Brenham Pty Limited v North Sydney Council

[2016] NSWLEC 1343

Land and Environment Court

New South Wales

Medium Neutral Citation:	Brenham Pty Limited v North Sydney Council [2016] NSWLEC 1343
Hearing dates:	11-13 and 18 May, 2016
Date of orders:	16 August 2016
Decision date:	16 August 2016
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. 382/2014 for alterations and additions to an existing premises and use as a childcare centre for 62 children with hours of operation 7.30am to 6pm Monday to Friday at 3 Amherst Street, Cammeray is approved, subject to the conditions of consent at Annexure ‘A’. 3. The exhibits, other than exhibits 1, 13 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: childcare centre, impact on the heritage significance of the State listed heritage item, whether there is adequate parking available for parents in the vicinity of the site; compliance with the Building Code of Australia.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399
Category:	Principal judgment
Parties:	Brenham Pty Ltd (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: Mr I. Hemmings SC (Applicant) Mr A. Galasso SC (Respondent) Solicitors: Hones Lawyers (Applicant) North Sydney Council (Respondent)
File Number(s):	2016/166728 (formerly 10308 of 2015)

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 382/2014 for alterations and additions to an existing premises and use as a childcare centre for 80 children with hours of operation 7.30am to 6pm Monday to Friday (the proposal) at 3 Amherst Street, Cammeray (the site) by North Sydney Council (the Council).

2. The appeal was subject to mandatory conciliation on 27 October 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 29 January 2016, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 5 February 2016 for the applicant to rely on the amended proposal and the respondent Council filed an amended statement of facts and contention on 6 April 2016.

Issues

3. The Council’s contentions in the matter can be summarised as:

• The existing State listed heritage item is unsuitable for use as a childcare centre because the proposed works required will have an adverse and detrimental impact on its heritage significance.

• The layout of the existing dwelling results in difficulties with the supervision and safety of children and the first floor verandah is unsuitable for its proposed use as an indoor play space;

• The proposal does not provide adequate and convenient parking for drop off and pick up of children at the childcare centre; and

• The proposal does not comply with the relevant requirements of childcare centres.

The site and its context

4. The site is on the southern side of Amherst Street, Cammeray, on the corner of Tarella Place and Amherst Street. The Victorian house is located on the southern, rear portion of the site, with a large, mature garden between the house and Amherst Street.

5. The Warringah Freeway (M1) is at the rear of the site and the site is situated well above the freeway.

6. There is a townhouse development and a dwelling on the opposite side of Tarella Place, accessed via Tarella Place, with dedicated parking spaces in the roadway at the end of Tarella Place. The rear garage on the site is also accessed via Tarella Place.

7. There are two residential flat buildings adjacent to the western boundary of the site.

8. The Victorian house on the site is two storeys, with later additions and outbuildings to the rear, including a contemporary garage.

Background and the proposal

9. The proposal is to change the use of the existing dwelling to a childcare for 80 children. The proposal includes a Conservation Schedule of Works (exhibit F) and alterations and additions to the fabric of the dwelling and garden, including the following:

• New front fence with child safety gate to be positioned inside the existing front fence and the existing gates within the front fence are to be raised in height to match the height of the existing fence (sheet 06, exhibit A);

• Landscaping to front garden (Landscape plan, exhibit A) including 2 retractable cantilevered parasols, sandpit, brick paving to existing concrete path, existing path to be raised at the north-western corner of the dwelling to meet a timber deck at the same height as the front verandah;

• New accessible pathway adjacent to the eastern side boundary;

• New handrails added to the front verandah steps and removal ramp across the entry threshold of the existing front door;

• Hold open devices to existing internal doors;

• Air-conditioning to Ground Floor rooms on the eastern side of the dwelling;

• Tactile indicators;

• Acoustic panelling to eastern side boundary of Outdoor Play Area 1;

• New accessible toilet in the existing garage to be accessed from Outdoor Play Area 1;

• Changes to stair between the kitchen and indoor playroom 4;

• Fit-out of existing wet areas for toilets, nappy change and laundry facilities, new handrails to steps leading to bathrooms;

• New internal viewing window in Indoor Play Room No. 9 to children’s WC;

• New protective frameless glass to stained glass window above stair landing;

• Safety balustrade to be positioned inside the existing first floor verandah wrought iron balustrade.

• Alterations and additions to the contemporary garage at the rear of the site.

Resident evidence

10. Six resident objectors provided evidence on site at the commencement of the hearing and their objections to the proposal can be summarised as:

• The proposal will have an unacceptable impact on the heritage significance of the State listed heritage item;

• The proposal will have an unacceptable impact on the amenity, both visual and acoustic, of the apartments on the ground and first floors of the adjoining property which overlook the front garden of the site;

• The proposal does not provide parking on site for the drop off and pick up of children and this will result in the safety of children attending the centre being compromised;

• The proposal will result in additional cars being parked in Amherst Street and it is already difficult to park in the street at peak times;

• The proposal will result in the loss of the doors salvaged from elsewhere and added to the rear garage when it was constructed in the 1980s;

• The right of way access to the rear garage has a small turning area outside the garage, making it difficult to access the garage and likely that cars will reverse down the right of way to exit, which is dangerous. The proposal to park motor bikes and bicycles next to the garage is unacceptable;

• The gate at the rear of the site may be used by children to exit the childcare centre and this will create a hazard in the right of way for other drivers; and

• The proposal will result in the loss of vegetation along the fence adjacent to the right of way.

Planning framework

11. Clause 94 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) is as follows:

94 Consent authority may require buildings to be upgraded

(cf clause 66B of EP&A Regulation 1994)

(1) This clause applies to a development application for development involving the rebuilding, alteration, enlargement or extension of an existing building where:

(a) the proposed building work, together with any other building work completed or authorised within the previous 3 years, represents more than half the total volume of the building, as it was before any such work was commenced, measured over its roof and external walls, or

(b) the measures contained in the building are inadequate:

(i) to protect persons using the building, and to facilitate their egress from the building, in the event of fire, or

(ii) to restrict the spread of fire from the building to other buildings nearby.

(c) (Repealed)

(2) In determining a development application to which this clause applies, a consent authority is to take into consideration whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia.

(2A), (2B) (Repealed)

(3) The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act.

12. The site is zoned R4 High Density Residential under North Sydney Local Environment Plan 2013 (LEP 2013) and childcare centres are permitted with consent in the R4 zone. The relevant objective of the R4 zone is as follows:

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

13. The site is listed on the State Heritage Register (SHR) as an item of heritage significance (SHR No. 00270) and in Schedule 5 of LEP 2013 ‘Tarella, 3 Amherst Street, Cammeray Item 0001 State Significance’. The site is within a heritage conservation area. The heritage conservation cl 5.10 of LEP 2013 relevantly includes the objective at (1)(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views. The consent authority must, at cl 5.10(4) of LEP 2013, consider the effect of the proposed development on the heritage significance of the item or area concerned before granting consent. The State Heritage Inventory sheet for ‘Tarella’ includes the following statement of significance and description of the item:

Statement of Significance

Fine example of a grand Victorian Mansion. Residence of important public figure of the nineteenth century. One of the earliest buildings established in the vicinity and one of the earliest still in existence. Fine garden and entry to house. The exterior, landscape setting and interior and this property are of significance.

Description

A two-storey Victorian residence of brick construction (tuck-pointed, now painted) with corbelled brick eaves and hipped slate roof. Set well-back from the street frontage on a large site, the house has a two-storey verandah on the main (north) elevation; the lower level verandah is paved with tessellated [sic] tiles in a mosaic pattern with a slate border; slender cast-iron columns support the timber structures of the upper level. Panelled front door has sidelights, a leadlight panel over and brass door knob, knocker and bell pull. There is a large semi-formal garden between the painted iron palisade fence on the Amherst Street boundary and the house. The garden features mature palms, lavender hedges, roses, pomegranate and frangipani trees with a fountain and pond in the lawn. Interior room configuration still evident. Interior of significance. This building is designed in the Victorian Italianate style.

Historical note

Tarella was originally the house of Sir Joseph Palmer Abbott, K.C.M.G., a former speaker of the New South Wales Legislative Assembly. J.P. Abbott built Tarella c. 1874, on land he had acquired in 1881. His grounds were extensive and included a coach house, windmill and stables. The house was saved from demolition in 1970 and restored with a new coach house constructed.

14. North Sydney Development Control Plan 2013 (DCP 2013) is a relevant consideration. DCP 2013 includes, at 1.7.2, that Council will consider development proposals that achieve the objectives of the DCP by means other than the provisions of the DCP.

15. Section 5 of DCP 2013 includes objective and provisions for childcare centres. The introduction to the section at 5.1 relevantly includes the following:

5.1 INTRODUCTION

Well located and designed child care centres contribute to the well-being of children. Children and their caregivers require high quality service in centres that enhance the occupants’ well-being. Services must meet State Government standards and offer a safe, healthy and accessible environment. The design of a child care centre must serve the needs of children, babies, care giving staff, clerical staff, kitchen staff, cleaning staff and parents.

The design must provide adequate space for each of these groups, and take into account their needs in using and working in the centre.

Child Care Centres can have adverse impacts on the amenity and safety of an area, especially residential areas, through increased noise, traffic and parking impacts, and need to be considered in any development proposal.

16. Section 5.9 of DCP 2013 relevantly includes the following in relation to the drop off and picking up of children attending a childcare centre:

Objective

O1 To ensure the safe and efficient transfer of children to and from the child care centre.

Provisions

P1 Must provide car parking in accordance with Part B: Section 10 – Car Parking and Transport of the DCP.

P2 In addition to P1 above, one designated disabled access and one 2 designated emergency vehicle space must be provided on site in the R2, R3 and R4 zones, and within close proximity in the B1, B3 and B4 zones (e.g. on-street directly adjacent to the centre).

P3 Provide accessible parking spaces for the set down and pick up of children, no more than 50m from the child care centre.

P4 Car parking provisions do not substantially modify the streetscape.

P5 Spaces are clearly marked to reflect that they are for the exclusive use of the child care users between the peak am and pm hours of the centre (i.e. 7.30am-9.30am and 4.30pm-6.30pm).

P6 Where the parking is provided underground, that parking is located within 20 metres of a lift which has access to the child care centre.

P7 Secure, undercover pram storage should be provided at 1 space for every 2 children under two years of age.

17. Section 5.10 of DCP 2013 relevantly includes the following in relation to play spaces in a childcare centre:

Well-designed indoor spaces enhance the well-being of the users of the child care centre. The quality of the indoor space affects the level of child involvement and the type of interaction between staff and children.

Indoor space requirements refer to areas used by children for sleeping, eating and playing, and by staff for the caring of children and undertaking duties within the centre. Passageways, kitchens, toilets and shower areas, or other facilities such as cupboards, are not included when calculating this floor area.

Children require outdoor space so they can move freely and engage in vigorous play. Outdoor space also offers sensory stimulation, provided by different surfaces, exposure to fresh air, sunlight, wind and even rain.

Ideally outdoor space will be exposed to the sky to provide direct sunlight, breezes and fresh air, and will have access to shelter and shade. However it is recognised that in some child care centres, such as those located in commercial zones, the provision of this type of space can be difficult, and outdoor space may also be in the form of –

(a) Podium levels - Particular consideration must be given to access to daylight and sunlight, the safety fencing of outdoor play areas, noise and fire exits.

(b) Rooftops - Particular consideration must be given to the impact of winds, plant and machinery on nearby rooftops, safety fencing of the play area, and fire exits.

(c) Indoor / outdoor areas - Particular consideration must be given to isolating the children from the effects of noise, pollution and winds, and access to natural light and air. Planting, climbing equipment and visual features must provide an interesting and stimulating experience for the children.

5.10.1 Indoor spaces

Objectives

O2 Ensure that adequate indoor space is provided for children and staff to learn and grow.

Provisions

P1 A minimum of 3.25m2 of unencumbered indoor floor space per child care place must be provided.

Note: To ensure a reasonable level of amenity is achieved, provision 4.5m2 per child care place is considered to be best practice.

P2 In addition to P1, a minimum of 10m2 of unencumbered indoor floor space per employee must be provided to accommodate office space/s, staff room/s, sick bay area/s and adult toilet and shower facilities, located within the licensed floor area.

P3 Playroom spaces are to be designed such that they are not impeded by internal building features such as columns.

5.10.2 Transition Areas

A Transition Area comprises an indoor or outdoor area which performs an important role in helping extend children’s play into the outside areas (e.g. covered verandah or terrace).

Objectives

O1 Outdoor play in all weather conditions.

O2 Integration of indoor and outdoor play spaces.

O3 Transition areas that are safe, comfortable and of a functional size.

North Sydney Development Control Plan 2013 Child Care Centres

Provisions

P1 Transition areas must be located between the indoor space and outdoor space and be able to be supervised from outside of the area.

P2 The area may be included in calculations of outdoor unencumbered space.

Note: To ensure a reasonable level of amenity for the users of the facility, the provision of Transition Areas in addition to the minimum requirements for indoor and outdoor spaces is considered to be best practice.

P3 The area should be a minimum of 4 metres wide.

P4 The transition area must be designed to allow indoor and outdoor activities to be conducted undercover.

P5 The transition area must be designed in a manner that offers protection from unfavourable weather conditions, including strong winds and rainfall.

5.10.3 Outdoor space

Objectives

O1 Ensure that outdoor spaces allow children to play and experience sunlight, breezes and fresh air.

O2 Ensure that outdoor spaces provide an environmentally, safe and healthy area for play.

Provisions

P8 The playground space should be a compact square, rectangular or L-shaped area sited on one or two sides of the building, to facilitate functional use by children and effective supervision by staff.

5.10.4 Indoor-Outdoor spaces

Objectives

O1 To ensure useable outdoor space is provided for children regardless of locational constraints.

5.10.6 Fences

Objectives

O1 To ensure that fences complement the exist design features of the building, and adjoining buildings where appropriate,

O2 To ensure that fences provide maximum protection for children.

18. Section 5.11 of DCP 2013 relevantly includes the following in relation to visual and acoustic privacy in a childcare centre:

Good management of privacy issues ensures the child care centres are well integrated within the local context. While child care centres are beneficial within a community, there can be noise issues arising from the operation of the centre, which can be addressed by considering the location and orientation of outdoor space, driveways, parking and access. In residential areas the location of windows and doors can influence noise impacts on nearby homes.

5.11.1 Visual privacy

Objectives

O1 To ensure that both the users of the facility and adjoining property owners are afforded appropriate levels of visual privacy.

Provisions

P1 Provide screening by trees, fencing and window coverings to minimise overlooking and noise impacts.

P2 Locate any play structures at least 3m from any property boundary located adjoining a residential property.

5.11.2 Acoustic privacy

Objectives

O1 To ensure that the operation of the child care centre does not adversely impact on the acoustic amenity of adjoining properties.

Provisions

P1 All applications must be accompanied by an Acoustic Report prepared by a suitably qualified acoustic consultant.

P2 Noise levels (measured at any point on the boundary of the site between the proposed Centre and adjoining property) do not exceed 5dB(A) above the L90 background level during the hours of operation. Council may consider a variation to this requirement, but only if the applicant can adequately demonstrate that an alternative method of controlling the impact as outlined in the Association of Australian Acoustic Consultants’ Technical Guidelines – Child Care Centre Noise Assessment.

P3 Where practical, locate noisy areas such as outdoor play areas, vehicle access and pathways away from habitable windows of adjoining dwellings.

P4 Consideration is given to using appropriate noise reduction measures, such as:

(a) Appropriate location of areas of high noise generation;

(b) Double glazing on windows;

(c) Acoustic fences; and

(d) Construction materials incorporating sound insulation properties.

19. Section 10.2 of DCP 2013 relevantly includes the following in relation to parking provision:

10.2.1 Quantity Requirements

Objectives

O1 To ensure that sufficient car parking is provided on-site to cater for the users of the development.

O2 To minimise the reliance on private car usage.

O3 To facilitate the use of public and alternative transport modes including walking and cycling.

20. Table B – 10.3 – Parking rates for specific non-residential uses in DCP 2013 requires, for a childcare centre, a maximum parking rate of 1 space/2 employees with a maximum of 3 spaces for employees and 3 spaces/24 places and above for parents and a set down area for parents.

21. The relevant objective for loading and service facilities at 10.4 of DCP 2013 is to minimise the impacts of loading, deliveries and servicing operations on the safety and efficiency of the surrounding road system. The applicant submits that, pursuant to provision (e), it not practical to accommodate delivery and service vehicles on site due to the constraints of the heritage listing of the item and delivery and service vehicles associated with the proposal will park on-street.

22. The Australia ICOMOS Charter for Places of Cultural Significance (the Burra Charter) is cross referenced in DCP 2013, at sub-section 13.1.5.

23. Section 13.5 of DCP 2013 Heritage items, relevantly includes the following:

Heritage items are listed in Schedule 5 of NSLEP 2013. Heritage items can comprise land, works, vegetation, structures, moveable objects, places, buildings, groups of buildings or combinations of some or all of these elements.

Council adopts a “whole property” approach for heritage items. This is because the heritage significance of any heritage item normally relates to more than the front or street façade of buildings.

Council will consider the analysis and weighting of significance to various elements of a property. It is important to discuss the analysis with Council’s planning and heritage advisors, prior to the lodgement of any development application.

13.5.1 Protecting heritage significance

Objectives

O2 Allow change to occur to heritage items to meet amenity and contemporary safety, sustainability or technological standards, provided that those changes are sympathetic to and does not detrimentally affect the heritage significance of the heritage item.

Note: Development to heritage items should be sympathetic, and achieve a reasonable balance between contemporary expectations, environmental sustainability and protecting heritage significance.

O7 Ensure that new uses of heritage items are compatible with the fabric and heritage significance of the item.

Provisions

P1 Retain features (including landscape features) that contribute to the significance of the item.

P2 Remove unsympathetic elements, especially where substantial changes are proposed to a heritage item, and there is potential for an improved heritage outcome.

P3 New work is to be consistent with the setback, massing, form and scale of the significant features of the heritage item.

P4 Retain significant fabric, features or parts of the heritage item that represent key periods of the item’s history or development.

P5 Locate change away from original areas of the heritage item that are intact. For example, where a building’s significance is related to the front of a building, locate new work to the rear.

P6 All works are to be consistent with an adopted Conservation Management Plan/s where applicable.

13.5.5 Interior layouts

The floor plan of a heritage item is normally intrinsic to its built form. Retaining internal elements is often a good way to ensure structural security. Council seeks the retention of significant interior elements, as a building that retains its traditional layout and features is more likely to retain its significance than a building that has been extensively changed inside.

Objectives

O1 To ensure that significant interior elements are retained and preserved.

Provisions

P1 Applications are to be accompanied by current photographs of interior features, including walls, floors, ceilings, windows and fireplaces etc.

P2 Minimise change to the original or significant internal room configuration/layout (as appropriate) so that the evolution of the building remains discernable [sic]. This can be achieved by retaining wall nibs, decorative ceilings, joinery and original features such as fire places.

P3 Avoid locating kitchens or bathrooms within primary rooms of significance.

P4 Retain access and relationship to original building entrances and associated hallways.

P5 Retain significant internal original features including joinery, door sets, fire places, flooring, cornices and ceilings.

P6 Locate alterations away from rooms that have intact or significant features.

P7 Ensure new openings have similar dimensions or are compatible with existing openings, such as width and height of double doors.

P8 Provide for reversibility of internal changes (where appropriate and reasonable).

Expert evidence

24. The applicant relied on the expert evidence of Mr Jeff Mead (planning), Mr Graham Brooks (heritage), Ms Alina Dan (childcare) and Mr Craig McLaren (traffic) and Mr Michael Wynn-Jones (BCA compliance).

25. The Council relied on expert evidence from Mr Luke Donovan (planning), Mr Robert Moore (heritage), Dr Brenda Abbey (childcare) and Mr Chris Hallam (traffic).

Consideration

Building Code of Australia (BCA) (National Construction Code) compliance

26. Mr Wynne-Jones is an Accredited Certifier (Building) Grade 1. It is his evidence that compliance with the BCA is achieved by satisfying the Performance Requirements and this can be with a performance solution or a deemed to satisfy solution (DTS solution) or a combination of both. Mr Wynne-Jones gave the following evidence regarding issues raised in the Council’s contentions that concern the proposal’s compliance with the BCA:

• Use of the first floor verandah as an indoor play space: a 1m high barrier constructed on the inside of the existing wrought iron balustrade which has no horizontal barriers between 150mm and 760mm above finished floor level (FFL) would comply with the DTS provision of the BCA. The proposal includes a 1.2m high barrier to be constructed on the inside of the wrought iron balustrade.

• Use of the second stair between the meals/craft area on the ground floor and the Indoor Playroom No. 4 on the first floor: the need for a barrier to stop children accessing the stair is not a BCA requirement. The second stair does not need to be modified other than the addition of a handrail, as a performance solution for egress from the building in the event of a fire could be developed to demonstrate that the existing stair, with 20 risers and no landing, complies with the relevant performance requirement. The width of the existing stair, 915mm would be further reduced by the inclusion of an accessible chair lift and as the chair lift is not strictly required for access, because the ground floor is accessible, the chair lift should be deleted from the proposal. If the chair lift is deleted, the stair, with the addition of a handrail, would be adequate to facilitate egress in the event of a fire.

• Provision of sanitary facilities for staff and the use of the ground floor WC next to Indoor Playroom No. 9 for a nappy change area instead of a WC: compliance with the BCA requirements for facilities would be achieved with the proposal’s existing WC and the hand basin on the first floor, existing WC and hand basin on the ground floor of the outbuilding and the proposed unisex accessible WC and hand basin of the ground floor of the former garage being used for staff facilities. The location of the unisex accessible toilet is acceptable as there is no DTS provision in the BCA that restricts the accessible toilet from being accessed from an outdoor play area.

• The DTS provisions of the BCA (F2.3) require that a nappy changing bench must be positioned to permit a staff member changing a nappy to have visibility of the play areas at all times. The proposal, which does not permit the staff member changing a nappy in the proposed ground floor nappy change room to see the play area, is acceptable where an arrangement is in place via the Plan of Management (POM) that provides alternative staff to supervise the playroom while another staff member is changing a nappy.

• The proposal to widen the opening of two existing doorways that are less than 850mm: the two existing doorways on the ground floor that have a slightly narrower clearance than is required for disabled access do not need to be modified, as an access consultant assessing the proposal would take the constraints associated with the heritage listing into account.

• The glazing in existing windows on the first floor: the proposal to use an approved film applied to the existing glazing will meet the DTS provisions of the BCA and a barrier is not required.

• The proposed accessible pathway in the front garden: the access path adjacent to the existing path could be deleted and the existing path used for access to the childcare centre. Although this proposal would be a non-compliance with a requirement of the Disability (Access to Premises - Buildings) Standards 2010 (Premises Standards), it can be granted on the basis of ‘unjustifiable hardship’, at 4.1, which includes a consideration of loss of heritage significance in causing a detriment reasonably likely to be suffered by the people with a disability.

27. I accept Mr Wynne-Jones’ uncontested evidence regarding the proposal’s compliance with the relevant provisions of the BCA and the proposal is to be amended accordingly.

Impact of the proposal on the heritage significance of ‘Tarella’

28. The Council contends that the existing State listed heritage item is unsuitable for use as a childcare centre because the proposed works required will have an adverse and detrimental impact on its heritage significance.

29. Mr Hemmings submits that I should give weight to the permissibility of the proposed use is the R4 zone, however, I am of the view that the permissibility of the proposed use is a neutral factor in this matter (BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 [117]) as the State heritage listing presents a significant constraint for the future use of this place. In recognition of the special challenges often posed by heritage items in determining a future use, the conservation incentive clause, at cl 5.10 in LEP 2013, would permit the existing building to be used for any purpose if it facilitates the conservation of ‘Tarella’. For this reason, I do not give weight to the permissibility of the proposed use and instead, I am of the view that the compatibility of the proposed use with the existing fabric of the dwelling, its garden and setting, is determinative.

30. The advantage of using ‘Tarella’ as a dwelling is that it would perpetuate its original use, retaining this aspect of its heritage significance, however it is likely that any future owner wanting to use ‘Tarella’ as a dwelling or dwellings would make significant changes to the interior of the house, such as inserting additional bathrooms, as there are no bathrooms on the first floor (the existing bathroom is accessed from the landing of the stair) and there is one small WC on the ground floor, with wet areas in the attached outbuilding at the rear. In addition, ‘Tarella’ is positioned at the rear of the site, directly above the Warringah Freeway (M1) and the traffic noise is audible in the small area of outdoor space at the rear of the dwelling and in parts of the dwelling. For these reasons, it is my view that ‘Tarella’ is not ideally suited to being used as a dwelling, although it is a permissible and possible future use for the heritage item. I merely add this observation as this assumption that ‘Tarella’ would be best reverted to a single family dwelling underpinned some of the evidence provided, particularly by the resident objectors, and it cannot be assumed that the use of ‘Tarella’ as a single family dwelling would necessarily be ideal and have a lesser impact, when compared to other potential uses, on the fabric of the place. ‘Tarella’ has been previously used as boarding house and commercial offices.

31. Mr Moore accepted that the proposed use of ‘Tarella’ as a childcare centre is not inappropriate, however he is concerned that the cumulative effect of the interventions in the fabric of ‘Tarella’ will diminish the heritage significance of the place. According to Mr Brooks, any commercial use would require interventions and these can be carefully managed to minimise their impact on the fabric of ‘Tarella’.

32. The application is an Integrated Development Application as the site is listed on the State Heritage Register. A letter sent to the Council on behalf of the Acting Manager of Conservation, Heritage Division, Office of Environment and Heritage (exhibit 6) raised the following issues (in dot points):

• “1. The proposed landscaping works modifying the front garden will have a significant adverse impact on the item’s semi-formal designed garden setting, aesthetic, views and presentation from Amherst Street. Extensive acoustic fencing to western boundary, additional brick ramped paving, raised timber deck, handrails, outdoor sandpit play area, large umbrella shade structures and a high row of dense hedge screen planting adjacent to the house along with a wide 1200mm high steel palisade security fencing behind front boundary fence, will all visually impact on the item.”

• “2. Accessible concrete pathway at 1:14 gradient with intermediate landings and a bronze handrail to both sides located adjacent to eastern boundary, extending from front entrance forecourt up to the house entry will have a significant adverse impact on the item.”

33. Following Mr Wynne-Jones’ evidence, the second accessible pathway to the front garden is to be deleted. I accept Mr Moore’s evidence that the herringbone brick paving proposed to the existing front path is unnecessary and the existing front path is to be retained and repaired/maintained if necessary. The proposed cantilevered parasols are retractable and as there is ample shade provided by the existing hedge along the eastern side boundary, it is likely the parasols will only be used in summer. The parasols dotted on the ground floor plan have a diameter of approximately 4m when scaled from the drawing (exhibit A). The two retractable parasols are to have a maximum diameter of 4m each (condition C1(m), exhibit 13 is to be amended) in order to provide adequate shading for 10 children and their carers during summer. The proposed ‘olive green’ colour/shade of the parasols is to be specified on the plan. There is no acoustic fence proposed in the front garden. The proposed front hedge is to be maintained at a height to match the new internal fence and a condition imposed on the consent to this effect. The proposed fence and gate inside the existing fence is necessary for the security of the children and a low hedge matching the height of the new fence and in front of the new fence will soften its appearance and not obstruct views of ‘Tarella’. The sandpit may be retained in the proposal as it does not interfere with views of ‘Tarella’ and its setting and it is easily reversible in the future. The timber decking is on the western side of the existing verandah and will not interfere with views of ‘Tarella’. There is no dense hedge screen planting proposed in the existing garden beds in front the dwelling, the note on the landscape plan (exhibit A) reads, ‘Existing plants retained, removal of weed species, supplemented with Victorian era planting both garden beds’. The handrails to the front stair are necessary, discrete and unobtrusive. I am satisfied that the amendments to the proposal will address the issues raised by the Heritage Council by retaining the garden setting to ‘Tarella’ and the existing appearance of ‘Tarella’ when viewed from Amherst Street.

• “3. Replacing paling fence to Outdoor Play Area 1 on site’s east boundary with a new acoustic barrier paling fence 1800mm height + 600mm high glass angled extension to top and sound absorbing construction, returning to house and garage. The fence proposed is non-traditional in design, material and profile and will have a high adverse impact on the item’s presentation, setting, local views of the item from Tarella Place and its appreciation by the public.”

34. The applicant agreed during the hearing to relocate the acoustic fence in Outdoor Play Area 1 to the western side of the existing hedge along the eastern boundary adjacent to Tarella Place. The acoustic fence will not be easily visible from the public domain in this location. I am satisfied that the acoustic fence, located on the inside of the existing hedge to Outdoor Play Area 1 will not have a detrimental impact on the heritage significance of or views of ‘Tarella’.

• “4. Addition of sound absorbing material affixed to all four wall faces bounding Outdoor Play Area 2 including house walls between 900mm and 2100mm height. Walls will be wrapped with an acoustic barrier and absorptive material infilling all gaps, barrier to be finished with horizontal timber slats, continuous to all faces. Historic fabric will be adversely impacted by the numerous masonry fixings which are to be used wherever required for attaching the sound absorbing materials and timber slats, battens and rails to the walls of the house. The 20mm air gap proposed between the acoustic material and the masonry walls could prevent the release of moisture and not allow the walls to ‘breath’ naturally, resulting in the delamination and disintegration of the masonry surface. This action could potentially have a high adverse impact on item’s fabric and significance.”

35. Outdoor Play Area 2 is a 49.1sqm area on the western side of the dwelling, outside the meals/craft area and the office and is not visible from the public domain. I accept the Heritage Council’s concern in relation to fixing the sound absorbing material to a section of the western elevation of the dwelling. The sound absorbing material can be removed on the western façade outside Indoor Playroom No 1, as this is a passage way to access Outdoor Play Area 2 and not a play area, so children will be transiting through this outdoor space only for a short time. The passage way will benefit from the sound absorbing material fixed to the inside of the boundary fence. The sound absorbing material on the northern elevation of the nappy change and toilets is acceptable as this is an outbuilding and not part of the original dwelling, as is the sound absorbing material fixed to the boundary fence. The applicant is to either delete the sound absorbing material from the western elevation of the dwelling forming Outdoor Play Area 2, or propose an alternative measure acceptable to the Council to combat the noise generated in this space.

• “5. Penetrations and fixing through external and internal masonry walls, original doors opening being widened and joinery removed or replaced, encasement of marble fireplaces, modifications to primary and secondary stairs, air conditioning units to principal rooms on ground floor will all have a significant adverse impact on its room arrangements, significant fabric, its aesthetic attributes and presentation. This action will have a high adverse impact on the item’s significance.

36. The proposal is to attach a fine black wire mesh within a black channel to the front opening of the fireplaces (exhibit M), which will leave the fireplace surrounds intact and visible. The air-conditioning units are proposed to be positioned on ground in the eastern side setback adjacent to the cot rooms. Only the rooms on the eastern side of the ground floor, two cot rooms and Indoor Playroom 3, are proposed to be air-conditioned. I accept that there will be some discrete penetrations of the masonry wall associated with the air-conditioning of these rooms and that this work will be carried out under the supervision of a heritage architect (condition C 13, exhibit 13). Following Mr Wynne-Jones’ evidence, the secondary stair modifications are to be deleted, other than the addition of a handrail and safety gates and the proposed widening of two doors on the ground floor is to be deleted. The room arrangements on the ground floor are retained in the proposal.

• “6. Addition of a new 1200mm high frameless glass barrier balustrade with bronze balusters installed inside line of existing balustrade, continuous to perimeter of first floor front verandah. This work to comply with BCA requirements adds a new reflective element to the highly significant front verandah with an intrusive non-traditional structure. It will have a high adverse impact on the item’s aesthetic attributes, presentation and views from Amherst Street. Tis action will have a high adverse impact on the item’s significance.”

37. The addition of the 1200mm high frameless glass barrier inside the wrought iron balustrade (detail 51, exhibit A) is acceptable and will not detrimentally impact on the heritage significance or appearance of ‘Tarella’. A second internal, discrete balustrade is a common solution in buildings of heritage significance with low balustrades or balustrades with foot holds, for example, the Mint and the Queen Victoria Building, Sydney.

• “7. The proposal to modify the existing secondary rear stair by enlarging the opening to stair well, relocating existing timber balustrade and adding new balustrade as required, installing a bronze handrail to top of existing balustrade and to stair, adding a stairlift seat and rail mounted off wall will have an [sic] high adverse impact on a significant element. Its location and historic documentary evidence suggests this early or original stair is most probably the former servant’s access stair between upstairs bedrooms and ground floor kitchen/back of house areas. The item’s fabric, arrangement, historic interpretation and representation would be highly adversely impacted by the major alterations proposed.”

• “8. Lack of any reconfigured architectural details to illustrate how the existing secondary rear stair can be used as a BCA compliant accessible fire stair is a serious omission. It is noted that the submitted design with stair tread winders, clear stair width of 800 minimum and 19 no. risers [sic] without an intermediate landing are all non-compliant with the BCA. The stair as designed could not be used as a required fire exit to the 1st floor, as indicated in the Evacuation Plans, and would require a major reconfiguration to comply with the BCA. This rebuild would have a high adverse impact on the item’s significance.”

38. Following Mr Wynne-Jones’ evidence, the secondary stair modifications are to be deleted, other than the addition of a handrail and safety gates.

• “9. The architectural drawings accompanying the application are inadequate as they do not document all the required works or accurately indicated extent of works i.e. no demotion plan was submitted. Side elevations do not show the full extent of the landscape works proposed to the front garden and side courtyards. Street elevation (north) does not show the cumulative impact of all the proposed landscape works on views and presentation of the house and garden from Amherst Street. Lack of plans or details have been provided regarding installation of mechanical services, penetrations to fabric, required pathway lighting, fire/hydraulic/electrical services trenching ground works proposed for the significant front garden. The omission of a legend from site, ground and first floor plans to cross-reference the various colour coded rooms and elements shown did not assist with legibility.”

• “10. The Conservation Management Plan submitted, written by GBA Heritage and dated 11 March 2011 is inadequate and does not ensure ongoing best-practice conservation management for the property. It is deficient as the guiding document for the future management of the item by focusing only on the change of use to a childcare centre and does not proposed options for other potential uses. Its methodology concentrates on the achievement of ‘alternative technical compliances’ and ‘functional outcomes’ in relation to a future childcare centre. This approach is an attempt to mitigate the major issues raised by the NSC in the their Statement of Facts and Contentions and the Heritage Council in its issued GTR comments but does not proposed many specific conservation policies. Manly of the policies seem to relate to the previous development application which was refused. They have been informed by the amended Detailed Statement of Heritage Impact prepared on 28 August 2015 which addresses previous plans and not the current application and does not address potentially intrusive item’s proposed for the front garden like the new steel palisade fence, accessible pathway and acoustic boundary fencing. It is also noted that a site specific Plan of Management and an interpretation Strategy are referred to in the CMP but have not been submitted as part of the application.

• “11. The architectural and landscape plan documentation, Conservation Schedule of Works and Detailed Statement of Heritage Impact 3 Amherst Street, Cammeray are not entirely consistent with the CMP in either scope or content. It is also an omission that no photomontage or elevation of proposed development from the principal Amherst Street view has been submitted to show scale and context of works to the front garden and its urban setting.”

39. The architectural documentation is satisfactory for the purpose of development consent. The architectural documentation complies with the Court’s Practice Note Class 1 Development Appeals Schedule A and includes relevant details. The CMP, dated 11 March 2016 (exhibit E) substantially complies with the relevant provisions of the Heritage Division of the Office of Environment and Heritage publication, ‘Conservation Management Plan: A checklist’ dated September 2003 and the Conservation Schedule of Works (exhibit F) is consistent with the CMP and adequate. A photomontage is not required to properly understand the proposal.

40. The heritage experts disagreed on the most appropriate detail for the proposed gate to be used in existing internal doorways. The applicant tendered two options (exhibit N). Mr Brooks and Mr Moore are to agree on an option for the gates in existing internal doorways and this design is to be included in the architectural documentation. Condition C1(i) of exhibit 13 is to be amended to reflect the agreement of the heritage experts.

41. Although the development application is not made pursuant to cl 5.10(10) of LEP 2013, the Conservation Schedule of Works (exhibit F) is relied on by the applicant. The conditions of consent (exhibit 13) are to include a reference to the schedule at condition A1 so that the conservation works are tied to the development consent, so as to ensure the benefits of the proposal in terms of the conservation and maintenance of the existing place are realised. The CMP should also be referenced in condition A1.

42. I accept that inevitably there will be a number of modifications to the fabric existing dwelling and garden, however, I am satisfied that following the amendments made to the proposal throughout the hearing and in the directions in this judgment, that the proposed use of ‘Tarella’ as a childcare centre is acceptable and will not have a detrimental impact on the cultural heritage significance of the item.

Total number of children at the childcare centre

43. Mr Hemmings submits that it does not form part of my task to be satisfied that the proposal complies with federal law because the provision of childcare services is a highly regulated industry, requiring a provider approval for the applicant and a service approval for the premises following the granting of development consent and the applicant will be required to demonstrate that the proposal complies with all the relevant provisions of the regulations in order to obtain the service approval. A service approval is a service approval under the National Law Alignment Provisions (Children (Education and Care Services) Supplementary Provisions Act 2011).

44. The evidence of the childcare experts is relevant to my consideration of the proposal for two reasons; firstly that I may be satisfied that the proposal is capable of being granted a service approval following development consent and secondly, in relation to the total number of children to be accommodated by the proposal. While it is possible to grant development consent for a greater number of children than may be consented to by the service approval, the requirements of DCP 2013 in relation to childcare centres reflects the Education and Care Services National Regulations (“Regulation” tab 4, exhibit 2) and are a relevant consideration and furthermore, the total number of children at a childcare centre has consequences for parking requirements and other amenity impacts on the neighbourhood. Careful consideration of the maximum number of children permitted to attend a childcare centre cannot be postponed until a service approval and nor should I rely on the service approval to further constrain the maximum number of children.

45. Mr Galasso submits that while the Council opposes the granting of any development consent for the proposal; however if development consent is to be granted then a maximum of 60 children would be an appropriate number for the following reasons:

• the evidence of Dr Abbey that certain areas should be excluded from the total floor area calculation and that areas within the rooms have not excluded storage areas;

• the formula of 3.25sqm per child results in a fraction of a child being allocated to some rooms and this should be rounded down to an integer; and

• the greater the number of children the greater the impact on the fabric of the building and the heritage significance of ‘Tarella’.

46. Section 28 Space requirements—centre based education and care services of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 (“Supplementary Regulation” tab 5, exhibit 2) includes the following in relation to calculating the maximum number of children in a childcare centre based on the unencumbered indoor floor space provided:

(2) The premises of a centre based education and care service must have at least 3.25 square metres of unencumbered indoor play space per child that is exclusively for the use of children provided with education and care while in attendance at the service.

(3) For the purposes of calculating unencumbered indoor play space, items such as any passage way or thoroughfare, door swing areas, kitchen, cot rooms, toilet or shower areas located in the building or any other facility such as cupboards and areas set aside as referred to in subclause (1) are to be excluded.

47. The experts agreed that the unencumbered floor space for children’s indoor play is no more than 266.1sqm, however Dr Abbey qualified her agreement as follows:

• The first floor verandah (Indoor Play Area 10) is unsuitable as an indoor play area and should not contribute to the unencumbered floor space calculation, as the verandah provides little protection from the elements, is not easily supervised as it is only 2.3m wide and in a L shape and could not be considered a play space in its own right as it is accessed via another play room.

• The meals/play area should not contribute to the calculation of unencumbered floor space, as it is designated for particular uses associated with activities complementary to the actual play spaces; it is a thoroughfare to the children’s toilets and nappy change area as the circulation between the playrooms and the toilets/nappy change cuts diagonally across the meals/craft room; it is an ancillary space to the kitchen and bottle preparation area and is not a play space

48. The experts agreed that the area of a verandah may be included in calculating the area of an indoor space, with the written approval of the Regulatory Authority and if it is included, the Plan of Management (POM) must detail its use and include a supervision management plan based on a detailed risk assessment.

49. I accept and prefer Dr Abbey’s evidence regarding the calculation of unencumbered floor area. I am not satisfied that either the first floor outdoor verandah (32sqm) or the meals/play area (15.5sqm) are suitable for use as playrooms and therefore these areas should not contribute to the calculation of unencumbered floor space for the reasons elaborated by Dr Abbey.

50. I accept Mr Galasso’s submission regarding the formula of 3.25sqm per child resulting in a fraction of a child being allocated to some rooms and that this should be rounded down to an integer. For this reason, the calculation for the maximum number of children per play room is as follows:

Room	Area	Number of children (3.25sqm)
Indoor Play Room 1	32.1	9
Indoor Play Room 2	20.8	6
Indoor Play Room 3	31.2	9
Indoor Play Room 4	34.3	10
Indoor Play Room 5	21.6	6
Indoor Play Room 6	17.5	5
Indoor Play Room 7	14.5	4
Indoor Play Room 8	32.1	9
Indoor Play Room 9	14.5	4
TOTAL	218.6	62

51. The experts agreed that the total floor area includes a deduction for storage areas, although Dr Abbey was of the view that no space has been allocated for lockers. Given that I have deleted the fraction resulting from the formula from each room, there will be some additional area remaining in most rooms for lockers.

52. Play Area 3, in the front garden, has been limited to a maximum of 10 children and passive play, due to a constraint imposed by the acoustic consultant. The experts agreed that this constraint will be dealt with by the POM.

53. The experts agreed that the hearth of the fireplaces in most of the play rooms are a trip hazard and will require a barrier or fence.

54. Dr Abbey had some reservations about the nappy room on the ground floor being a separate room outside the playroom and not an area connected to the playroom and the connectivity of rooms in general. I am satisfied that a separate nappy change room is a matter than can be adequately dealt with by the POM as can any issues raised by the connectivity of rooms and that the proposal for a separate nappy change room on the ground floor is not a determinative issue.

55. I am satisfied that based on the existing room dimensions, a maximum of 62 children can be comfortably accommodated by the proposal and on the basis of all the evidence before me, the proposal is capable of achieving a service approval.

Whether there is sufficient on-street parking available for parents

56. The parties agreed that given the heritage constraint of the existing site, it is not appropriate to have any parking for parents located on the site and parents’ parking is to be located on-street in Amherst Street.

57. DCP 2013 at Table B-10.3 requires a maximum of 3 spaces for staff of a childcare centre and the proposal satisfies this requirement with 3 parking spaces provided in the garage and the service courtyard behind the garage.

58. DCP 2013 at Table B-10.3 requires 3 car parking spaces as a maximum parking rate for parents’ parking and a set down area for childcare centres with 24 places and above. The drop off and pick up of children, at 5.9 of DCP 2013, requires that accessible parking spaces be provided in accordance with the maximum rates specified in Table B-10.3, no more than 50m from the childcare centre. In Mr Hallum’s view, the DCP 2013 is ‘poorly worded’, as the requirement for a set down area and whether it is in addition to the 3 spaces required is not clear.

59. The applicant’s application to Council’s traffic committee to have 3 time restricted parking spaces kerbside in front of ‘Tarella’ during peak drop off and pick up times was refused.

60. The traffic experts disagreed on the demand for car parking spaces in Amherst Street that the proposal would generate. According to Mr Hallum, the proposal would require 8 spaces during the peak drop off time from 7am until 9am and the peak pick up time from 4pm until 6pm, based on 1 parking space per 10 children. According to Mr McLaren the proposal would require 6 on-street parking spaces during those periods. I accept Mr Hallum’s evidence regarding the number of parking spaces required during peak periods on the cautious basis that is his evidence requires the greater number of parking spaces and as the proposal is to be amended by direction to 62 children, 6 on-street parking spaces are required at any one time during the peak drop off and pick up times.

61. The experts agreed that there are 3 parking spaces within 50m of the entry to the site available during the peak periods for drop off and pick up, as required the DCP 2013 maximum requirement of 3 parking spaces for parents parking. I accept their agreement that the proposal, while not providing those parking spaces on-site, does satisfy the requirements of DCP 2013 at table B-10.3. Mr Hallum notes that DCP 2013 has additional requirements for parking at Section 5.9.

62. The experts agreed that the on-street parking spaces are to be located only on the southern side of Amherst Street due to the safety risk of crossing the street with a small child if parents park on the northern side of Amherst Street.

63. The experts provided an on-street parking survey and a map dividing Amherst Street into ‘zones’ (Annexure E, exhibit 9). On the southern side of Amherst Street, the zones start at the corner of Amherst Street and Miller Street as zone A and progress to the west with zone E extending to the corner of Amherst Street and West Street. The experts agreed that zones B, C and D are within 50m of the entry to the site. Zone B has 2 parking spaces (Mr Hallum is of the view that zone B has only 1 parking space), zone C has 2 parking spaces and zone D has 5 parking spaces. Zone E contains 9 parking spaces, of which 4 are within 50m of the entry to the site according to Mr Hallum and 5 are within 50m of the site according to Mr McLaren. The difference between the experts is due to Mr McLaren measuring 50m from the north-western corner of the site and Mr Hallum measuring 50m from the entry gate to the site. Adopting Mr Hallum’s interpretation of 50m, there are 13 on-street parking spaces within 50m of the site and on the southern side of Amherst Street.

64. The parking surveys undertaken individually by the experts are included in Annexure E, exhibit 9. One survey is for zones C and D (Table 1) and the second survey is for zones C, D and E (Table 2). A survey was not undertaken for a distance 50m from the site on the southern side of Amherst Street, so it is not possible to determine how many available parking spaces within zone E are within 50m of the site in Table 2. Furthermore, the survey excludes zone B which is within 50m of the site. The surveys are taken at 15 minute intervals. I have used the results in table 2 as the basis of my findings because table 1 disregards 6 parking spaces within 50m of the site. I accept that 5 parking spaces within zone E are further than 50m from the site on the basis of Mr Hallum’s calculation, however zone B, which is within 50m of the site and has 1-2 parking spaces, is not included in either survey.

65. During the morning peak period, there are at least 6 parking spaces available according to Mr McLaren’s survey, taken each day for a week 9-13 November 2015 (table 2). According to Mr Hallum’s survey, taken on 10 November 2015, there are three 15 minute intervals with 5 parking spaces available, the remaining five intervals have 6 or more parking spaces available.

66. During the afternoon peak period, there are at least 6 parking spaces available during the first hour and 5 and 4 parking spaces available the second hour according to Mr McLaren’s survey. There are at least 6 spaces available for one hour of the afternoon peak and 5, 4 and one interval of 3 parking spaces available during the remaining intervals according to Mr Hallum’s survey.

67. According to Mr McLaren, the existing timed parking restrictions in Amherst Street provide for a high turnover of cars within the street, unlike a low density residential area where there are no parking restrictions. Mr McLaren notes that the DCP 2013 requirements for parking for childcare centres are general requirements that extend across the local government area, including low density residential areas, and therefore do not account for the high turnover in Amherst Street or the likelihood of multi-purpose trips for drop offs and picks up to this proposal given its proximity to shopping in the Cammeray town centre. In his view, it is likely that parents will also use the 52 space Stocklands carpark close to the site to drop off their children and avail themselves of the services in that development, including shops and cafes. Mr Hallum disagrees with having any regard to a multi-purpose trip and he notes that someone using on-street parking or a carpark for a multi-purpose trip will remain parked in that space for longer. I accept and agree with Mr McLaren’s evidence regarding the likelihood of a multi-purpose trip as the proposal is located within the Cammeray town centre, however I have not given any consideration in my deliberations to parking availability in the Stocklands building or a multi-purpose trip.

56. The experts agreed that service vehicles would use on-street parking in Amherst Street for deliveries to the childcare centre during the day and there are sufficient parking spaces for service vehicles on-street during the day.

57. I am satisfied that the proposal meets the requirements for childcare parking in DCP 2013. The objectives for the quantity requirements for the provision of parking at 10.2.1 are to ensure that sufficient car parking is provided on-site to cater for the users of the development, to minimise the reliance on private car usage and to facilitate the use of public and alternative transport modes including walking and cycling. To meet these objectives, DCP 2013 Table B-10.3 adopts maximum parking rates. The maximum parking rate for staff of childcare centres of 3 spaces is met by the proposal. The maximum 3 spaces for childcare centres of 24 places and above is met by the availability of on-street parking in the vicinity of the site, as agreed by the experts.

58. The proposal does not include a ‘set down area’ as the parents’ parking is on-street. As a consequence, parents will be required park their car and to deliver or pick up their child/children to and from the childcare centre and acknowledge this by signing the daily register which is a requirement of the childcare service regime. For this reason, a set down area in addition to parking spaces, where parents are not permitted to leave the car, is of no benefit to a childcare centre. Alternatively, if the set down area is the 3 parking spaces, the experts agreed that the proposal meets the requirements of table B-10.3 with 3 on-street car parking spaces available during all intervals of peak drop off and pick up times.

59. The proposal satisfies P1 of Section 5.9 of DCP 2013, to provide car parking in accordance with the table B-10.3, as agreed by the experts.

60. The proposal includes one designated disabled access vehicle space as one of the staff parking spaces in the garage, satisfying P2 of Section 5.9 of DCP 2013. An emergency vehicle space is not provided on-site, but presumable could be provided in lieu of a staff parking space in the garage in the event of an emergency or on-street in Amherst Street. I am satisfied that the location of the site and the layout of the proposal allows for an emergency vehicle to access the proposal in the event of an emergency.

61. The 3 spaces required by table B-10.3 meet the requirements of P3, accessible parking spaces for the set down and pick up of children, no more than 50m from the childcare centre. I accept the agreement of the experts that there are at least 3 parking spaces within 50m of the front gate of the proposal during each interval of the peak periods of the day. The 6 spaces required according to Mr Hallum are 3 spaces in addition to the requirements of DCP 2013 and therefore those additional 3 parking spaces need not meet the requirement of P3. The experts’ surveys demonstrate that Mr Hallum’s estimate of 6 spaces for 62 children are available on-street during the peak periods, if not within 50m of the site, within close proximity of the site, as the shortfall of 1-3 spaces in Mr Hallum’s survey for some intervals during the peak periods are very likely to be met by the zones in Amherst Street excluded from the survey.

62. P4 of Section 5.9 of DCP 2013 is met as the on-street car parking will not modify the streetscape. P5 and P6 are not relevant to the proposal as the parking spaces are on-street. P7 is met by the proposal with secure pram storage provided on-site.

63. As the proposal satisfies the parking requirements for childcare centres in DCP 2013, I am satisfied that the proposal meets the objective of Section 5.9 to ensure the safe and efficient transfer of children to and from the childcare centre and that there is sufficient on-street parking for parents during peak times to drop off and pick up the 62 children at the childcare centre.

Location of waste area

76. The planning experts agreed that the location of the waste area adjacent to the pram storage is acceptable.

Directions

77. The parties agreed, in the event that I considered the proposal could be granted development consent, that I was to make directions to amend the proposal and the conditions of consent, as there were elements of uncertainty in the proposal during the hearing as a result of the applicant making amendments to deal with the various experts’ evidence. I accepted their agreement and I made the following directions in a judgment handed down on 1 July 2016:

The accessible pathway adjacent to the eastern boundary of the site is to be deleted and the existing pathway retained, with the proposed raised section connecting to the timber decking on the western side of the front verandah to provide accessible access to the front verandah;

The existing front fence and gates are to be retained;

Condition C1(n) is to be deleted;

A condition is to be added to ensure that the hedge in front of the proposed inside fence is maintained at a similar height to the new fence, so that views of ‘Tarella’ from Amherst Street are retained;

The existing front path is to be retained;

The olive green shade of the parasols is to be noted on the plans. The parasols are to be a maximum diameter of 4m each (condition C1(m));

Note 16 on the architectural plans is to be amended so as to retain the existing width of the door openings;

Exhibit M showing the wire mesh to fireplaces is to be added to the architectural plans;

The existing WC on the ground floor is to be noted as a nappy change room as proposed by the applicant;

The existing stair between the meals/craft area on the ground floor and the Indoor Playroom No. 4 on the first floor is to be retain and handrail and gates to be added as proposed by the applicant;

The acoustic barrier to Outdoor Play Area 1, on the eastern boundary, is to be positioned on the western side of the existing trees to avoid significant pruning of the existing trees adjacent to the boundary;

The sound absorbing material fixed to the western elevation of ‘Tarella’ is to be deleted;

Condition C1(i) is to be amended to reflect the agreement of the heritage experts regarding the design of the gates to the internal doorways;

The Schedule of Conservation Works and CMP are to be added to condition A1;

Items in condition C1 than can be noted or shown on the architectural plans are to be added and any amendments required by the list in C1 (excluding (i) and (n)) are to be shown on the architectural plans. The statement in condition C1, ‘The amended architectural plans incorporating (a) to (o) above must be to the written satisfaction of Council’s Conservation Planner prior to the issue of any Construction Certificate’ is to be deleted.

The childcare centre is to be for a total of 62 children.

The applicant is to file and serve the amended plans no later than 29 July 2016 and the respondent is to file agreed conditions of consent, for a childcare centre to accommodate a maximum of 62 children, no later than 5 August 2016.

Liberty to restore on two days’ notice.

78. The applicant filed the amended documentation in accordance with the Court’s directions on 15 August 2016 and the Council filed the conditions of consent on 15 August 2016. Accordingly, I make the following orders:

Orders

79. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 382/2014 for alterations and additions to an existing premises and use as a childcare centre for 62 children with hours of operation 7.30am to 6pm Monday to Friday at 3 Amherst Street, Cammeray is approved, subject to the conditions of consent at Annexure ‘A’.

3. The exhibits, other than exhibits 1, 13 and A, are returned.

_____________________

Susan O’Neill

Commissioner of the Court

166728.16 O'Neill - 3 Amherst St 01 SITE Rev J AUG (867 KB, pdf)

166728.16 O'Neill - 3 Amherst St 03 FIRST Rev M AUG (429 KB, pdf)

166728.16 O'Neill - 3 Amherst St 02 GROUND Rev M AUG (1.10 MB, pdf)

166728.16 O'Neill - 3 Amherst St 04 ELEVATIONS Rev G AUG (525 KB, pdf)

166728.16 O'Neill - POM - final as at 12 August 2016 (552 KB, pdf)

166728.16 O'Neill (C) (325 KB, pdf)

**********

Decision last updated: 19 August 2016