Carpenter Street Centre Pty Ltd atf The Carpenter Street Centre Trust v Penrith City Council

[2024] NSWLEC 1005

Land and Environment Court

New South Wales

Medium Neutral Citation:

Carpenter Street Centre Pty Ltd atf The Carpenter Street Centre Trust v Penrith City Council [2024] NSWLEC 1005

Hearing dates:

1-3 November 2023

Date of orders:

16 January 2024

Decision date:

16 January 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   The development application (DA22/0926) for the demolition of existing structures and the construction of a 58 place child care centre with parking for 14 vehicles and ancillary works, at 246 Carpenter Street, St Marys, is determined by the grant of consent subject to the conditions in Annexure A.

(3)   Exhibits 1, 2, 5, 6, 8, 9 and 13 are returned and the remaining exhibits are retained.

Catchwords:

APPEAL – development application – centre based child care facility in residential area – compatibility with the character of the local area – compliance with setback controls for predominant land use – amenity of lower ground level indoor play areas

Legislation Cited:

Education and Care Services National Regulations 2011, reg 110

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2021 ss 24, 38

Penrith Local Environmental Plan 2010, cll 4.3, 4.4, 7.4, 7.30

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.25, 3.26

Cases Cited:

Acorp Developments Pty Ltd v Council of the City of Ryde [2022] NSWLEC 1028

Basevski v City of Ryde Council [2022] NSWLEC 1387

Davies v Penrith City Council [2013] NSWLEC 1141

Entrepreneur Enterprises Pty Ltd v Lane Cove Municipal Council [2023] NSWLEC 1323

Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Salanitro-Chafei v Ashfield Council [2005] NSWLEC 366

Veloshin v Randwick Council [2007] NSWLEC 428

Texts Cited:

Australian Building Codes Board, National Construction Code, 2022

Australian Uniform Building Regulations Co-ordinating Council, Building Code of Australia, 1988

NSW Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

Penrith Development Control Plan 2014

Category:

Principal judgment

Parties:

Carpenter Street Centre Pty Ltd as trustee for The Carpenter Street Centre Trust (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
N Hammond (Respondent)

Solicitors:
Mills Oakley (Applicant)
Dentons (Respondent)

File Number(s):

2023/21189

Publication restriction:

No

Judgment

1. COMMISSIONER: At 246 Carpenter Street, St Marys, Carpenter Street Centre Pty Ltd as trustee for the Carpenter Street Centre Trust (CSC) seeks development consent for the demolition of an existing residential dwelling and the construction of a childcare centre. CSC lodged a development application with Penrith City Council (the Council) on 5 October 2022. The development application was refused on 19 January 2023, and CSC lodged the present appeal against that decision on 20 January 2023, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. At the hearing, the Council approved an amendment to the development application pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The proposed development, as amended, is for demolition of the existing dwelling and the construction of a three-storey child care centre for 58 children, with parking for 14 vehicles. The proposed development is to operate between 8am and 6pm, for 8 children aged 0-2 years, 10 children aged 2-3 years and 40 children aged between 3-6 years. It proposes to have a lower ground floor containing three separate play areas and an outdoor play area, an upper ground floor comprising the parking area and entry reception, and a first floor containing an indoor play area and an outdoor play area. The parking area on the upper ground floor cantilevers over the outdoor play area on the lower ground floor.

3. The Council remains opposed to the grant of development consent on the basis that the proposed development is not compatible with the character of the local area, and the amenity of the lower ground play areas is not acceptable. Both issues arise from the design of the development with parking at the upper ground floor, which results in side setbacks and a rear built form presentation that the Council says are not acceptable, and a lower ground floor that is below the natural ground level, which precludes adequate light and ventilation for the lower ground floor play areas. Other contentions raised by the Council have been resolved.

4. For the reasons set out below, I have determined that the design of the proposed development is compatible with the character of the local area and that the side setbacks are acceptable. I have also found that, despite the undesirability of subterranean play areas, the amenity of the indoor play areas on the lower ground floor is nonetheless acceptable. For those reasons, none of the contentions raised by the Council warrant refusal of the development application and I have determined to grant development consent subject to conditions.

The site and the locality

5. The site is legally described as Lot 4 DP 374120 and known as 246 Carpenter Street, St Marys. It is rectangular in shape, with a frontage of 18.29m to Carpenter Street and a depth of 60.35m, and a total area of 1103m². It slopes away from the street, with a fall of around 7m from the front to the rear boundary, which equates to a gradient of 12%.

6. The site is situated in a low density residential area characterised by one or two-storey dwelling houses on large residential lots. Some dual occupancy and secondary dwelling developments are located within the visual catchment of the site. A number of the residential dwellings within the visual catchment have large concrete hardstand areas in their front setback. Most of the residential dwellings on the southern side of Carpenter Street to the east of the site are single dwellings with large rear yards, and, due to the topography of the area, enjoy views over their western side boundaries to the blue mountains.

The planning framework

7. The site is zoned R2 Low Density Residential pursuant to the Penrith Local Environmental Plan 2010 (PLEP), and development for the purpose of centre based child care facilities is permissible in the zone. The objectives of the zone are as follows:

• To provide for the housing needs of the community within a low density residential environment.

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

• To promote the desired future character by ensuring that development reflects features or qualities of traditional detached dwelling houses that are surrounded by private gardens.

• To enhance the essential character and identity of established residential areas.

• To ensure a high level of residential amenity is achieved and maintained.

8. The proposed development complies with the height of buildings development standard of 8.5m that arises pursuant to cl 4.3 of the PLEP, and cl 4.4 of the PLEP does not impose a development standard for floor space ratio (FSR) on the site.

9. Clause 7.4 of the PLEP applies to the site and concerns sustainable development. It provides:

7.4 Sustainable development

In deciding whether to grant development consent for development, the consent authority must have regard to the principles of sustainable development as they relate to the development based on a “whole of building” approach by considering each of the following—

(a) conserving energy and reducing carbon dioxide emissions,

(b) embodied energy in materials and building processes,

(c) building design and orientation,

(d) passive solar design and day lighting,

(e) natural ventilation,

(f) energy efficiency and conservation,

(g) water conservation and water reuse,

(h) waste minimisation and recycling,

(i) reduction of vehicle dependence,

(j) potential for adaptive reuse.

10. Clause 7.30 of the PLEP requires planning and design measures to be incorporated to reduce the urban heat island effect. The operative provision is in cl 7.30(3), which provides that:

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that planning and design measures are incorporated to reduce the urban heat island effect that—

(a) maximise green infrastructure, and

(b) retain water in the landscape, and

(c) use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and

(d) use building, paving and other materials that minimise heat impacts, and

(e) reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources.

11. The expert town planners agree that these matters are addressed by the ESD Assessment Report dated 1 August 2023, although a dispute remains concerning solar access to and ventilation of the indoor play areas on the lower ground level.

12. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) concerns childcare facilities and applies to the proposed development. Section 3.23 of the SEPP TI requires consideration of the Child Care Planning Guideline (CCPG), as follows:

3.23 Centre-based child care facility—matters for consideration by consent authorities

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, in relation to the proposed development.

13. The Child Care Planning Guideline (CCPG) contains design quality principles in Part 2, considerations and design guidelines in Part 3, and how to apply the national regulations to development proposals in Part 4. The design quality principles include ensuring that the design responds and contributes to its context (principle 1), that it achieves a scale, bulk and height appropriate to the existing or desired future character (principle 2), that it delivers high quality and adaptive learning spaces (principle 3), that it achieves sustainable design (principle 4), that the landscape and buildings are integrated to result in attractive development (principle 5), that it is of good design that positively influences internal and external amenity (principle 6), and that it optimises the use of the built and natural environment for safe learning and play (principle 7).

14. Part 3.1 of the CCPG concerns site selection, and at C1 sets out considerations concerning different planning zones. For proposed child care centres in or adjacent to a residential zone, consideration of the following is required:

“For proposed developments in or adjacent to a residential zone, particularly if that zone is for low density residential uses consider:

• the acoustic and privacy impacts of the proposed development on the residential properties

• the setbacks and siting of buildings within the residential context

• visual amenity impacts (e.g. additional building bulk and overshadowing, local character)

• traffic and parking impacts of the proposal on residential amenity and road safety”

15. Part 3.2 of the CCPG concerns local character, and at C5 it provides:

“The proposed development should:

• contribute to the local area by being designed in such a way to respond to the character of the locality and existing streetscape

• build on the valued characteristics of the neighbourhood and draw from the physical surrounds, history and culture of place

• reflect the predominant form of surrounding land uses, particularly in low density residential areas

• recognise and respond to predominant streetscape qualities, such as building form, scale, materials and colours

• include design and architectural treatments that respond to and integrate with the existing streetscape and local character

• use landscaping to positively contribute to the streetscape and neighbouring and neighbourhood amenity

• integrate car parking into the building and site landscaping design in residential areas

• in R2 Low Density Residential zones, limit outdoor play space to the ground level to reduce impacts on amenity from acoustic fences/barriers onto adjoining residence, except when good design solutions can be achieved.”

16. Part 3.3 of the CCPG contains specific considerations in relation to design, with objectives to respond to the streetscape and site, mitigate impacts on neighbours, and to ensure setbacks and scale are compatible with adjoining development. The terms of each of these considerations are set out in more detail further below.

17. Section 3.25 of the SEPP TI imposes a maximum FSR of 0.5:1 for “a centre-based child care facility in Zone R2 Low Density Residential” if a maximum FSR does not already apply to the site pursuant to another environmental planning instrument or a development control plan. It is agreed that the proposed development complies with this FSR.

18. Section 3.27 of SEPP TI sets out the extent to which the provisions of a development control plan applies to a proposed centre-based child care facility. It provides:

3.27   Centre-based child care facility—development control plans

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

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

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

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

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

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

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

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

19. The wording of s 3.27(1)(d)(ii) is not straightforward, but it means that any applicable provisions of the Penrith Development Control Plan 2014 (PDCP) concerning building height, side and rear setbacks or car parking rates will continue to apply, whereas other provisions in the PDCP that relate to the design principles in Part 2 of the CCPG, the considerations in Part 3 or the requirements in Part 4, do not.

20. Section 5.2 of Part D5 of the PDCP relates to child care centres, and Part D2 concerns residential development and includes, at Section 2.6, provisions for non-residential development in a residential zone. Section 5.2 of Part D5 does not contain any numerical controls relating to scale, design or built form. In relation to design, scale and site frontage, Section 5.2 contains the following controls:

“a) The scale and character of the development shall be compatible with surrounding development.

b) The design of the child care centre must take into account nearby traffic generators, street design and the existing environment for pedestrians and cyclists.

c) Sites must be of sufficient area to accommodate the child care centre, all required associated parking and traffic manoeuvring areas.

d) To ensure the safe operation of car parking areas and the amenity of neighbouring residents, sites shall have a minimum frontage of 22m.

e) Safe sight distances must be provided for all points of access to the site.”

21. The controls concerning built form in Section 5.2 of Part D5 include the following:

“b) In residential areas, the built form of the child care centre shall be sympathetic to adjoining development in terms of height, bulk and scale.

c) The external façade of the centre shall incorporate building materials and colours that complement the surrounding development. Council discourages the use of bright or garish colours.”

22. Section 2.6 of Part D2 concerns non-residential development in a residential zone. It is stated to provide specific controls “for non residential development in residential zones in addition to the general controls elsewhere in this DCP”. It therefore applies in addition to Section 5.2 of Part D5. Its stated objective is that “Non-residential development should be planned and designed according to principles of traditional suburban design, and to preserve the amenity of residential neighbourhoods.” The controls are as follows:

“1) Principles of urban form and urban design that apply to permissible residential development should be adopted for non-residential development.

2) Particular attention should be paid to:

The development site including front setbacks, rear setbacks dual frontage situations.

a) Urban form including:

i) traditional building design features;

ii) traditional garden frontages;

iii) orientation of building entrances;

iv) continuously occupied rooms facing the street;

v) detailed consideration of significant townscapes or landscapes;

vi) signs.

vii) driveways and parking including:

• provision of on-site parking appropriate to the proposed use, and in accordance with the parking requirements of this DCP;

• minimise site coverage by paved areas;

• conceal garages from views available from public parks and streets;

• locate driveways and parking areas away from any neighbouring residential development;

b) landscaped area- provision and design of the required minimum area with detailed design of gardens and paving;

c) side setbacks to provide for effective landscaped separation from adjacent developments;

d) solar planning and energy efficiency - minimised overshadowing of adjacent properties and minimise requirements for mechanical heating and cooling of interiors;

e) privacy - protect the amenity of adjacent properties;

f) storage and building services - sufficient to meet requirements generated by the proposed development and located to protect the amenity of adjacent developments.

g) privacy – protect the amenity of adjacent properties;

h) storage and building services – sufficient to meet requirements generated by the proposed development and located to protect the amenity of adjacent residents.”

23. The operation and application of these provisions of the PDCP is considered further below.

The expert evidence

Town planning evidence

24. Expert evidence on the town planning issues was given in a joint report and a supplementary joint report by Mr David Haskew, a town planner engaged by the Council, and Mr Jonathon Wood, a town planner engaged by CSC.

25. Mr Haskew and Mr Wood agree that the presentation of the proposed development to the street is acceptable. They also agree that the retention of the Brushbox in the front setback is important for streetscape character, and that the removal of the two other trees is acceptable in circumstances where there will be substantial replacement plantings through the rear yard and outdoor play areas. However, Mr Haskew opines that the ground floor level carpark protrudes to the rear in a manner that is not compatible with the character of the area, and also that the amenity of the lower ground floor play rooms is unacceptable. Mr Wood instead opines that the building envelope is acceptable in the circumstances and that the play areas have adequate amenity, meeting the Building Code of Australia (BCA) standards for both natural light and natural ventilation.

Traffic evidence

26. Expert evidence on the traffic impacts of the proposed development was given in a joint report prepared by Mr Haskew, Mr Wood, and Mr Ramy Selim, a traffic engineer engaged by CSC.

27. They agree that each of the matters raised by the Council concerning car parking has been resolved. In particular, they agree that forward direction egress is achieved for the off street parking, that safe intersection sight distance is achieved, that a condition of consent can be imposed to require two bicycle parking spaces, that the stacked parking arrangement is acceptable, that the accessible parking space should be allocated to visitor parking, and that the internal driveway width is adequate. Further, with the number of the children reduced to what is now proposed, they agree that there is sufficient car parking provided.

Landscaping

28. Expert opinion evidence on the landscaping issues was given in a joint report prepared by Mr Haskew and Mr Brady, a landscape architect engaged by CSC. In their joint report, they remained in disagreement with respect to the landscaping within the front setback. Whereas Mr Brady considers that the extent of landscaping proposed was acceptable in the streetscape context and contributes positively to the landscape character of the area, Mr Haskew instead opines that the proportion of hard paving to landscape area is inconsistent with the landscaped character of the surrounding area.

29. However, Mr Haskew also opined that the hardstand area could be acceptable as permeable pavers with landscaping around the vehicular driveway and central pedestrian pathway. The Council has since agreed that it will be acceptable to have coloured concrete in the hardstand area with landscaping around the vehicular driveway and central pedestrian pathway, and has proposed a condition of consent requiring amended landscape plans that show both this landscaped treatment and ochre coloured stencil concrete within the shared zone of the disabled accessible carparking space.

Stormwater

30. Expert opinion evidence on the issues concerning stormwater design was given in a joint report and supplementary joint report prepared by Mr Millad Rouhana, a stormwater engineer engaged by CSC, and Mr Caleb O’Reilly, a stormwater engineer employed by the Council. Mr Rouhana and Mr O’Reilly agree that the Revision G drainage plans that were annexed to the supplementary joint report, and now form part of the proposed development, provide the location of the rainwater tank and the design of the onsite detention tank and cross-sections. They also agree that the legal point of discharge proposed by the stormwater design in the Rev G drainage plans requires the creation of an easement for drainage over the land at 45 Moira Crescent, which the parties have agreed can form the basis for a deferred commencement condition.

Water sensitive urban design

31. Expert opinion evidence on the issues concerning water sensitive urban design was given in a joint report prepared by Mr Rouhana, and Mr Alexander Bryce, the catchment management officer employed by the Council.

32. Their agreed evidence is that the outstanding issue concerning stormwater treatment can be dealt with by way of a condition of consent requiring a site-specific operation and maintenance manual. They have agreed on the terms of the condition, which has been incorporated in the conditions of consent proposed by both parties.

The resident objector evidence

33. The proposed development was publicly notified from 24 October to 7 November 2022. Three unique written submissions were received, including a pro forma letter sent by 14 people. In addition, local residents gave evidence at the site inspection at the commencement of the hearing. The issues raised in the written submissions and at the hearing can be summarised as follows:

• Traffic impacts and pedestrian safety issues from the additional traffic of the proposed development, particularly in circumstances where there is a history of accidents in the vicinity of the site, including a fatal accident near the intersection of Carpenter Street and Monfarville Street.

• Absence of a demand for a child care centre.

• The site is not suitable for the proposed development in circumstances where it is steep site and narrow block.

• Privacy, overshadowing and view loss impacts on the adjoining development at 244 Carpenter Street.

34. With respect to the issues concerning increased traffic, the Class 1 Application was supported by a Traffic and Parking Impact Assessment dated 12 August 2022, which carried out an analysis of the impact of the proposed development on the traffic network. The assessment concluded that the traffic generation from the proposed development will have a “low impact on existing flows on Carpenter Street and surrounding streets and will not have adverse impacts on the current operational performance of the subject existing intersection” (Ex A). Therefore, whilst it is unfortunate that there have been car accidents at that intersection, there is no evidence that the proposed development will have an adverse impact on the operation of that intersection.

35. In relation to the existence of other child care centres in the area, s 3.26(2)(a) of the SEPP TI provides that “the development may be located at any distance from an existing or proposed early education and care facility”, and s 3.27 of the SEPP TI makes it clear that any provisions of the PDCP that specify a requirement to demonstrate need or demand for child care services, or that specify a control in relation to the proximity of a facility to other early education and care facilities, do not apply.

36. In relation to the other concerns, they are dealt with in my consideration of the contentions below.

Contentions that are resolved

37. As a result of amendments to the development application, together with the evidence in the joint reports, a number of contentions raised by the Council in its Amended Statement of Facts and Contentions have been resolved, as follows.

Application documentation (Contention 1)

38. The Council, in its Amended Statement of Facts and Contentions, raised a contention that the application does not include an arboricultural impact assessment, contrary to s 24 of the EPA Regulation 2021. However, an arborist report dated 24 October 2023 has now been provided, and this contention is resolved.

39. As set out above, Mr Wood and Mr Haskew agree that the Brushbox can and should be retained, and that two other trees in the front setback can be removed.

Floor space ratio (contention 2)

40. The Council had also contended that the proposed development contravened the FSR development standard. However, as set out above, it is now agreed that the proposed development complies with the FSR maximum imposed in the SEPP TI, which is 0.5:1.

Signage (contention 6)

41. The Council raised a contention that proposed signage, previously included in the development application, was not acceptable. As a result of the amendments to the development application, the proposed development no longer includes signage, and this contention is therefore resolved. The parties agree that the signage can be sought in a separate development application, and that this can be made clear by way of a condition of consent.

Landscaping (contention 7)

42. The Council also raised a contention that the landscaping provided was inadequate. However, as set out above, the experts now agree that the landscaping in the front setback will be acceptable with landscaped treatment around the vehicular driveway and central pedestrian pathway. They also agree that there is adequate landscaping in the rear yard and outdoor play areas. This contention is therefore resolved.

Car parking (contention 8)

43. The Council contended that there was inadequate car parking for the proposed development. As set out above, Mr Haskew, Mr Wood, and Mr Selim agree that the issues raised by the Council concerning car parking have been resolved. Further, with the reduction in the number of children to 58 in an amendment to the development application, the number of car parking spaces that will be provided on-site complies with the controls in the PDCP. Section 4.15(3A)(a) of the EPA Act operates to prevent a consent authority requiring more car parking spaces than what is required by the PDCP, and this contention is therefore resolved.

Waste management (contention 11)

44. The Council also contended that the proposed development did not include waste infrastructure or demonstrate that waste will be adequately managed. However, Mr Haskew and Mr Wood agree that this is resolved as the plans show bin storage, and the traffic report provides for waste to be collected kerbside by a private contractor.

Stormwater (contention 12)

45. The Council’s contention concerning stormwater drainage related to an earlier proposal to drain water to Carpenter Street. This contention is now resolved, as the proposal is to drain water to the rear of the property. Mr Rouhana and Mr O’Reilly agree that the Rev G drainage plans that form part of the proposed development are appropriate for the drainage of the site, although this will necessitate an easement over the property to the rear and further development consent will be required to carry out works within the easement.

Water sensitive urban design (contention 14(a))

46. As set out above, the contention raised by the Council concerning the requirement for a manual for stormwater treatment is resolved as Mr Rouhana and Mr Bryce agree that it can be dealt with by way of a condition of consent requiring a site-specific operation and maintenance manual.

Bulk, scale, setbacks and character

47. The Council remains opposed to the proposed development on the basis that it is not compatible with the character of the local area. In particular, the Council contends that its built form does not contribute to its context (contention 3) and that the proposed development does not comply with the building envelope and setback controls in the PDCP (contention 4).

48. This issue largely relates to the impact of the car parking level at the upper ground floor. Mr Haskew and Mr Wood agree that this area contributes to the bulk of the building, affects the aesthetics of the proposed development, and has the potential for impacts to be experienced on adjoining properties.

49. The Council says that this car parking level creates a built form that dominates the site, is unsympathetic and insensitive to the character of the area, lacks articulation and does not comply with the building envelope controls that would require a greater side setback at the upper ground floor (carpark) level.

50. As described above, Part 3.1 of the CCPG, at C1, requires consideration of the “setbacks and siting of buildings within the residential context”, as well as visual amenity impacts. Part 3.2, at C5, requires the proposed development to contribute to the local area “by being designed in such a way to respond to the character of the locality”, to “reflect the predominant form of surrounding land uses” and to “recognise and respond to predominant streetscape qualities”.

51. Part 3.3 of the CCPG contains specific considerations that relate to the built form for child care centres. In particular, C11 provides:

“Orient a development on a site and design the building layout to:

• ensure visual privacy and minimise potential noise and overlooking impacts on neighbours by

o facing doors and windows away from private open space, living rooms and bedrooms in adjoining residential properties

o placing play equipment away from common boundaries with residential properties

o locating outdoor play areas away from residential dwellings and other sensitive uses

• optimise solar access to internal and external play areas

• avoid overshadowing of adjoining residential properties

• minimise cut and fill

• ensure buildings along the street frontage define the street by facing it

• ensure where a child care facility is located above ground level, outdoor play areas are protected from wind and other climatic conditions.”

52. C12 of Part 3.3 of the CCPG concerns building height and setbacks, and in relation to setbacks states that “setbacks to the street should be consistent with the existing character”. C13 and C14 have the objective to “ensure setbacks from the boundary of a child care facility are consistent with the predominant development within the immediate context”, and provide the following:

“C13 Where there are no prevailing setback controls minimum setback to a classified road should be 10 metres. On other road frontages where there are existing buildings within 50 metres, the setback should be the average of the two closest buildings. Where there are no buildings within 50 metres, the same setback is required for the predominant adjoining land use.

C14 On land in a residential zone, side and rear boundary setbacks should observe the prevailing setbacks required for a dwelling house.”

53. As set out above at [19], pursuant to s 3.27(1)(d)(ii) of the SEPP TI, the applicable provisions of the PDCP concerning building height, side and rear setbacks or car parking rates will continue to apply to the proposed development, in conjunction with the provisions in the CCPG. Both the PDCP and the CCPG are matters for consideration pursuant to s 4.15(1)(a) of the EPA Act, with the CCPG a matter for consideration pursuant to s 4.15(1)(a)(i) of the EPA Act and through s 3.23 of the SEPP TI.

54. However, the PDCP does not, in fact, have numerical setback controls that apply to child care centre developments. Neither Section 5.2 of Part D5 nor Section 2.6 of Part D2 contain numerical standards for setbacks for child care centres. The only control relating to side setbacks is at B(2)(c) of Section 2.6 of Part D2 “to provide for effective landscaped separation from adjacent developments”.

55. The control in Section 2.6 of Part D2 of the PDCP requiring that “principles of urban form and urban design that apply to permissible residential development… be adopted for non-residential development” does not operate to impose the setback requirements for dwelling houses on non-residential development. Instead, the reference to “principles of urban form and urban design” relates to those parts of Part D2 that provide the controls and objectives for “urban form” (see Sections 2.2.4, 2.4.4 and 2.5.4) and “urban design” (see Sections 2.2.10, 2.4.10 and 2.5.10), which do not provide numeric controls for setbacks but instead focus on design measures to complement existing character. This includes showing “characteristics of traditional suburban development: dwellings oriented to face the street, building forms stepped or articulated, and integrated with the shape of surrounding garden areas” (Sections 2.2.4, 2.4.4 and 2.5.4) and adopting “the prominent width, height and scale of existing buildings” (Section 2.4.10).

56. Nevertheless, the CCPG requires, at C14, that a child care centre have side boundary setbacks that “observe the prevailing setbacks required for a dwelling house”. The “prevailing setbacks required for a dwelling house” include the setbacks required to meet a building envelope control. Despite the submissions to the contrary made by CSC on this point, building envelope controls are setback controls where they require particular setbacks to achieve compliance with the envelope. The setback and building envelope controls for a dwelling house are contained in Section 2.1.2 of Part D2 of the PDCP, and include, most relevantly, the requirement for the built form to be within a building envelope that is a height plane over the site at 45 degrees from 1.8m above natural ground level at the side boundaries.

57. In addition, I note also that, in the extracts of the PDCP provided at the hearing, there is no numeric control for the minimum landscaping area required for development for the purposes of a child care centre. Neither Section 5.2 of Part D5 nor Section 2.6 of Part D2 contain numeric standards for the same. In his evidence, Mr Haskew relies on the numeric standards that apply to dual occupancies. The reference in (2)(b) of Section 2.6 of Part D2 to “the required minimum area” of landscaping does not actually indicate what that required minimum area is, or what part of the PDCP it should be taken from.

The evidence in support of the Council’s position

58. In support of the Council’s position that the proposed development is out of character in the locality, it relies on the evidence of Mr Haskew. Mr Haskew adopts a four step methodology to assess character, based on the planning principles in Veloshin v Randwick Council [2007] NSWLEC 428, Davies v Penrith City Council [2013] NSWLEC 1141 and Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191.

59. In using that methodology, Mr Haskew reaches the conclusion that the proposed development is incompatible with the character of the local area based on both a quantitative and qualitative analysis. His quantitative analysis is that, when compared to either a complying dwelling house or a dwelling house constructed in accordance with the PDCP, the floor area of the proposed development (including the car parking area) is between 30 to 77% larger than what would be anticipated on the site, and the setbacks of the upper ground floor would be required to be greater than that proposed. This is shown in Figure 1.

60. In his qualitative assessment, Mr Haskew opines that the car parking upper ground floor level causes the overall building to be awkwardly proportioned, contrary to well-proportioned buildings that have upper levels with less floor space than the lower levels. He opines that this is contrary to the appearance of a visually solid building base, a concept described as “good manners”. Further, Mr Haskew’s evidence is that the non-compliant side setbacks at that upper ground floor level bring the perceived weight of the building closer to neighbours, and, when compared to the relatively small scale of existing dwellings in the locality this, together with a lack of articulation, exacerbates the perceived bulk. As a result of this bulk, Mr Haskew considers that the proposal does not fit into the character of the area, and is “demonstrative of poor design” with “bulk and scale impacts which will be born [sic] by adjoining owners.”

The applicant’s position that the built form is acceptable

61. CSC’s position is instead that the proposed development is compatible with the character of the local area. CSC points out that the locality is predominantly single dwellings, and the proposed development complies with the controls for dwelling houses with respect to the front setback, the ground level side setback and the rear setback, and landscaped area. CSC therefore submits that the proposed development meets C14 of the CCPG, ensuring that the setbacks from the boundary are consistent with the predominant development within the immediate context.

62. CSC relies on the evidence of Mr Wood, who opines that the design of the proposed development adopts building elements which are typical of development in the area, and will be read in the streetscape as being in keeping with the predominant character of the area. CSC points out that neither of these points are disputed by Mr Haskew.

63. CSC submits that the existence of one element that is uncharacteristic of the local area does not render the entire proposed development incompatible. Specifically, CSC says that the enclosure of the parking area in the upper ground floor and its softening with landscaping are such that this component will not be perceived as a parking structure and is not dissimilar to what would be seen for a residential dwelling.

64. Further, CSC submits that it is inappropriate to use a quantitative analysis based on dwelling house controls to assess compatibility, in circumstances where there is no FSR development standard under the PLEP and there are a range of other permissible forms of development that can be carried out on the site.

The built form is acceptable

65. Contrary to the Council’s position, I find that the built form is compatible with the existing and desired future character of the surrounding area, and is appropriately designed with adequate setbacks at each level and sufficient articulation. I reach this conclusion for the following reasons.

66. Firstly, I accept the agreed evidence that, as perceived from the street and the public domain, the proposed development is designed in a manner that is compatible with the existing and desired future character of the surrounding area. I accept the evidence of Mr Wood that its presentation is comparable to a 2-storey dwelling house from the street frontage, and the landscaping proposed in the front setback is of high quality. I accept Mr Wood’s evidence that presentation to the street is a fundamental contribution to the character of an area, and that character is most easily read from that presentation, where compatibility is most critical to ensure a good ‘fit’ in the streetscape. I accept his evidence that the perception of bulk and scale from neighbouring properties, and issues concerning side and rear setbacks, are of less importance to character outcomes. Consistent with Mr Wood’s evidence, the proposed development will sit comfortably in the streetscape with an overall compliant building height and a 2-storey form comparable to development in proximity, a façade and presentation that is suitably articulated and modulated, a pitched roof form similar to development in the locality, and with materials and finishes that are responsive to elements that exist in development in the locality. As opined by Mr Wood, the proposal achieves a landscaped setback that is compatible with the streetscape, and the provision of a hardstand space is not out of character. The proposed development also integrates the car parking into the building, consistent with C5 of Part 3.2 of the CCPG, which means that the front setback is not comprised of the centre car park and remains consistent with the prevailing character. I accept Mr Wood’s evidence that the bulk at the rear will not be perceived from the street, largely due to the landscaping on the eastern side and the stepping of the side setback away from the side boundaries as the built form extends into the site.

65. I therefore find that the proposed development is designed with a presentation that is compatible with the existing streetscape character. It is consistent with the considerations in Part 3.2 of the CCPG, which include responding to the character of the locality and the existing streetscape, recognising the predominant form of the surrounding dwelling houses, and incorporating design and architectural treatments that “respond to and integrate with the existing streetscape and local character”.

66. Secondly, although the design of the proposed development, as it extends deeper into the site, is larger than that observed in the locality, it does not depart from any applicable PDCP numerical controls. A proposed development cannot be expected to comply with numerical controls that do not apply. As set out above, neither Section 5.2 of Part D5 nor Section 2.6 of Part D2 of the PDCP contain numerical standards for setbacks for child care centres. Control B(2)(c) in Section 2.6, Part D2 of the PDCP requires side setbacks “to provide for effective landscaped separation from adjacent developments”. This is achieved on the eastern side, with landscaping extending the full length of the eastern boundary, and to the extent that it is not achieved on the western side, there is no impact as the separation is instead provided by an access handle on the adjacent site. Therefore, the proposed development cannot be said to be incompatible with the future character based on a non-compliance with the numerical setback controls, as there are no such controls in relation to a child care centre.

67. Thirdly, I consider that the design of the proposed development provides adequate side setbacks. Consideration C14 of Part 3.3 of the CCPG requires the side and rear setbacks to “observe the prevailing setbacks required for a dwelling house”, and the proposed development achieves substantial compliance with those setbacks. The only setback for a dwelling house with which the proposal does not comply is the requirement for the upper ground floor and first floor setbacks to be within the building envelope defined by the height plane over the site at 45 degrees from 1.8m above ground level. The proposed development complies with the requirements for the rear setback, ground level side setback, front setback and landscaped area for a dwelling house, contained in Part D2 Section 2.1 of the PDCP. The rear setback for a dwelling house is required to be 6m, and the proposed development provides a rear setback of 23.77m to the upper ground floor or 28.6m to the lower ground floor. Side setbacks to the external walls of a dwelling house are required to be minimum of 900mm, and the proposed development has a western side setback of 900mm at the front of the site, which increases to 1.29m for most of the building length, and an eastern side setback of 960mm which increases to 1.875m for most of the building length. In addition, on the eastern side, the first floor is setback 3.5m. On that sensitive eastern boundary interface, the elements that breach the building envelope for dwelling houses are confined to the top edge of the upper ground floor, the top edge of the first floor, and the pitched roof form. This is not a substantial departure from what is required for a dwelling house, and I accept Mr Wood’s evidence that the stepped setbacks proposed are sufficient. I also accept his evidence that the western side boundary is not a sensitive interface given that it adjoins an access handle, and additional setbacks at the upper ground and first floor levels are not required in that context. Having regard to all of these applicable setback controls for a dwelling house, and the particular nature of the departure from the setbacks required to comply with the building envelope, the proposed development is consistent with C14 of Part 3.3 of the CCPG by adequately observing the setbacks required for a dwelling house.

68. Fourthly, I find and that any impacts on the adjoining neighbours from the appearance of the built form and its bulk is consistent with what is anticipated by the zoning of the site and the controls in the PDCP. The standards in the PDCP allow for rear setbacks of 6m, and there is no FSR development standard that applies to this site or its surrounds. In addition, the PDCP does not provide numerical side or rear setback controls, or controls for a minimum landscaped area, for non-residential development in the residential zone. Accordingly, I accept the evidence of Mr Wood that the visual impact of the proposed built form is acceptable in circumstances where it has a compliant building height and provides a large rear setback that removes any mass from the rear of the site. Whilst it is unfortunate that the residents of 244 Carpenter Street will lose their outlook to the west toward the Blue Mountains from the rear patio, I accept the evidence of Mr Wood that the departure from the building envelope control for dwelling houses does not cause any greater impact on views than if there was strict compliance, and in fact the proposed development reduces its impact by confining the built form to the front portion of the site. By doing the latter, the proposed development is also compatible with the ‘open character’ of the rear yards. I accept Mr Wood’s evidence that the cantilevered upper ground floor component is not excessive and does not impact the presentation to the adjoining properties in any meaningful way. There are also no adverse privacy impacts from the proposed development, and adequate solar access to adjoining properties is maintained.

69. Fifthly, any visual impact caused by the perception of bulk or the built form height at the rear is confined to the eastern side boundary, and is adequately mitigated by the provision of landscaping for the full length of the eastern side boundary. Landscaping is provided at both the ground level and upper ground floor level. I accept Mr Wood’s evidence that this reduces the perceived bulk of the built form and ameliorates the visual impact to that adjoining dwelling to the east. On the west, there is no sensitive interface or adjoining neighbour that would be impacted by an adverse visual impact, as the access handle on the adjoining site provides adequate separation from the built form of the proposed development.

70. Finally, I do not accept Mr Haskew’s quantitative consideration concerning floor area as guide for compatibility, for two reasons. The first reason is that the point of comparison used is a dwelling house, which ignores the fact that there are a range of other permissible land uses in the R2 Low Density Residential zone in which the site is located. This includes dual occupancies, secondary dwellings, community facilities, respite day care centres, and group homes. It is well established that compatibility does not require “sameness”, and, given the range of permissible uses in the zone and the existence of other forms of residential uses in the immediate locality, I accept the submission made by CSC that dwelling houses are not a benchmark against which to assess compatibility.

71. The second reason that I do not accept Mr Haskew’s quantitative consideration is that the assumption that future development would be required to have a FSR of 0.5:1, based on the application of the planning principle in Salanitro-Chafei v Ashfield Council [2005] NSWLEC 366 (Salanitro-Chafei), is wrong. The planning principle considers what FSR might be applicable to achieve consistency with the character of an area of single storey dwellings with “a high level of consistency of scale and character” (see Salanitro-Chafei at [3]). Mr Haskew and Mr Wood both agree that in the present case, the local area comprises a mix of one and two-storey dwellings, and that new development is typically two storeys with a larger bulk and scale than the existing single storey stock. There are also dual occupancies in the visual catchment, which have greater density, at 221 and 227 Carpenter Street and 52A Montfarville Street. Mr Wood and Mr Haskew agree that a gradual transition and redevelopment of the locality is likely, particularly on those lots that contain single storey dwellings. As such, the character of the local area is different to that in Salanitro-Chafei and there is no basis to assume that a FSR of 0.5:1 is required to achieve compatibility in the streetscape, particularly given that there is no applicable FSR development standard.

72. For the above reasons, although the design of the proposed development contains an element that can be described as undesirable, the design is nonetheless acceptable and does not warrant refusal of the development application. Contrary to what is contended by the Council in contentions 3 and 4, the proposed development responds to and contributes to its context, and has site coverage, bulk, setbacks, landscaping and roof form that are consistent with the existing and desired future character of the low density residential area. It is consistent with the objectives of the R2 Low Density Residential zone as it is development that reflects features or qualities of detached dwelling houses, and enhances the essential character of the established residential area. It is therefore compatible with the character of the area, consistent with the character considerations required by Part 3.2 of the CCPG, and is also consistent with the design considerations required by Part 3.3 of the CCPG. The design provides adequate articulation, without an excessive building length, and presents to the street in a manner that is consistent with a dwelling house. Accordingly, none of the issues raised in contentions 3 and 4 warrant refusal of the development application (although elements in contentions (3)(h), (j) and (k) are dealt with separately below).

Amenity of the indoor play areas at the lower ground floor

75. The Council contends that the proposed development should be refused as it does not provide adequate amenity to the children and the staff of the child care centre (contention 5). The issue arises due to the sub-terranean nature of the indoor play areas located on the lower ground floor. Their floor level is between 200mm and 3.15m below the natural ground level, with large floor-to-ceiling sliding doors to the south where the upper ground level cantilevers above the outdoor play area to an extent of up to 6.8m depth. This can be seen in Figure 2.

76. The Council’s position is that these indoor play areas, which are three play areas that extend from the north of the site to the south, have inadequate natural light, solar access, and ventilation. The depth of the proposed indoor play areas is up to around 19m, with a ceiling height of 2.7m.

77. The Council relies on regulation 110 of the Education and Care Services National Regulations 2011 (National Regulations), which concerns ventilation and natural light, as follows:

110 Ventilation and natural light

The approved provider of an education and care service must ensure that the indoor spaces used by children at the education and care service premises—

(a) are well ventilated; and

(b) have adequate natural light; and

(c) are maintained at a temperature that ensures the safety and wellbeing of children.

Penalty: $2200.

78. Part 4 of the CCPG provides design guidance on how the National Regulations may be met, and Part 4.4 of the CCPG relates to reg 110. Part 4.4 makes it clear that child care facilities “must comply with the light and ventilation requirements of the National Construction Code”, and contains the following design guidance for ventilation and natural light:

“Design guidance

Ventilation

Good ventilation can be achieved through a mixture of natural cross ventilation and air conditioning. Encouraging natural ventilation is the basis of sustainable design; however, there will be circumstances where mechanical ventilation will be essential to creating ambient temperatures within a facility.

To achieve adequate natural ventilation, the design of the child care facilities must address the orientation of the building, the configuration of rooms and the external building envelope, with natural air flow generally reducing the deeper a building becomes. It is recommended that child care facilities ensure natural ventilation is available to each indoor activity room.

Natural light

Solar and daylight access reduces reliance on artificial lighting and heating, improves energy efficiency and creates comfortable learning environments through pleasant conditions.

Natural light contributes to a sense of well-being, is important to the development of children and improves service outcomes. Daylight and solar access changes with the time of day, seasons and weather conditions. When designing child care facilities consideration should be given to:

• providing windows facing different orientations

• using skylights as appropriate

• ceiling heights.

Designers should aim to minimise the need for artificial lighting during the day, especially in circumstances where room depth exceeds ceiling height by 2.5 times. It is recommended that ceiling heights be proportional to the room size, which can be achieved using raked ceilings and exposed trusses, creating a sense of space and visual interest.”

79. The Council’s position is supported by the evidence of Mr Haskew, whose evidence is that natural light, natural ventilation, careful site planning and building envelope changes to respond to site opportunities and constraints “are the foundational principles on which almost all town planning controls are designed” (Ex 3 p 39). Mr Haskew opines that the underground play areas are “the antithesis of good design” as areas of the spaces are “completely reliant on mechanical ventilation” (Ex 3 p 37). Mr Haskew relies on the provisions of the Apartment Design Guide concerning the quality of natural ventilation and daylight access, which prescribe a maximum distance from a window of 8m or 3 times the floor to ceiling height for single aspect apartments. Mr Haskew opines that the fact that the indoor play areas far exceed this maximum distance means that they do not have adequate natural light or ventilation. He considers that the use of any virtual windows or skylights is “to trick children into believing that they are not in an underground, airless, windowless space, by use of virtual windows and skylights”.

80. In relation to solar access, Mr Haskew points out that C11 of Part 3.3 of the CCPG requires that a development on a site is to be oriented and designed so as to “optimise solar access to internal and external play areas”. Solar access is defined in the CCPG as being “[t]he ability of a building to continue to receive direct sunlight without obstruction from other buildings or impediments, not including trees.” Mr Haskew gives evidence of his calculations of the actual solar access to the indoor play areas at 9am and 3pm on 21 June, with the diagram at Figure 3 showing the area of the play rooms in which sunlight would touch part of a person at 9am or 3pm. Based on this calculation, he considers that the solar access to the indoor play areas is inadequate.

81. CSC’s position is instead that the proposed development has maximised the natural light that will be available to the indoor play areas, and submits that neither artificial lighting nor mechanical ventilation are unusual for childcare centres (relying on Acorp Developments Pty Ltd v Council of the City of Ryde [2022] NSWLEC 1028 at [66] and Basevski v City of Ryde Council [2022] NSWLEC 1387 at [82]). CSC points out that, consistent with the evidence of Mr Wood, the proposed development meets the requirements of the National Construction Code for light and ventilation, the Apartment Design Guide has no application to a child care centre, and there is no metric for solar access requirements in the CCPG.

The amenity is acceptable

82. Whilst the subterranean nature of the indoor play areas on the lower ground level is undesirable and is a subpar design for a child care centre, it is not a sufficient basis upon which to refuse the development application. I reach the conclusion that these play areas have sufficient solar access, natural light, and ventilation, for the following reasons.

83. Firstly, I accept CSC’s position that there is no numerical requirement concerning solar access for indoor play areas. The evidence of Mr Haskew is that, even at 21 June, the western and eastern indoor play areas each receive some solar access, albeit limited. The extent of solar access will then increase closer to the equinox, and may even provide solar access to the central indoor play area through the glazing between the rooms, depending on the translucency of that glazing. I accept the evidence of Mr Wood that the proposed development has optimised the solar access to those play areas by increasing the size of glazing (windows) on the west and east, adding glazing to the dividing wall between the rooms at 1.2m above the finished floor level, and increasing the size of each glass sliding door to the south so that they are 2.7m in height and span the full width of each play room.

84. Without there being a numeric requirement concerning solar access, it is not appropriate to impose one, and it is sufficient that some solar access is received by the western and eastern indoor play areas, and that the proposed development has sought to optimise solar access to all rooms by providing as much glazing as possible.

85. Secondly, the specified requirements concerning natural light and ventilation in Part 4.4 of the CCPG is for child care facilities to “comply with the light and ventilation and minimum ceiling height requirements of the National Construction Code”. The National Construction Code is described in the glossary to the CCPG as being “made up of the Building Code of Australia and the Plumbing Code of Australia”. As such, it is sufficient that the proposed development meets the BCA requirements concerning light, ventilation and minimum ceiling height. No contrary metric is provided in Part 4.4. The BCA light and ventilation letter dated 31 October 2023 (Ex C Tab 7) confirms that each of the playrooms meet the deemed-to-satisfy provisions in the BCA concerning natural light in Clause F4.2 and natural ventilation in Clauses F4.5 and F4.6. This means that adequate natural light and natural ventilation is achieved without having to rely on borrowed light, artificial lighting or mechanical ventilation.

86. Thirdly, there is no requirement in the CCPG for natural cross-ventilation in the indoor play areas, other than the recognition in Part 4.4 that this is a way in which good ventilation can be provided. Nevertheless, consistent with the evidence of Mr Wood, the operable doors and windows to the play areas are able to remain open (based on the acoustic report in Ex B Tab 2) and will provide natural ventilation to all three rooms, and the two rooms to the east and west will have cross-ventilation at their southern end. To the extent that the indoor play areas will need mechanical heating and ventilation (which is not required for BCA compliance), I accept the submission made on behalf of CSC that this is not uncommon for a childcare centre.

87. For those reasons, I consider that the indoor play areas on the lower ground level have adequate solar access, natural light and ventilation. In addition, the indoor play areas at the lower ground floor are supported by a connection to a large outdoor play area with no restriction on the length of time that the outdoor play area can be used (albeit there is a restriction on the total number of children that can use the area). The cantilevered upper ground floor provides shading of part of that outdoor play area. As such, the children and childcare workers will have ready access to natural outdoor elements through the connection of the indoor play areas to the outdoor play areas.

88. I therefore find that the amenity of the indoor play areas on the lower ground level is acceptable, and nothing in contentions (3)(h), (j) or (k), 5, 9(c) or 10(c) warrants refusal of the development application.

82. I should note that, in considering the development application, I need not be specifically satisfied that the requirements of reg 110 of the National Regulations are met. As I stated in Entrepreneur Enterprises Pty Ltd v Lane Cove Municipal Council [2023] NSWLEC 1323 at [16]:

“The National Regulations are enforced by the Regulatory Authority, who issues service approvals for education and care services, including centre based child care facilities. The National Regulations are not required by the EPA Act, the SEPP TI or any other planning instrument to be considered when assessing a development application for a centre based child care facility.”

90. However, Part 4.4 of the CCPG concerns design guidelines to achieve compliance with reg 110. In considering a development application in accordance with s 4.15 of the EPA Act, I am required to consider the CCPG and I need to be satisfied that the proposed development is capable of being used for the purpose sought in light of the applicable regulatory regime, including that it is capable of compliance with reg 110 of the National Regulations. Whilst I am so satisfied for the reasons set out above, my findings in that regard do not bind the Regulatory Authority.

The development application should be granted

91. For the reasons expressed above, none of the contentions raised by the Council warrant refusal of the development application. The proposed development is permissible on the site and is designed to accommodate the considerations required by the CCPG. It complies with the development standards in the PLEP, the applicable controls in the PDCP and achieves a streetscape presentation that is compatible with the character of the local area. Any impacts from the perceived bulk are consistent with what is anticipated by the zoning of the site and the controls in the PDCP, and are adequately mitigated by appropriate landscaping.

92. Further, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of residential uses, it is unlikely to be contaminated. In addition, based on the ESD Assessment Report dated 1 August 2023 and the evidence considered above, I have considered the matters in cl 7.4 of the PLEP and I am satisfied of the matters in cl 7.30 of the PLEP.

93. There is therefore no basis to refuse the development application and it is granted accordingly, subject to conditions of consent.

The appropriate conditions of consent

94. The parties agree that the operation of the development consent should be deferred to allow CSC to obtain an easement for drainage and overland flow over the property to the rear of the site, known as 45 Moira Crescent, St Marys. This is because, as set out above, the stormwater concept design in the Rev G drainage plans, which form part of the proposed development, relies on draining stormwater by gravity to Moira Crescent. It is appropriate for a condition requiring an easement to be a deferred commencement condition because without the easement, there would be no lawful way to dispose of the stormwater in the manner relied upon in the drainage plans for the site. Given that the design reflected in the drainage plans would be approved by the operation of the development consent for the site, it is not appropriate for the consent to be operative until it is lawful for the stormwater to be disposed in that manner.

95. The grant of development consent for this development application does not include the grant of consent for works to be carried out on 45 Moira Crescent. The parties agree that this would be the subject of a separate development application. The requirement to obtain development consent for works on 45 Moira Crescent is another condition that the Council seeks to impose as a deferred commencement condition. That condition, together with a range of other conditions that the Council seeks to impose as deferred commencement conditions, is as follows:

“b) The Applicant must obtain Development Consent for any drainage works to be carried out within the easement to drain water. Nothing in this development consent implies approval for the separate drainage works Development Application.

c) Amended architectural drawings are to be submitted to and approved by Penrith City Council that show the following:

i. Incorporate the sound barrier wall arrangements detailed in the ‘Environmental Noise Assessment: Proposed Child Care Centre – 246 Carpenter Street, St Marys, NSW’ prepared by Day Design Pty Ltd dated 8 August 2023 (Report No. 7750-1.1R).

ii. The sound barrier walls shown in Drawing A006, and Detail Section D-F of Drawing A011B in the architectural drawings are to be revised to align with the description of the sound barrier walls included in Section 10.2 of the Environmental Noise Assessment, as well as Appendix E1 and Appendix E2 of the Environmental Noise Assessment.

iii. Maintenance gates to be installed in the acoustic fence.

iv. Detail about the sealing of any maintenance gates to be installed in the acoustic fence.

v. The storage area for Room 3 be relocated so that they are adjacent to the northern wall of the play area.

vi. The introduction of virtual skylights in the rear of the rooms on the lower ground floor.

vii. Removal of the proposed signage on the northern elevation of the building, which is to be replaced with face brick.

viii. The location of the OSD tank.

d) Amended landscape plans are to be submitted to and approved by Penrith City Council showing:

i. Landscaped treatment to the front setback including landscaping around the vehicular driveway and central pedestrian pathway.

ii. Ochre coloured stencil concrete within the shared zone of the disabled accessible parking space.”

96. CSC’s position is that the above conditions ought not be deferred commencement conditions, but ought to be imposed on the operational consent such that the amended architectural and landscaping plans are to be provided prior to a construction certificate, and development consent for the works on the adjoining site is to be obtained prior to the occupation certificate.

97. I accept CSC’s position that none of the matters quoted above at [95] need to be satisfied prior to the operation of the consent. In relation to the amended architectural and landscaping plans, they relate to matters of detail that need not be provided and approved prior to the operation of the consent, but can be provided and approved prior to the issue of a construction certificate.

98. In relation to the requirement for development consent for the works on 45 Moira Crescent, I similarly consider that this need not be obtained prior to an operational consent, as the precise works on the adjacent property need not be approved prior to the operation of a consent for the proposed development (which includes consent for the drainage plans). However, I do not accept the position of CSC that this can be pushed as far back as prior to the occupation certificate. By the time that a developer seeks an occupation certificate, the built form would be complete and the stormwater would be draining through the approved and constructed system. Therefore, development consent for the drainage works on 45 Moira Crescent ought to be obtained prior to a construction certificate for the works on the site.

99. The conditions in Annexure A to the orders below reflect these findings. There is no other dispute with respect to the conditions of consent, and the remaining conditions are agreed between the parties.

The final orders

100. The Court orders that:

1. The appeal is upheld.

2. The development application (DA22/0926) for the demolition of existing structures and the construction of a 58 place child care centre with parking for 14 vehicles and ancillary works, at 246 Carpenter Street, St Marys, is determined by the grant of consent subject to the conditions in Annexure A.

3. Exhibits 1, 2, 5, 6, 8, 9 and 13 are returned and the remaining exhibits are retained.

J Gray

Commissioner of the Court

**********

Decision last updated: 16 January 2024