159 Molong Road”: Supplementary Statement of Evidence, 27 October 2017 at [4.22].

63. Ms Hyde concludes that while the licensing plan demonstrates that a sufficient amount of outdoor play space has been provided, she considers that the development should provide landscaping around the Site, as had been the plan previously, to mitigate the impacts of the development. Her opinion is that the loss of landscaping to achieve the numerical outdoor play space requirement is not a satisfactory outcome for the development.

64. Ms Hyde opines that the licensing plan relies upon the following elements in the calculation of outdoor space: the use of areas that do not meet the Guideline (such as the covered picking yard); the deletion of landscaping previously proposed around the perimeter of the site to soften the appearance of the development and buffer the use from the neighbouring residential development; and the non-inclusion of the tiered retaining wall along the northern and eastern boundaries which form a draft condition of consent.

65. According to Ms Hyde’s calculations, based on the inclusion of a 1 m wide landscaping buffer around the permitter of the play space, approximately 85sqm of outdoor play space area would be lost, in addition to the covered picking yard of 52 sqm, a total of 137 sqm. The resulting unencumbered outdoor play space is 808sqm. Based on that calculation, Ms Hyde’s figures show the correct calculation to be an amount of open space equal to 7sqm for 115 children, or 6.5 sqm for 124 children.

Submissions from the Council

66. The Applicant’s amended plans showing the calculation of outdoor space included (on their face) removal of screen planting around the eastern and northern perimeter of the Site to achieve a more unencumbered outdoor play space. The Council submits that as landscaping on boundaries is particularly important given the prominence of the Site and the visual bulk of the building, the Applicant should not be permitted to achieve compliance with the Guideline at the expense of providing appropriate landscaping: Submissions at [5]. In addition, the Applicant’s inclusion of the picking yard in the calculation of outdoor play space is not permitted, as it does not meet the requirement of being open on at least one third of the perimeter.

67. The Council’s position is that notwithstanding that compliance with the Guideline is not mandatory, it should be a central consideration. It is unreasonable for the Applicant to provide less than the minimum play areas on a large site in a low density residential environment, when it could easily reach this requirement by reducing the number of children to be accommodated in the centre.

Submissions from the Applicant

68. The Applicant says that the perimeter planting is intended to be accessible to children and form part of the play environment, which is apparent from the landscape plans.

69. Ms Hyde objects to the picking yard being included in the open space calculation on the basis that it is not open on at least one third of its perimeter. The Applicant has agreed to a condition to address Ms Hyde’s concern about the picking yard. The picking yard perimeter condition adds 52 sqm to Ms Hyde’s calculation, or a total of 860 sqm. Given that the Guideline requires 868 sqm, the Applicant says that the outdoor space provision is so close to the Guideline (within 8sqm) as to effectively comply with it.

Finding

70. At the time the application was lodged, the Education and Care Services National Regulations 2016 applied, which included a provision regarding the amount of unencumbered outdoor space to be provided. The Regulations and the Guideline identify a minimum of 7sqm of unencumbered outdoor play space. Based on 124 children, a total outdoor play space of 868sqm is required.

71. I accept the Applicant’s submissions with respect to the requirement for outdoor space that the transitional requirement under the SEPP for consideration of the Guideline is not a requirement for compliance, but requires the matter of outdoor space to be taken into account. The Applicant presses that compliance with the Guideline is not a determinative matter. Nonetheless, I find that considerable weight should be placed upon it.

72. The Applicant argued that the Statement of Environmental Effects (contained at Ex A) did not refer to the SEPP (which had not commenced) but noted that the proposed development would result in more than 7sqm of play space per child, the same as the amount required under the SEPP.

73. While making no finding as to whether the application as originally submitted provided for 7sqm of play space per child, for the sake of completeness I confirm that I am satisfied that the Council’s contention (number 12) regarding the issue of whether or not the Applicant had considered the regulatory requirements required by the SEPP has been met, in that these matters have been duly considered, if not by the material filed with the original application, then as a result of the further material filed subsequent to, and material considered during, the hearing.

70. Having reached the necessary satisfaction as to the procedural aspect, I turn to the merit question raised by the requirement for outdoor space.

71. The Guideline (draft at the time of the DA lodgement) notes with respect to landscaping that “appropriate planting should be provided along the boundary integrated with fencing. Screen planting should not be included in calculations of unencumbered outdoor space”: C18, Guideline p.15. Further design guidance, contained within the Child Care Planning Guideline at 4.9, includes the statement that calculating unencumbered space for outdoor areas “should not include areas of dense hedges or plantings along boundaries which are designed for landscaping purposes and not for children’s play”.

72. While I find that a shortfall of 8sqm is not of such an amount as to found a non-compliance with the SEPP warranting refusal, the fact that the space has been calculated without including the area taken up by the landscaping (save for the excision of the hedging in proximity to the store room in Area 2) is suggestive of the fact that the proposal is an overdevelopment of the Site. The Applicant is able to achieve the 7sqm per child only through calculations which do not include the area taken up by landscaping such as mature trees and tall conical tree species in Area 1 and part of Area 2 (albeit that they are notated as having “play opportunity beneath”). A less intense development would result in more outdoor space for children attending the Centre.

The Traffic Evidence

Traffic Generation: Unacceptable Impacts on the Residential Character of the Neighbourhood?

77. In their joint report [Ex 6] , the traffic experts agreed that:

• the traffic count on Turner Crescent recorded 43 vehicle movements per hour in the AM peak and 46 movements per hour in the PM peak. The volume of traffic travelling along the Site frontage (that is, up the eastern side of the loop road) will be lower than this as the recorded traffic will divert to reach their dwellings, resulting in 26 vehicle movements per hour in peak periods.

• The estimated number of traffic movements for a child care centre is 99 in the AM peak and 88 in the PM peak, comprising both in and out movements. This is about 50 vehicles per hour.

• The Environmental Capacity performance standard for a local road as set down in the RMS Guide to Traffic Generating Developments provides a standard of 200 vehicles per hour as desirable, and 300 vehicles per hour as a maximum. The Guide also discusses alternative threshold levels such as the threshold at which children play in the street or when aged pedestrians can safely cross a street. The Guidelines acknowledge that residents on different types of streets would be expected to have different expectations: Joint Expert Traffic Report, Ex 6 at [1].

78. Mr Hollyoak presses that the traffic generated by the development will not reach the environmental capacity for a road such as Turner Crescent. The RMS Guide points to a limit of 300 vehicles as the upper limit, below which aged pedestrians can safely cross the average street. That can easily occur here, with the result that the level of amenity on Turner Crescent following the introduction of a 124 place childcare centre would therefore be considered to be acceptable: Ex 6 at p. 3.

79. For the Council, Mr Pindar says that the ability of aged persons to cross any particular road is not a relevant matter for consideration under this application. Further, while the traffic volume may be retained below the “nominal” 200 vehicles per hour maximum environmental goal, that is not to say that residents in a very quiet local street, where children can presently play in the street (there being no footpaths), should not be allowed to continue to do so. This is an issue of the reasonable expectation of the residents which is a subjective matter: Ex 6 at p.3.

Traffic Arrangements will have unacceptable impacts on pedestrian safety in a residential setting

80. The experts agree that the car park layout requires further clarification, and there are no footpaths currently provided on Turner Crescent in the immediate vicinity of the Site: Ex 6 at p.4.

81. Mr Hollyoak has set out why he says there will be no significant further impact on the road safety of any children or pedestrians in Turner Crescent, which includes the following reasons: the Centre will generate 9 parents walking to the Centre during the peak period (5 per hour); the pedestrian count reveals 5 pedestrians per hour walking along Turner Crescent; the traffic increase is less than 2 movements per minute – one in and one out of the Centre; the level of traffic will not significantly increase the risk to pedestrians compared to that which is already occurring; the proposed layout provides adequate lines of sight to pedestrians; and it is not necessary for visitors to park kerbside to access the Site.

82. The experts had different views on four safety concerns raised by Mr Pindar.

Requirement for a footpath in front of the Centre

83. Mr Pindar says that parents will, for the sake of convenience, park on the street. They would benefit from a formed footpath across the Site frontage. Parents with prams would also benefit from a footpath to access the main internal pedestrian footpath. Moreover, based on the “cricket pitch test”, it remains safer for pedestrians to walk on the road at volumes of 90 vehicles per hour, than walk on the road at volumes of 200 vehicles per hour. A more extensive footpath system is required.

84. Mr Hollyoak disagrees that a footpath is required across the entire frontage of the Site. Given the number of pedestrians using the Site frontage, the provision of a short discrete 20 m section of footpath would not serve any useful purpose. The driveway will be easily seen and easily understood by pedestrians. The requirement for a more extensive footpath network to be provided by the Centre is not justified.

A median is unnecessary outside the Centre in Turner Crescent

85. Mr Pindar opines that a median is unnecessary; however it resolves an issue created by the Centre. A double painted barrier line would be sufficient. However, he will defer to Council’s Traffic Committee.

86. Mr Hollyoak is of the view that the provision of the median addresses a potential safety issue in a way that a barrier would not. It will ensure that the vehicle turning right into the Centre does so at a location where adequate sight lines have been achieved, so opposing vehicles can see and be seen.

The parent/carer car park spaces should be Class 3A spaces

87. Below is an extract from the “Classification of Off-street Car Parking Facilities”, Table 1.1 of AS 2890.1 (extracted from Ex 2) to provide context for the discussion on the correct standard to be applied for parking arrangements.

User Class	Required door opening	Required Aisle width	Examples of Uses
3	Full opening, all doors	Minimum for single manoeuvre entry and exit	Short-term city and town centre parking, sports facilities, entertainment centres, hotels, motels, airport visitors (generally medium-term parking)
3A	Full opening, all doors	Additional allowance above minimum single manoeuvre width to facilitate entry and exit	Short term, high turnover parking at shopping centres

88. Mr Pindar says the 5.8m wide aisle (provided under Class 3 measurements) is inadequate to ensure convenient access to parent/carer spaces. A non-compliant substandard design will increase the propensity of parents and carers to park on the street. Class 3A is the appropriate class for a child care centre, being short term high turnover parking. The set-down pick up spaces should be either 2700 mm wide with a 6200 mm wide aisle; or 2600 mm wide with a 6600 mm wide aisle. This will require a redesign of the proposal, which may raise other issues. Class 3 is not best practice and is only appropriate in cities and towns where land values are a factor to achieve a more economical design.

89. Mr Hollyoak says that the layout of the car park and the size of the spaces has not been raised as a specific issue in the contentions. Moreover, many councils are content with class 3 spaces which allows a 2.6 m wide space with a 5.8 m wide aisle. The [then] draft Child Care Planning Guideline (2017) notes that “all parking except for designated staff spaces are to have the width of the parking spaces to comply with User Class 3 in section 2.4 of AS2890.1:2004 Parking Facilities – Off street parking”. The proposed spaces are 2.6m x 5.4m long with an aisleway of 6.3m which is in excess of the Australian Standard requirement for Class 3.

The turning area should be a minimum width of 3.5m

90. Mr Pindar’s opinion is that a 3.5 m turning area is required to enable a simple three-point turn, rather than requiring five exit manoeuvres to be undertaken.

91. Mr Hollyoak’s position is that whilst again noting that the car park layout is not the subject of a separate contention, it is the intention that deliveries (using a vehicle such as a B99 Toyota Hiace type-van) are intended to occur out of peak times, when there will be spare parking spaces, making manoeuvres much easier to achieve. The delivery hours could be conditioned. Deliveries occur infrequently and can be managed.

Findings

92. Turning firstly to traffic impacts on the residential character of the neighbourhood, under the RMS Guide, Turner Crescent has the capacity to accommodate the expected number of traffic movements. There is some difference between the experts as to the appropriateness of the RMS Guide. For the Council, Mr Pindar expressed the view that while the nominal threshold may be met, this is a threshold used as a planning tool, and is related to noise impacts. A more nuanced approach is required, taking account of the expectations of residents. However, I accept the Applicant’s submission that that is the correct standard to be applied, and any other number would be an arbitrary one. Once again, numerical satisfaction is not the end of the matter.

93. The primary difference between the parties relates to amenity: the residents’ expectation is for a quieter existence similar to what they have experienced thus far; while the Applicant says there is no principle of planning law that says that the status quo should not change.

94. I accept that were the development to proceed, the residents’ amenity would not be as it has been before. While falling strictly within the RMS Guide, the increase of traffic movements is nonetheless an increase of five times above the present number of traffic movements. The RMS Guide acknowledges that residents on different types of streets would be expected to have different expectations. It is clear from the evidence of the objectors that their expectation is not to have the kind of traffic that a development of this size would generate. Taken alone, the increase in traffic would not be such as to cause me to refuse the development. However, in combination with other merit considerations, the significant increase in traffic movements, even if not unsafe, would result in a significant worsening of residential amenity.

95. This is another indicator that the intensity of the development is such as to be an overdevelopment of the Site. As I have earlier observed at [54] a smaller development might be acceptable, as it would not generate as great an increase in vehicle movements to the Site.

96. Turning to the other matters raised in relation to traffic, while it is somewhat moot, given my other findings, I do not agree that a footpath should be constructed outside the Centre, preferring as I do Mr Hollyoak’s evidence that it would be of little benefit. I find that the provision of a discrete 20 m section of footpath would not serve any useful purpose due to the prominence of the driveway.

97. I find on the evidence that there are no pedestrian or other safety impacts arising from matters to do with traffic which would cause me to refuse consent. The safety impacts are separate from amenity impacts discussed above.

98. With respect to the median, the need for a median indicates that the impacts of the proposed development are such that an unusual intervention in a quiet residential street is required to ameliorate those impacts. Mr Pindar for the Council did not believe it was necessary, but stated that it would resolve an issue created by the Centre itself. The desirability of this structure arises, at least in part, because of the intensity of the development.

99. Turning to the question of whether or not Class 3 is the appropriate class for parking measurements in this development, if the provision of Class 3 and not Class 3A parking were the only impediment to the development’s receiving consent, I would find the provision of Class 3 parking to be acceptable. While Mr Hollyoak conceded that a Class 3A standard would provide a safer outcome, he did not agree that it was necessary to provide it, as Class 3 is considered to be acceptable for child care centres. However, it is desirable to have Class 3A as the appropriate car park design, because as Mr Hollyoak concedes, it provides a safer design. With the number of children proposed for this development (124) this would be a useful safety measure arising from the intensity of the design. The inability of the car park to provide this measure is a further indication that what is proposed is an overdevelopment of the Site.

100. When taken together with the other findings I have made in this judgment, the inability of the development to satisfy the Class 3A standard is further evidence of overdevelopment of the Site.

101. For the sake of completeness, based on the proposed delivery operations, I find that no change is required for the turning area in the car park.

Matters raised by the Residents

102. In its submissions, the Applicant addressed two matters which were raised by the residents, and not by the Council. The first is that because there may have been an alternative design of the Centre with an entry from Molong Road, it is not appropriate to have this design.

103. I am satisfied that it is not possible for this to be a design solution given the presence of council-owned land. I accept the proposition put by the Applicant, as set out by Pain J in Gilbank v Bloore (No 2) [2012] NSWLEC 273 that the development which is to be assessed is the one for which application has been made. In any event, this is an option which was earlier ruled out in discussions between the Applicant and the Council, as while egress may have been possible, ingress would still be required via Turner Crescent.

104. The second matter related to future development on other sites. There are certain circumstances where it is appropriate to consider this, particularly where there are questions of desired future character. However, in this case, I find that it is unnecessary, and unhelpful, to make a guess about what may happen in the future on adjacent vacant sites. Desired future character will be informed and guided by the provisions within the Orange LEP and Orange DCP.

Final Remarks

105. I agree with the statement from the Applicant’s expert that the Site’s characteristics, particularly its location within Turner Crescent, provides the freedom to do something different. It has unusual proportions as well as constraints arising from the location of the public recreation zone. The problem with the “something different” proposed by the Applicant is that there is in my view simply too much of it.

106. The controls in the Orange DCP, which speak to the preservation and enhancement of the residential character, are necessarily somewhat at odds with a development which is not residential, such as a child care centre. While a child care centre will not be entirely consistent with residential use, it does not have to be so inconsistent with it as this proposed development is. A lower scale development would be more respectful of residential character. I find that the proposed development pushes the Site beyond its capacity. A less intense use, as has been advocated by the Council, would potentially also have the effect of removing children and play equipment from the front setback, which would increasing the development’s compatibility with the surrounding residential area. A smaller centre would meet the day to day needs of residents as contemplated by the objectives of the zoning. It could also allow for more generous parking arrangements, and result in an overall less intrusive and more compatible development. A smaller, lower, less bulky building (or buildings) could be placed on the Site so as to reduce visual and other amenity impacts, including traffic movements.

107. There is no single reason warranting refusal of development consent, but because of the accumulation of the deficiencies I have outlined, these taken together result in my decision to refuse consent for this development.

108. I am required to assess the development before me. Having weighed the evidence carefully, I conclude that while a child care centre could be a suitable development for the Site, for the reasons set out in this judgment, this one is not. Accordingly, consent is refused.

Orders

109. The Orders of the Court are:

1. Leave is granted to the Applicant to rely upon Amended Architecture Plans (Exhibit D), Amended Landscape Plan (Exhibit E) and Schedule of Amendments (Exhibit F).

2. The appeal is dismissed.

3. Development Application No 63/2017(1) at Lot 194 DP 1007290 known as 36-40 Turner Crescent, Orange for the construction and operation of a childcare centre is determined by refusal.

4. The Exhibits, save for Exhibits 2, 5, 6 and 8, are returned.

……………………………………………

Senior Commissioner Martin

Decision last updated: 21 December 2017