Australian Childcare Solutions v Orange City Council

[2018] NSWLEC 93

Land and Environment Court

New South Wales

Medium Neutral Citation:	Australian Childcare Solutions v Orange City Council [2018] NSWLEC 93
Hearing dates:	14 June 2018
Date of orders:	20 June 2018
Decision date:	20 June 2018
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	(1) The appeal is dismissed. (2) The applicant is to pay the respondent’s costs of the appeal.
Catchwords:	APPEAL – appeal against Commissioner’s decision on questions of law – refusal of development consent for childcare centre – whether Commissioner misdirected herself and asked the wrong question in construing provisions of development control plan – whether Commissioner substituted her own test for the test in development control plan – Commissioner did not err on question of law in construing and applying development control plan
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 79C(1) Land and Environment Court Act 1979 s 56A(1)
Cases Cited:	Australian Childcare Solutions Pty Ltd v Orange City Council [2017] NSWLEC 1737 Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Category:	Principal judgment
Parties:	Australian Childcare Solutions (Applicant) Orange City Council (Respondent)
Representation:	Counsel: Mr CJ Leggat SC (Applicant)  Ms J Walker (Respondent)    Solicitors: Holding Redlich Lawyers (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	2018/52835
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Land and Environment Court of NSW Jurisdiction: Class 1 Citation: [2017] NSWLEC 1737 Date of Decision: 21 December 2017 Before: Martin SC File Number(s): 2017/248500

Judgment

Nature of appeal and outcome

1. Australian Childcare Solutions (‘ACS’) lodged a development application with Orange City Council (‘the Council’) for consent for a childcare centre in a residential area at 36-40 Turner Crescent, Orange (‘the site’). The Council refused the development application. ACS appealed to the Court. The appeal was heard by Martin SC, who delivered judgment on 21 December 2017, dismissing the appeal and refusing the development application: Australian Childcare Solutions Pty Ltd v Orange City Council [2017] NSWLEC 1737.

2. ACS appealed against that decision under s 56A(1) of the Land and Environment Court Act 1979 (‘the Court Act’). An appeal under s 56A(1) is limited to error on a question of law. ACS raised as grounds of appeal that the Senior Commissioner erred in law in two ways:

1. misdirecting herself and asking herself the wrong question in construing the provisions of cl 7.7 of the Orange Development Control Plan 2004 (‘Orange DCP’); and

2. misdirecting herself and asking herself the wrong question when determining that a class 3A standard car park design was required to be provided, and accordingly failed to take into consideration the traffic impacts of the development as required by the former s 79C(1)(b) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’).

3. I find that ACS has not established the Senior Commissioner erred on a question of law in the ways contended for by ACS. The appeal should be dismissed with costs.

Misconstruction concerning cl 7.7 of Orange DCP

4. In hearing the appeal, the Senior Commissioner, exercising the functions of the consent authority, was required to take into consideration any development control plan of relevance to the development the subject of the development application (s 79C(1)(a)(iii) of the EPA Act). The applicable development control plan in this case was the Orange DCP. Chapter 7 of the Orange DCP deals with development in residential areas. Section 7.1 addresses planning for residential areas. The section opens with the statements:

“The emphasis of planning under Orange LEP 2000 and this associated DCP is for new development to positively contribute to the highly-valued character of the City. Achieving this requires that development recognises and addresses the features of each area.

In established areas, the character has already been defined. New development should clearly relate to the existing development pattern of the neighbourhood.”

5. Section 7.5 calls for a merit-based approach to residential development in Orange. The section provides in part:

“A merit-based (or performance) approach to residential development focuses on achieving planning outcomes rather than prescriptive or numerical (often minimum) standards. In this Plan, numerical standards are mainly used as a guide.

…

The merit-based approach to development permits designers to respond to the individual opportunities and constraints of each site. This means that planners and designers can respond more flexibly to local conditions, both in terms of a site’s potential and its impact on neighbourhood character (NSW Model Code).

This Plan promotes a comprehensive approach to site planning, design and assessment for urban-residential development. This requires careful analysis of the site’s character (opportunities and constraints to development) and the following design elements:

• Streetscape

• Energy Efficiency

• Bulk and Scale

• Privacy and Security

• Site Access and Circulation

• Water and Soil Management

• Open Space and Landscaping

• Site Facilities

Development must be able to demonstrate to Council that it achieves the objectives and planning outcomes for these design elements.”

6. Section 7.7 of the Orange DCP is entitled “Design Elements for Residential Development Streetscape” and specifies particular design elements such as neighbourhood character, building appearance, setbacks, visual bulk and open space and landscaping. The section specifies objectives and planning outcomes for each design element. The Senior Commissioner referred to the planning outcomes for three design elements: setbacks (cl 7.7-4), visual bulk (cl 7.7-6), and open space and landscaping (cl 7.7-17): see [15]-[17] of the judgment.

7. ACS contended that the Senior Commissioner misconstrued the provisions of Orange DCP for two of these design elements, setbacks in cl 7.7-4 and visual bulk in cl 7.7-6.

Misconstruction of cl 7.7-6

8. I will start with the design element of visual bulk in cl 7.7-6. The design element of visual bulk is one of four design elements relating to bulk and scale. Section 7.7 states the objectives of these bulk and scale design elements (‘the Bulk and Scale Objectives’) as being:

“1 To allow flexibility in siting buildings and to ensure that the bulk and scale of new development reasonably protects the amenity of neighbouring properties and maintains appropriate neighbourhood character.

2 To allow adequate daylight, sunlight and ventilation to living areas and private open spaces of new and neighbouring developments.

3 To encourage the sharing of views, while considering the reasonable development of the site.”

9. Clause 7.7-6 then provides:

PO 7.7-6 PLANNING OUTCOMES – VISUAL BULK

1 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 development form;

- building to the boundary where appropriate.

GUIDELINES

These guidelines indicate ways of achieving the planning outcomes. It Is recognised that there may also be other solutions. All design solutions will be considered on merit. Applications should clearly demonstrate how the planning outcomes are being met where alternative design solutions are proposed.

a Buildings are contained within an envelope generated by planes projected at 45^o over the site commencing 2.5m above existing ground level from each side and rear boundary.

b Buildings within 15 metres of the street frontage, in areas of predominantly single-storey houses, are or appear as single storey.

c Buildings may cover up to 50% of the site area (except for single dwellings which may cover up to 60% including outbuildings).

10. ACS submitted that the Senior Commissioner misconstrued and misapplied cl 7.7-6 and the Bulk and Scale Objectives. ACS focused on the Senior Commissioner’s findings in [54] of the judgment:

“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.”

11. ACS submitted that these findings reveal that the Senior Commissioner misdirected herself in relation to cl 7.7-6. The Senior Commissioner did not address and make findings in terms of the words of cl 7.7-6 or the Bulk and Scale Objectives in [54]. Not only did the Senior Commissioner not expressly refer to cl 7.7-6 or the Bulk and Scale Objectives in [54], but the findings of the Senior Commissioner in [54] are inconsistent with the terms of cl 7.7-6 and the Bulk and Scale Objectives.

12. First, the Senior Commissioner said that she did not accept ACS’s argument 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”. ACS submitted that the Senior Commissioner’s non-acceptance of these arguments revealed a misunderstanding of the question to be asked about the building’s achievement of the planning outcomes in cl 7.7-6 and the Bulk and Scale Objectives.

13. In particular, the Senior Commissioner’s non-acceptance of ACS’s argument that the building “does not need to be identical to be compatible” substituted a different test for the test for visual bulk in cl 7.7-6. ACS submitted that the Senior Commissioner erred in finding that a building needs to be identical to be compatible. A test of “identicality” is the wrong test, finding no support in the words of cl 7.7-6. The test of “identicality” is far more onerous than the test of “consistency” enunciated by Pearlman CJ in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 27.

14. Second, the Senior Commissioner found that the building was “both excessive in bulk and visual impact because of the longer and higher built form”. The phrase “longer and higher” involves a comparison: longer and higher than what? The logic expressed in [54] is that in order for the building to be compatible with neighbouring developments in the locality, the built form of the building cannot be “longer and higher” than the built form of neighbouring developments in the locality. In other words, the lack of identicality of length and height gives rise to excessive bulk and visual impact. ACS submitted that this logic reveals that the Senior Commissioner misunderstood cl 7.7-6 and applied the wrong test.

15. Third, the finding in [54] that the building is “both excessive in bulk and visual impact because of the longer and higher built form” fails to address the three Bulk and Scale Objectives and instead substitutes a different test. The Senior Commissioner made no findings in [54] as to whether the bulk and scale of the proposed building “reasonably protects the amenity of neighbouring properties and maintains appropriate neighbourhood character”, allows “adequate daylight, sunlight and ventilation into living areas and private open spaces of new and neighbouring developments” or encourages “the sharing of views, while considering the reasonable development of a site”. The Senior Commissioner put aside these matters in the Bulk and Scale Objectives and substituted instead a test involving “longer and higher”.

16. Fourth, ACS submitted these errors arose from the Senior Commissioner putting aside the relevant provisions of the Orange DCP, including cl 7.7-6 and the Bulk and Scale Objectives, and applying instead her own standard of what is reasonable. In so doing, the Senior Commissioner’s decision did not conform with the principles stated in Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 that the development control plan had to be considered as a fundamental element in or a focal point of the decision-making process. ACS submitted that it was not sufficient for the Senior Commissioner to have earlier referred to cl 7.7-6 (see [16] of the judgment). Mere advertence to a matter required to be taken into consideration is not sufficient: Zhang v Canterbury City Council at [64]. The Senior Commissioner was obliged to consider the matter of visual bulk in terms of the words of cl 7.7-6 and the Bulk and Scale Objectives. The Senior Commissioner did not do so and thereby failed to take into account the provisions of the Orange DCP in the manner required by s 79C of the EPA Act. This was an error of law.

17. The Council submitted that the Senior Commissioner did not misconstrue cl 7.7-6 or substitute a different test to that in cl 7.7-6.

18. First, the Senior Commissioner did expressly refer to cl 7.7-6 and indeed quoted it in [16] of the judgment. The Senior Commissioner stated that it was one of numerous clauses of the Orange DCP “which apply to the proposed development” (at [13]).

19. Second, the Senior Commissioner’s statement that she did not accept ACS’s arguments that she had summarised in the first sentence of [54] of the judgment should not be construed as a positive finding of the opposite of each of those arguments. In particular, the Senior Commissioner’s statement of non-acceptance should not be construed as a positive finding that the building does need to be identical to be compatible.

20. The first reason for not so construing the Senior Commissioner’s statement is that she expressly says to the contrary earlier in the judgment. In [40], the Senior Commissioner found that “it is true that a development does not have to be identical to nearby properties to be compatible”. The Council submitted that it is unlikely that the Senior Commissioner changed her mind on this question between [40] and [54] of the judgment.

21. The second reason is that the Senior Commissioner’s non-acceptance of these arguments does not necessarily involve rejection of all of the three arguments paraphrased in the previous sentence, including the third statement that a building does not have to be identical to be compatible. That third statement is a proposition not an argument. It only becomes an argument when it is applied to the subject building in dispute. On a fair reading, what the Senior Commissioner was saying was that she rejected the application of the proposition to the subject building because the subject building was not compatible with surrounding development.

22. Third, the Council submitted that the Senior Commissioner did not substitute a test of “identicality” for the test of “consistency” stated by Pearlman CJ in Schaffer Corporation Ltd v Hawkesbury City Council. The Senior Commissioner did not apply “identicality” as a criterion to be satisfied under the Orange DCP. Instead, she found that the subject building was not compatible with the residential character of the neighbourhood.

23. In any event, the Council submitted that the test of consistency enunciated by Pearlman CJ in Schaffer Corporation Ltd v Hawkesbury City Council was not applicable to cl 7.7-6 of the Orange DCP. Pearlman CJ was construing a requirement of a local environmental plan that a development could not be approved unless it was “generally consistent” with the zone objectives. Pearlman CJ’s construction of the expression “generally consistent” is not applicable to the Orange DCP generally, or cl 7.7-6 in particular, which do not stipulate any threshold test of general consistency to be applied by the consent authority.

24. Fourth, the Council submitted that the Senior Commissioner did not in [54] of the judgment set aside the planning outcomes in cl 7.7-6 or the Bulk and Scale Objectives, but rather engaged with the merits of the proposal using the Senior Commissioner’s own words to explain why, in her view, the specified outcomes had not been fulfilled.

25. I find ACS has not established that the Senior Commissioner misconstrued cl 7.7-6 of the Orange DCP or asked the wrong question regarding the design element of visual bulk.

26. First, it is not correct to say that the Senior Commissioner failed to refer to or consider the terms of cl 7.7-6. It is true that the Senior Commissioner did not expressly refer to cl 7.7-6 or address its terms in [54] of the judgment. But that was not the primary place where the Senior Commissioner addressed visual bulk. The Senior Commissioner expressly quoted cl 7.7-6 in [16] of the judgment, having earlier identified the clause as one of “numerous clauses which apply to the proposed development” (at [13]).

27. The Senior Commissioner applied the planning outcome in cl 7.7-6 in [46] and [47] of the judgment. The planning outcome in cl 7.7-6 is that the built form of the proposed development accords with the desired neighbourhood character of the area in five identified ways regarding side and rear setbacks, site coverage, building form and siting, building height, and building to the boundary. The Senior Commissioner addressed street setbacks in [46] but not side or rear setbacks. She addressed building height and site coverage in [47]. She found that: “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”. These findings are in the terms of the planning outcomes for building height and site coverage in cl 7.7-6. The Senior Commissioner then concluded that: “The development thus does not satisfy the planning outcomes for visual bulk in the Orange DCP”. This is a clear reference to cl 7.7-6 which specifies the planning outcomes for visual bulk in the Orange DCP.

28. Whilst the Senior Commissioner did not make findings about the planning outcomes in cl 7.7-6 for side and rear setbacks, building form and siting or building to the boundary, this may be explicable on the basis that the proposed development achieved those planning outcomes. The Senior Commissioner in [47] was only identifying the planning outcomes in cl 7.7-6 that she found the development did not satisfy, namely the planning outcomes of building height and site coverage. It was sufficient for the Senior Commissioner to address only the planning outcomes that were not satisfied in order to found her conclusion that the development did not achieve the design element of visual bulk in cl 7.7-6.

29. Second, I do not consider that ACS has demonstrated that the Senior Commissioner substituted a different test for, or asked the wrong question about, clause 7.7-6. ACS’s argument that the Senior Commissioner misdirected herself is based on what the Senior Commissioner said in [54] of the judgment. As I have found, this was not the primary place where the Senior Commissioner addressed the design element of visual bulk. The Senior Commissioner’s consideration of cl 7.7-6 in [16] and [47] of the judgment demonstrates that the Senior Commissioner applied the test in, and asked the correct question about, clause 7.7-6.

30. The Senior Commissioner’s findings in [54] were responsive to the expert evidence and issues discussed in the preceding paragraphs of [49]-[53], which primarily addressed the visibility of the building in the streetscape and the visual impact of the building. The Senior Commissioner found that not only would the building be visible within the streetscape “it will do so in a manner which is visually intrusive” (at [52]). The Senior Commissioner explained why she found the building to be visually intrusive, including “the roof is significantly larger than that of neighbouring residential dwellings”, “the building remains relatively tall”, the building’s “scale is not sympathetic to the surrounding low density development” (all at [52]), “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”, the building “may be one storey in terms of function, but has the appearance of close to two storeys” (both at [53]), and the building “is both excessive in bulk and visual impact because of the longer and higher built form” (at [54]).

11. As to the building being “longer and higher”, the Senior Commissioner had earlier found at [5] that:

“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.”

32. The Senior Commissioner’s findings in [54] need to be viewed in this context. The Senior Commissioner was not directly addressing the design element of visual bulk (in cl 7.7-6) but rather the visibility and visual intrusiveness of the building. Viewed in this context, the Senior Commissioner’s findings in [54] did not, and were not intended to, substitute a different test for the test in cl 7.7-6.

33. Third, I do not consider that the Senior Commissioner adopted a test of “identicality”. The Senior Commissioner did not raise any test of “identicality”. She merely recorded in [54] that one of ACS’s arguments was that the building “does not need to be identical to be compatible”. She said that she did not accept “these arguments”. It is not clear that the Senior Commissioner’s non-acceptance of “these arguments” involved non-acceptance of every one of the arguments recorded in [54], including the argument that the building does not need to be identical to be compatible. But even if it did, such non-acceptance did not involve the Senior Commissioner making a positive finding that the building does need to be identical in order to be compatible. That is not the only logical consequence of the Senior Commissioner not accepting ACS’s arguments. Instead, the Senior Commissioner’s finding, which she stated immediately after her statement that she did not accept the arguments, is the logical consequence. The Senior Commissioner stated her reason for not accepting the arguments as being that the building “is both excessive in bulk and visual impact because of the longer and higher built form”. That reason is not that the building has to be identical to neighbouring developments or that the building can only be compatible with neighbouring developments if it is identical to neighbouring developments.

34. Fourth, I do not consider the Senior Commissioner’s failure to expressly refer to the Bulk and Scale Objectives involved error on a question of law. It is not clear that the Bulk and Scale Objectives were relevant matters in the sense that the Senior Commissioner was bound in law to consider them. It is true that s 79C(1)(a)(iii) of the EPA Act obliged the Senior Commissioner, in exercising the functions of the consent authority in determining the development application, to take into consideration the Orange DCP. But the obligation was to consider only the provisions of the Orange DCP that were of relevance to the development the subject of the development application. Ascertaining the relevant provisions of the Orange DCP involves consideration of the terms and applicability of the provisions of the Orange DCP.

35. In relation to the Bulk and Scale Objectives, there is no provision of the Orange DCP that expressly requires the consent authority to take into consideration those objectives or states how those objectives should be taken into consideration. Section 7.5 of the Orange DCP does state that “development must be able to demonstrate to Council that it achieves the objectives and planning outcomes for these design elements” (one of which is bulk and scale). But this falls short of mandating that the consent authority consider the Bulk and Scale Objectives. There is nothing in section 7.7 itself that requires the consent authority to consider the Bulk and Scale Objectives. The Bulk and Scale Objectives precede four design elements of visual bulk, walls and boundaries, daylight and sunlight, and views, but are not referred to in any of the clauses dealing with those design elements. In particular, clause 7.7-6 does not refer to the Bulk and Scale Objectives.

36. In any event, the parties ran the appeal before the Senior Commissioner on the basis that there was no issue about the proposed development not achieving the Bulk and Scale Objectives. The Council did not raise as a contention that the proposed development did not satisfy any of the three Bulk and Scale Objectives. In these circumstances, it was unnecessary for the Senior Commissioner to have specifically referred to the Bulk and Scale Objectives and made findings as to the proposed development’s achievement of the Bulk and Scale Objectives.

37. The only Bulk and Scale Objective of potential relevance was the first objective and even then only part of the first objective, namely ensuring that the bulk and scale of new development “maintains appropriate neighbourhood character”, was relevant. However, this part of the objective is addressed in the design element of visual bulk in cl 7.7-6. The planning outcome in cl 7.7-6 is that built form accords with the desired neighbourhood character of the area. The Senior Commissioner addressed this planning outcome. In so doing, the Senior Commissioner also addressed that part of the first of the Bulk and Scale Objectives. Hence, the Senior Commissioner in substance addressed the first of the Bulk and Scale Objectives, even if she did not expressly identify the objectives.

38. For these reasons, I reject ACS’s argument that the Senior Commissioner erred in law in her consideration of cl 7.7-6 and the Bulk and Scale Objectives.

Misconstruction of cl 7.7-4

39. ACS also contended that the Senior Commissioner misconstrued cl 7.7-4 of the Orange DCP. Clause 7.7-4 provides, so far as is relevant:

PO 7.7-4 PLANNING OUTCOMES – SETBACKS

1 Street setbacks contribute to the desired neighbourhood character, assist with integration of new development and make efficient use of the site.

2 Street setbacks create an appropriate scale for the street considering all other streetscape components.

GUIDELINES

These guidelines indicate ways of achieving the planning outcomes. It Is recognised that there may also be other solutions. All design solutions will be considered on merit. Applications should clearly demonstrate how the planning outcomes are being met where alternative design solutions are proposed.

General

a Building setbacks from the public street:

- are generally consistent with those of adjoining developments;

- provide a front garden area;

- relate to the width of the street and footpaths to provide quality urban environment.

b In new residential areas (areas where there are many newly created vacant lots and houses built in recent years) a 4.5m setback applies or as otherwise defined for specific roads

c In established areas (infill) the setback shall be up to the front building line of the residential part of a building on adjoining (but not adjacent) land.

d In addition to the setback requirements detailed above, a 2m secondary setback applies to corner allotments.

e A 9-metre front setback applies from the street frontage for main or defined arterial roads.

f A 15-metre setback applies for dwellings with a rear or side boundary adjoining a distributor road.

g Garages shall be setback 1.5m behind the building line as established above, or at least 5.5m which ever is the greater distance. This distance applies to entrances off a secondary boundary on corner allotments.

h Garages are set behind the building façade, or project up to 3m (half the normal depth of a garage) in front of the main façade.

I Garages can project further towards the street frontage than as stated in point h above on irregular shaped lots where the width of the lot is 15m or less at the building line.

j For three or more garages, the garage openings must be set back at least 8m from the front building alignment.

k Within heritage areas, garages shall be located behind the existing building line.

…

40. ACS first focused on the Senior Commissioner’s paraphrase of cl 7.7-4 in [15] of the judgment:

“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’.”

41. ACS contrasted the paraphrase of the Senior Commissioner with the text of cl 7.7-4. Clause 7.7-4 does not state that street setbacks “are to contribute” to the desired neighbourhood character but rather states that the street setbacks “contribute” to the desired neighbourhood character. ACS submitted that these are two very different statements and concepts. The Senior Commissioner substituted the incorrect approach that street setbacks are to contribute (or must contribute) to the desired neighbourhood character for the approach required by cl 7.7-4 of assessing the setbacks in light of their contribution to the desired neighbourhood character.

42. ACS submitted that this substitution of an incorrect approach affected the Senior Commissioner’s finding in [46] of the judgment:

“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.”

43. ACS focused on the first sentence of [46]. ACS submitted that the Senior Commissioner has equated inconsistency with existing setbacks with incompatibility with the residential character of the area. This is apparent from the use of the words “and is therefore”. The misstating of cl 7.7-4 has resulted in the substitution of the correct inquiry, which is as to the nature and effect of the street setback’s contribution to the desired neighbourhood character, with the incorrect inquiry that the street setbacks are to contribute to the desired neighbourhood character and that inconsistency results in the incompatibility with the desired neighbourhood character.

44. The Council submitted that the Senior Commissioner did not substitute her own (incorrect) approach for the correct approach in cl 7.7-4.

45. First, the Senior Commissioner’s paraphrase of cl 7.7-4 in [15] did not mis-state the effect of the clause. The clause specifies two planning outcomes for setbacks to be achieved by a proposed development. The first planning outcome that a proposed development should achieve is that its “street setbacks contribute to the desired neighbourhood character, assist with integration of new development and make efficient use of the site”. The Senior Commissioner’s paraphrase of this planning outcome, that the street setbacks of the proposed development “are to contribute to the desired neighbourhood character, assist with integration of new development and make efficient use of the Site…”, is to the same effect as the text of cl 7.7-4.

46. Second, the Council submitted that in the first phrase of the first sentence of [46] of the judgment, the Senior Commissioner was applying the standard in guideline 7.7-4(a) that “Building setbacks from the public street…are generally consistent with those of adjoining developments”. The Senior Commissioner made a factual finding that the setback of the proposed development was inconsistent with the existing setbacks of adjoining developments. In saying that the development was “therefore at odds with the residential character of the area”, the Senior Commissioner was expressing a conclusion about the planning impact of not achieving the standard. This did not detract from, but reinforced, the application of the standard.

47. Third, the Council submitted that in the second sentence of [46], the Senior Commissioner was applying the standard in guideline 7.7-4(c) that “In established areas (infill) the setback shall be up to the front building line of the residential part of a building on adjoining (but not adjacent) land”. This is further evidence that the Senior Commissioner expressly considered the terms of cl 7.7-4. In the balance of the paragraph, the Senior Commissioner deals with the alternative standard in guideline 7.7-4(b) of the 4.5m setback in new residential areas. While that alternative standard was not applicable as the proposed development was not in a new residential area, the Senior Commissioner’s consideration of the standard, in the event that she was wrong in finding that the standard in guideline 7.7-4(c) was the relevant setback, is further evidence that the Senior Commissioner considered cl 7.7-4.

48. I find that the Senior Commissioner did not err on a question of law in her consideration of cl 7.7-4 of the Orange DCP.

49. First, the Senior Commissioner’s paraphrase of cl 7.7-4 in [15] of the judgment did not misstate the test in cl 7.7-4. Clause 7.7-4 specifies two planning outcomes for the design element of setbacks that a proposed development is to achieve. The planning outcomes are that “street setbacks” of the proposed development “contribute to…”, “assist with…”, “make efficient use of…” and “create…” various planning outcomes. The Senior Commissioner’s paraphrase in [15] of the judgment that street setbacks “are to” contribute to, assist with, make efficient use of and create the specified planning outcomes is to the same effect as the text of the planning outcomes in cl 7.7-4.

50. Second, the Senior Commissioner’s finding in the first phrase of the first sentence of [46] of the judgment is an application of the standard in guideline 7.7-4(a). The guidelines in cl 7.7-4 indicate ways of achieving the planning outcomes in cl 7.7-4. Guideline 7.7-4(a) is that “building setbacks from the public street are generally consistent with those of adjoining developments”. The Senior Commissioner addressed this guideline and made a factual finding that the building setback from the street of the proposed development would be inconsistent with the existing setbacks of adjoining developments. The Senior Commissioner had earlier found that the adjoining properties have setbacks of 7m and 10.5m (at [42]) while the proposed development would have a lesser setback, including having front boundary fencing setback 4.5m from the street and children’s play equipment behind the 4.5m line (at [46], [56]). The Senior Commissioner’s finding that the setback of the proposed development would be inconsistent with the existing setbacks of adjoining developments was open on the evidence.

51. Third, I do not consider that the Senior Commissioner’s finding in the second phrase of the first sentence of [46] reveals that the Senior Commissioner misdirected herself about cl 7.7-4 or applied the wrong test. If the setback of the proposed development had been generally consistent with the setbacks of adjoining developments (guideline 7.7-4(a)), this would have been a way of indicating that the setback of the proposed development achieved the planning outcomes of cl 7.7-4. But is the converse true? If the setback of the proposed development is not generally consistent with the setbacks of adjoining developments, does this indicate that the proposed development does not achieve the planning outcomes in cl 7.7-4? The answer is that it depends on the individual facts and circumstances, including the nature and extent of inconsistency between the setback of the proposed development and the setbacks of adjoining developments. These are factual questions that had to be decided by the decision maker.

52. In this case, the Senior Commissioner found that the inconsistency of the setback of the proposed development with the existing setbacks of adjoining developments was such as to cause the setback of the proposed development to be “at odds with the residential character of the area”. This finding is expressed in language that is different to the language in which the planning outcomes in cl 7.7-4 are expressed, but this difference in language does not necessarily indicate any misdirection about the planning outcomes.

53. One of the planning outcomes is that the “street setbacks contribute to the desired neighbourhood character”. The Senior Commissioner found that the desired neighbourhood character is the residential character of the area, a finding not disputed by the parties. The Senior Commissioner found that the difference or inconsistency in setbacks between the proposed development and the adjoining developments was such that the setback of the proposed development was “at odds with” the residential character. To be “at odds with” necessarily means that the setback would not “contribute to” the residential character. Hence, whilst the Senior Commissioner has not used the language of the planning outcome in expressing her finding about the consequence of the inconsistency in setbacks, she has nevertheless made a finding that has the same effect as if she had used that language. In these circumstances, no misdirection is established.

54. I therefore reject ACS’s first ground of appeal.

Misdirection that class 3A standard car park design required

55. ACS contended that the Senior Commissioner failed to properly consider the traffic impacts of the development under s 79C(1)(b) of the EPA Act by finding that the car park should be designed to a class 3A, rather than a class 3, design standard.

56. ACS submitted that error on a question of law is revealed in [99] of the judgment:

“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.”

57. The Senior Commissioner had earlier (at [87]-[89]) set out the differences in design between a class 3 car park and a class 3A car park under Australian Standard AS/NZ2890.1:2004 Parking facilities, Part 1: Off-street car parking. The relevant difference is in the aisle width, with class 3 providing the minimum aisle width for single manoeuvre entry and exit and class 3A providing an additional allowance above the minimum single manoeuvre width to facilitate entry and exit. The Senior Commissioner had recorded that the Council’s traffic expert, Mr Pindar, considered that the car park should be to the class 3A standard, as the wider aisle would provide more convenient access to parent and carer spaces (at [88]), while ACS’s traffic expert, Mr Hollyoak, considered that a class 3 standard was acceptable for childcare centres but conceded that a class 3A standard would provide a safer outcome (at [89], [99]).

57. ACS submitted that the Senior Commissioner’s findings in [99] show that she misdirected herself and asked herself the wrong question in three ways:

1. by considering a development (a class 3A standard car park) that was not the subject of the development application made by ACS;

2. by determining that a class 3A standard car park was more desirable than a class 3 standard car park; and

3. despite finding that a class 3 standard car park was acceptable, nevertheless finding that the class 3 standard car park was unacceptable because there were other deficiencies with the proposed development unrelated to traffic and parking.

59. ACS submitted that the first way involved error because the Senior Commissioner’s function was to assess and determine the development application made by ACS. The development the subject of the development application included a car park designed to meet the class 3 standard. The Senior Commissioner needed to assess that car park and not a car park designed to a class 3A standard, which would be different, including having wider aisles and occupying a larger area. ACS noted that the Senior Commissioner had elsewhere accepted “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” (at [103]). Hence, ACS submitted that the Senior Commissioner misdirected herself and asked herself the wrong question when she assessed a class 3A standard car park that had not been proposed in the development application made by ACS.

60. ACS submitted the second way involved error because, having found that the provision of a car park to a class 3 standard was acceptable, it was irrelevant that a car park to a class 3A standard “is desirable”. A car park to a class 3 standard is either acceptable or not acceptable for the proposed development. The Senior Commissioner found that the proposed class 3 parking was acceptable. That car park could not become unacceptable because a class 3A car park design “is desirable” and “provides a safer design”. Of course, a class 3A car park would also be acceptable (because it would provide a safer design than a class 3 standard car park) but that simply meant that both a class 3 car park and a class 3A car park were acceptable. It could not cause the class 3 car park to become unacceptable.

61. ACS submitted that the third way involved error because the class 3 standard car park which the Senior Commissioner had found to be acceptable could not become unacceptable because of deficiencies in the development, such as in the bulk and scale of the development, that are unrelated to traffic and parking. ACS submitted that the Senior Commissioner’s finding that “what is proposed is an overdevelopment of the site” cannot logically affect her earlier finding that “the provision of class 3 parking to be acceptable”.

62. The Council submitted that the Senior Commissioner did not err in the ways contended for by ACS.

63. First, the Senior Commissioner did assess the development for which application was made and not any other development. The Senior Commissioner’s discussion that a class 3 standard car park “provides a safer design” and “would be a useful safety measure” was a way of assessing the acceptability of the car park for which application was made, rather than assessing a hypothetical development for which development application had not been made.

64. Second, the Council submitted that the Senior Commissioner did not actually find that the car park for which application was made was acceptable. The Senior Commissioner expressed her finding about the acceptability of the car park in the conditional tense: “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.” However, this was not the case. The Senior Commissioner had earlier in the judgment identified a number of deficiencies in the development, particularly concerning the excessive bulk and scale of the development, that were impediments to the development receiving consent. The condition upon which the Senior Commissioner indicated that she “would find” the provision of class 3 parking to be acceptable did not, therefore, exist. Hence, the Senior Commissioner did not in fact find that the class 3 car parking to be provided was acceptable.

65. Third, the Council submitted that the Senior Commissioner’s conditional finding of acceptability was a step in the Senior Commissioner’s process of reasoning in [99] to her conclusion that the car parking provided was not in fact acceptable. Taken in context, the Senior Commissioner’s assessment of the car park as “acceptable” must mean “tolerable”. The Senior Commissioner went on to find that it would be desirable to have class 3A as the appropriate car park design as it provides a safer design. This was a finding of fact and did not give rise to a question of law.

66. Fourth, the Council noted that the Australian Standard specifies minimum standards for car parking layouts. A development which achieved better than those standards would not be non-compliant. Therefore, a decision which took into account those standards and required the proponent to achieve a design which would be safer was not a decision setting aside those standards in the manner impugned in Zhang v Canterbury City Council.

67. I find that the Senior Commissioner did not misdirect herself or ask the wrong question about the car park for the development. I agree with and adopt the Council’s submissions.

68. First, the Senior Commissioner did not impermissibly consider a development different to the development proposed in the development application made by ACS. The Senior Commissioner assessed the car park proposed by ACS. That car park met the standard for a class 3 car park. The issue was whether this standard was sufficient for the particular childcare centre proposed by ACS. The Council’s expert had said it was not and instead the car park should be redesigned to meet the class 3A standard. ACS’s expert, whilst saying that a class 3 standard car park would be acceptable, conceded that a class 3A standard car park would be a safer design. The Senior Commissioner accepted this evidence to find that it would be desirable to have class 3A as the appropriate car park design for the proposed childcare centre as it “provides a safer design” and “with the number of children proposed for this development (124) this would be a useful safety measure arising from the intensity of the design.” This is, in effect, a finding that the car park proposed in the development application by ACS is unacceptable because it does not meet the class 3A car park design that the Senior Commissioner found to be appropriate in the circumstances.

69. Second, the Senior Commissioner did not actually find that the proposed car park to a class 3 standard was acceptable. The Senior Commissioner’s statement about the acceptability of class 3 car parking was expressed in the conditional tense. The Senior Commissioner “would find” the provision of class 3 parking to be acceptable “if” the provision of class 3 and not class 3A parking were to be the only impediment to granting consent. This condition did not exist and hence the Senior Commissioner did not make the finding that the provision of class 3 parking was acceptable.

70. Accordingly, there is no inconsistency in the Senior Commissioner’s findings in [99] regarding the acceptability of the proposed car park. The Senior Commissioner’s actual findings are those expressed in the fourth, fifth and sixth sentences to the effect that the proposed car park is not acceptable as it does not provide the “safer design” and “useful safety measure” that would be provided by a class 3A car park design.

71. Third, there is no logical flaw in the Senior Commissioner’s finding in the last sentence of [99] in the way submitted by ACS. The Senior Commissioner was not in that sentence saying that the class 3 car parking, which was acceptable, became unacceptable because of deficiencies in the development unrelated to traffic and parking, such as excessive bulk and scale of the development. Instead, the Senior Commissioner was noting an indisputable fact about the inability to provide a car park to the Class 3A standard on the site. The number of children proposed for the childcare centre (124) dictated the size of the building (larger and “longer and higher”) and the number of car parking spaces that needed to be provided. The larger building for the childcare centre resulted in a smaller area being available to provide car parking. That smaller area was able to provide the required number of car parking spaces if designed to a class 3 standard but not if designed to a class 3A standard (as the latter standard requires wider aisles than the former).

72. This was the inability of the car park to which the Senior Commissioner referred: the inability of the car park to provide parking to a class 3A standard. This inability of the car park was a consequence of the size and intensity of the proposed development (the number of children, the area occupied by the building and the resultant area of the car park). The Senior Commissioner described this consequence as “an overdevelopment of the site”. That is a factual finding and does not involve any error on a question of law.

73. I therefore reject ACS’s second ground of appeal.

Conclusion

74. ACS has not established that the Senior Commissioner erred on a question of law in the ways raised in the grounds of appeal. The appeal should be dismissed.

75. In an appeal under s 56A of the Court Act, the usual order for costs is that costs follow the event. There are no circumstances or conduct of the parties that would justify making a different order as to costs.

76. The Court orders:

1. The appeal is dismissed.

2. The applicant is to pay the respondent’s costs of the appeal.

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Decision last updated: 20 June 2018