Bayview Road Canada Bay Pty Ltd v City of Canada Bay Council

[2023] NSWLEC 1033

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bayview Road Canada Bay Pty Ltd v City of Canada Bay Council [2023] NSWLEC 1033

Hearing dates:

13 December 2022

Date of orders:

31 January 2023

Decision date:

31 January 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.
(2) That the Development Application DA2021/0167, as amended, to demolish the existing dwelling house and all other structures in order to construct a part one and part two storey Centre Based Child care Facility, with basement parking, at Lot 7 in DP2165, 34 Bayview Road, Canada Bay, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A” to this judgment.
(3) The Exhibits, apart from Exhibits A, B and 2, are returned.

Catchwords:

DEVELOPMENT APPLICATION – Child care Centre – amended plans - hearing

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cll 4.3, 4.4, 6.1, 6.2
Education and Care Services National Regulations Children (Education and Care Services) Supplementary Provisions Regulation 2012 (the Child care Regulations), Regs 107, 108
Environmental Planning and Assessment Act 1979, s 8.7
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 3.22

Texts Cited:

City of Canada Bay Development Control Plan 2017
NSW Government, Child Care Planning Guideline, August 2017

Category:

Principal judgment

Parties:

Bayview Road Canada Bay Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
Dr J Smith (Applicant)
R McCulloch (Solicitor)(Respondent)

Solicitors:
HWL Ebsworth (Applicant)
Pikes Verekers (Respondent)

File Number(s):

2022/59558

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Bayview Road Canada Bay Pty Ltd (Applicant) against the actual refusal by City of Canada Bay Council (the Respondent) of Development Application DA2021/0167 for a Centre-based Child care Facility.

The Proposal

2. Broadly, the Development Application proposes to demolish the existing dwelling house and all other structures to construct a part one and part two storey Centre Based Child care Facility with basement parking.

3. During the appeal process the Applicant sought leave, which was granted, to rely on amended plans on the basis that the adjustments addressed various issues raised in the Statement of Facts and Contentions (SOFAC’s). The adjustments included, but are not limited to, the following key changes:

• A reduction in the maximum of 36 children (12 children aged 0-2 years, 12 children aged 2-3 years and 12 children aged 3-5 years);

• A confirmation that the proposed development will operate between Monday to Friday from 7am to 6pm. No staff will arrive at the site prior to 6:45 am. The centre will otherwise be closed on Saturday, Sunday and public holidays.

• Minor internal alterations.

• Changes to the parking provision on site.

• Updates to the Plan of Management.

• Additional detail on acoustic treatments, including fencing and screening details.

• Additional detail on landscaping solutions, and amendments to the plan, including additional planting and tree protection.

• Changes to setbacks, including changes to the front setback.

The Site and Locality

4. The site is identified as Lot 7 in DP 2165 and is known as 34 Bayview Road, Canada Bay. The site is located on the eastern side of Bayview Road, between Watts Street and Lyons Road West.

5. The site is rectangular in shape with a frontage to Bayview Road, a rear boundary dimension of 15.24m, a side boundary dimensions of 60.2m and a site area of 916.9m². The site has a fall of approximately 1.7m from the street frontage to the rear boundary.

6. The agreed facts filed with the Court indicate that Bayview Road, in the vicinity of the subject site, is an area of R2 Low Density Residential zoned land characteristically developed with one and two storey detached dwelling houses. The rear boundary of the subject site delineates the start of an area of R3 Medium Density zoned land which comprises a mixture of residential flat buildings and semi-detached dwellings.

7. At the commencement of the hearing the parties undertook a site view which included observing the characteristics of development along Bayview Road. This included noting the emergence of new two-storey dwellings and the presence of basement parking in the street.

Public Submissions

8. The Development Application was publicly notified between 6 August and 27 August 2021 in accordance with the City of Canada Bay Development Control Plan 2017 (the CDCP). The SOFAC’s note that twenty-two (22) written objections were received in response to the 2021 notification of the proposal.

9. The Court was provided with a further twenty-three (23) written submissions that were made, during August and September 2022, in advance of the Hearing. This second bundle included a table listing signatories objecting to the development.

10. At the commencement of the site visit, seven (7) oral submissions were made, all of whom object to the development and who live, or own, properties in Bayview Road. A common theme to objections were issues arising from increased traffic and the parking demand associated with the proposed use. These concerns centred around the speed of vehicles, the safety of children and the inability to find appropriate on street parking.

11. Additional concerns were raised on behalf of an adjoining owner. These additional concerns included overshadowing, both visual and acoustic privacy issues and concerns around operational aspects of the development. The parties have addressed the matters raised in the written and oral submissions, either directly or indirectly, when dealing with the contentions in this matter. The Court has also had the benefit of expert evidence on the issues raised.

The Canada Bay Local Environmental Plan 2013 (CLEP 2013)

12. The site is located within the R2 Low Density Residential zone pursuant to Canada Bay Local Environmental Plan 2013 (CLEP 2013). The proposed development is defined as a Centre Based Child care Facility which is permissible with development consent within the zone. Development for the purposes of a Centre Based Child care Facility is expressly listed as permissible with consent in the land-use table to this site.

13. The CLEP 2013 has various development standards, pursuant to cl 4.3, a maximum for the height of buildings of 8.5m; and, pursuant to cl 4.4, a maximum floor space ratio of 0.5:1. The proposed floor space ratio of 0.5:1 and the proposed height of 7.25m achieve compliance with the development standards.

The Issues

14. The parties rely on Joint Experts Reports prepared by a variety of experts covering the subjects of engineering, waste management, landscaping, acoustics, child care operations, town planning and BCA issues. These reports addressed the issues raised in the SOFAC’s which included an assessment of the suitability of the site, the streetscape, the design and function of the centre and impacts on amenity and the natural landscape. The evidence also covers issues raised by objectors relating to traffic, parking and amenity concerns.

15. The SOFAC’s identified several matters for which insufficient information had been provided to enable the Respondent to undertake an appropriate assessment of the application. The discussions between the parties prior to the hearing, including the relevant experts, has resulted in this information now forming part of the Development Application before the Court.

16. The provision of the additional information has either resolved the issues between the parties or enabled a clear articulation of outstanding issues. The Applicant, as a consequence of understanding the main concerns, undertook a process of amendments to the application. The result of these amendments is that the experts agree that the application currently before the Court has satisfactorily addressed the issues raised in the SOFAC’s.

17. Prior to the hearing, the applicant filed the amended material with the Court. Leave was subsequently granted for the amended plans to form the application now before the Court.

18. Despite the parties now agreeing that the issues raised by the Respondent have been addressed, the Court must reach its own conclusion, in respect to the adequacy of the Development Application. This includes consideration of the merits of the application as well as any jurisdictional matters that require assessment prior to determination.

19. The issues before the Court can be grouped into three broad categories being traffic and parking, the form and function of the facility, and the landscape solution. These matters are addressed as follows.

Is the traffic and parking acceptable?

20. The applicant has responded to initial concerns raised in the SOFAC’s regarding Traffic and Parking contentions. As part of amended material filed with the Court, the Applicant prepared further traffic and parking assessments, prepared by Transport and Urban Planning Pty Ltd, in respect to the application. The report demonstrates traffic volumes and parking arrangements associated with the development and how these outcomes comply with relevant Australian Standards.

21. As a result of this additional information, the Respondent no longer opposes the development on traffic and parking grounds. It is because of this clarity around the compliance with traffic volumes and the provision of parking that I agree that the development is acceptable in terms of these contentions. I accept the traffic and parking assessment by the parties that concludes that the proposal is adequate in this regard.

Is the Stormwater Acceptable?

22. There were a few items in the SOFAC’s that raised contentions relating to stormwater. These included issues around on-site detention and methods of draining the site. The engineering experts discussed these issues in the Joint Report on Stormwater (Exh 9). As a result of these discussions, the amended material and associated explanations, the experts agree on the stormwater solution for the site. This includes appropriate conditions to be attached to any Development Consent, if granted, along with compliance with updated Stormwater plans.

23. As a consequence of this technical agreement, the Respondent no longer presses issues regarding Stormwater. I am satisfied, because of additional technical information and subsequent assessments, that the stormwater solution for the site is acceptable.

Is the form and function of the facility adequate?

24. Evidence has been provided in respect to the form and function of various components of the facility. This includes, but is not limited to, the size, shape and location of the indoor and outdoor play areas. The experts now agree that the proposal adequately addresses the requirements of Pt 3.3 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Child Care SEPP). As part of the consideration of cl 3.22 an assessment of the proposal against Regs 107 and 108 of the Education and Care Services National Regulations Children (Education and Care Services) Supplementary Provisions Regulation 2012 (the Child care Regulations) is required.

25. Clause 3.22(4) of the Child Care SEPP provides that before determining a Development Application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline (Guidelines), in relation to the Proposed Development.

26. These provisions and guidelines have been addressed in the Statement of Environmental Effects dated July 2021 prepared by PJEP Environmental Planning Pty Ltd. In particular, the child care centre has been designed in accordance with Part 3 Facilities and Equipment Requirements of the Regulations. The key provisions are summarised in the list below, in that the proposed child care centre will include:

1. Office administration area and staff rooms;

2. Indoor space (unencumbered) of 3.25m2 per child;

3. Outdoor space of 7m2 per child;

4. A laundry facility at the Site;

5. Craft sinks and areas in the play rooms;

6. A food preparation designed to prevent children access;

7. Nominated children toilet facilities;

8. A nappy changing area;

9. A sleeping area- cot room; and

10. Storage areas adjoining the Playrooms and outdoor space.

27. The Applicant also provided an updated version of the Plan of Management for the facility prepared by Early Education Solutions (23 November 2022). This updated report deals with the operation aspects of the development including, but not limited to, the staff allocation, the range of age groups, noise management, daily routines for children, car parking and waste management. The Respondent no longer challenges the adequacy of the Plan of Management. It is for these reasons that I agree that the Plan of Management covers the required matters and is acceptable.

28. A contention was raised in respect to the Waste Disposal for the facility. The Waste experts met and prepared a Joint Report on this contention (Exh 8). As a result of this process, and the additional information around the Waste facilities, the Respondent agrees that the Waste solution will be acceptable. Appropriate conditions have been provided in the event the Court grants Development Consent. I agree that the material provided addresses the matters requiring consideration on this operational contention.

29. A further set of contentions arising from the function of the centre related to potential acoustic impacts. The Acoustic experts prepared a Joint Report which assessed these impacts (Exh 7). As a result of this process, the Applicant has provided either additional information, or minor amendments, to address the concerns raised by the Respondents Acoustic expert. The parties are now in agreement that the acoustic contentions are resolved. It is because of this additional information, and the further review by the experts, that I am also satisfied that the acoustic issues are adequately resolved.

30. A further aspect of the form and function of the centre were potential amenity issues relating to bulk scale and privacy outcomes that might impact on adjoining properties. Adjustments to the floor level of outdoor play areas, the provision of appropriate setbacks and the inclusion of privacy screens are part of the outcomes that have resulted in the Town Planning experts agreeing that the amenity consequences of the development have been adequately addressed. This includes ensuring privacy screens on the first-floor play area control privacy issues to adjoining properties. It is because of these changes that I am satisfied that the proposal has adequately addressed the form and function issues that the Respondent said prevented the granting of development consent.

Landscaping

31. Amendments to the application included adjustments to a landscaped solution for the development. A significant consequence of the discussion between the parties is the amendment to the application in the rear portion of the site. An area has been set aside for landscaping outside the main play area. These changes have facilitated retention of trees T3 and T4 in the rear landscaped section and the embellishment of this area with additional landscaping.

32. It is because of these changes, combined with the agreement between the landscape experts that the issues have been addressed, that I am satisfied that landscaping is not an issue that would prevent the granting of Development Consent to the application.

What are the remaining jurisdictional matters requiring consideration?

33. CLEP 2013, cll 6.1 and 6.2 – These clauses require consideration of Acid Sulphate Soils and Earthworks. The site is nominated as Class 5 Acid Sulfate Soils. The Applicant has addressed matters relating to soils, as required by cl 6.1, in the Statement of Environmental Effects prepared by PJEP Environmental Planning Pty Ltd.

34. An engineering report has been prepared by Costin Roe (Consultants). This report deals with several matters relating to the development of the site but includes assessments relating to soils, stormwater, water quality and earthworks, amongst other matters. As a result of the assessment in this report, and subsequent review by Council, I am satisfied that the required consideration has been given to the matters, in cll 6.1 and 6.2 of CLEP 2013, to the extent they are applicable to this site.

35. The Applicant has provided the requisite certificate pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

36. Consideration has been given to the potential contamination of the site, pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021, which applies to the site. The application was supported by a Preliminary Site Inspection and Hazardous Material Survey prepared by EI Australia. The report concluded that whilst there were minor contaminants present, these did not pose a threat to the proposed use of the site subject to implementing the Remedial Action Plan. The report noted the historical continuous use of the property for residential purposes and that the isolated contaminants were likely associated with the residential use. I am satisfied, because of the contents of the report, that the site can be remediated appropriately to cater for the proposed use. I also note the extent of excavation proposed for the basement car park.

Conclusions

37. The communication between the parties, particularly prior to the hearing, has enabled an airing of the contentions and issues. This has allowed the Applicant, in this instance, to provide information and solutions to overcome the Respondents concerns. The expert material before the Court has also canvassed the merit issues that comprised the contentions before the Court. As a result, the Applicant has amended material that satisfies the matters raised by the Respondent, including the concerns of residents.

38. As a result, I am satisfied that the proposal before the Court has adequately addressed the merit issues that require consideration prior to the granting of any development consent. This includes adequately addressing the merit issues raised by adjoining and nearby residents in respect to traffic, parking and amenity.

39. The Court orders that:

1. The appeal is upheld.

2. That the Development Application DA2021/0167, as amended, to demolish the existing dwelling house and all other structures in order to construct a part one and part two storey Centre Based Child care Facility with basement parking, at Lot 7 in DP2165, 34 Bayview Road, Canada Bay, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A” to this judgment.

3. The Exhibits, apart from Exhibits A, B and 2, are returned.

S Harding AC

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 31 January 2023