Childcare Property Holdings Pty Ltd (ACN 106 784 132) as trustee for the Childcare Property Holdings Trust v Parramatta City Council

[2019] NSWLEC 1473

Land and Environment Court

New South Wales

Medium Neutral Citation:	Childcare Property Holdings Pty Ltd (ACN 106 784 132) as trustee for the Childcare Property Holdings Trust v Parramatta City Council [2019] NSWLEC 1473
Hearing dates:	25, 26, 27 June and 30 July 2019; Written Submissions on 16 August 2019; 2 September 2019; 12 September 2019
Date of orders:	04 October 2019
Decision date:	04 October 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1) The appeal is dismissed. (2) The exhibits are returned except for Exhibits 1, 5, 13, A, B, C, H.
Catchwords:	DEVELOPMENT APPLICATION – centre-based childcare centre – design responsiveness to topography – impacts of privacy mitigation treatments – residential amenity – streetscape character
Legislation Cited:	Education and Care Services National Regulations Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2011 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
Cases Cited:	Barrak v City of Parramatta Council [2018] NSWLEC 67 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80 Wenli Wang v North Sydney Council [2018] NSWLEC 122
Texts Cited:	Association of Australian Acoustic Consultants Guideline for Child Care Centre Acoustic Assessment (2013) Child Care Planning Guideline (2017) Parramatta Development Control Plan 2011
Category:	Principal judgment
Parties:	Childcare Property Holdings Pty Ltd (ACN 106 784 132) as trustee for the Childcare Property Holdings Trust (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) S Nash (Respondent)   Solicitors: Swaab (Applicant) City of Parramatta Council (Respondent)
File Number(s):	2018/244040
Publication restriction:	No

Judgment

Introduction

1. This is a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the refusal of Development Application No. D/2017/631 by Parramatta Local Planning Panel. The development application (‘DA’) sought consent for a child care centre with basement car parking at 45 Mobbs Lane, Carlingford (‘site’). The site is legally described as Lot 14 in DP 30791.

Site and setting

2. I rely on the Amended Statement of Facts and Contentions (Ex 1) for much of the material in this section of the judgment.

3. The site fronts the northern side of Mobbs Lane and comprises a regular shaped allotment with a frontage of 20.1m and side boundaries of 46.3m. The site area is 932m². There is a significant west to east cross fall evident, indicated as about 11% across the front boundary and 8% across the rear boundary.

4. Currently, the site is occupied by a single and two storey dwelling house, in-ground swimming pool and outbuildings. There are a number of mature trees within both rear and front yards.

5. Detached residences are located immediately east and west of the site, with a generally low rise medium density development to the immediate rear. Fred Spurway Reserve is located immediately across Mobbs Lane to the south. The further particulars of development in the Mobbs Lane environs are a matter of evidence and are considered below.

The proposal

6. The proposal before the Court can be summarised as follows:

• Demolition of all existing structures, earthworks and (selected) tree removal.

• Construction of a two storey building with basement car parking comprising:

1. Basement containing eighteen car spaces including one adaptable space, eight staff spaces, ten visitor drop off spaces, four bicycle spaces, garbage room, fire stairs and lift with vehicular access from Mobbs Lane.

2. Ground floor level comprising two pedestrian access paths from Mobbs Lane, two bicycle spaces within the front yard, reception, foyer with adjoining office, bathrooms, laundry, lift core and stairs, two playrooms, cot and nappy changing rooms, under cover outdoor play area with storeroom and outdoor turf play area.

3. First floor comprising kitchen, staff room, lift core, fire stars and staff bathroom, two play rooms, large outdoor play area and children's vegetable garden bed.

• The original application sought consent for 74 children of the following age-based composition: 0-2 years – 24 children; 2-3 years – 30 children; 3-5 years – 20 children. In closing submissions, the Applicant offered to accept a limit of 68 children (Applicant’s Closing Submission (‘ACS’) filed 16 August 2019, p7).

• Hours of operation would be 7am to 7pm Mondays to Fridays.

Statutory framework

7. The site is located within a R2 Low Density zone under Parramatta Local Environmental Plan 2011 (‘LEP’). The proposal is “permitted with consent” in this zone as a “centre-based child care facility”. Adjoining land to the east, west and north is also in the R2 zone. Fred Spurway Reserve, across Mobbs Lane is zoned RE1 Public Recreation.

8. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (‘SEPP’) applies. The SEPP triggers attention to the Child Care Planning Guideline 2017 (‘Guideline’) via cl 23, and the Education and Care Services National Regulations (‘Regulations’) via cl 25 which includes certain non-discretionary development standards. Without certain provisions of the SEPP there could be overlap between provisions of the Guideline (or regulatory requirements) and Parramatta Development Control Plan 2011 (‘DCP’). The SEPP includes provisions on how this potential is to be addressed. Clause 26 is relevant in that regard:

26 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 clause applies regardless of when the development control plan was made.

9. Further particulars on planning provisions are introduced in the consideration of issues before the hearing.

Site view and lay submissions

10. The hearing commenced with a site view. Submissions from the three immediate neighbours were heard, each objecting to the proposal. The opportunity was taken to visit the residences of each of these objectors to gain an improved appreciation of the submissions.

11. The objectors raised concern about: amenity impact (visual impact of building massing (“three storeys” to the east due to site cross-fall), visual and acoustic privacy, loss of sunlight, loss of quiet enjoyment), parking and road safety especially for children, excessive number of children and tree removal. These concerns were each drawn into expert evidence.

Issues

12. There were some nineteen headline items listed in Council’s Amended Statement of Facts and Contentions (Ex 1). For this judgement, these items and the matters raised in lay submissions, can be grouped into three, sometimes related, issues as follows:

• Local amenity impacts (I include local streetscape implications here)

• Proposed arrangements for children in care

• Traffic and parking.

13. The experts providing evidence in regard to the issues are nominated below.

Expert	Expertise	Evidence for
J Wood	Planning	Applicant
S Moodliar	Planning	Respondent
S Gauld	Acoustics	Applicant
R Heydon	Acoustics	Respondent
O Sannikov	Traffic	Applicant
B Saleh	Traffic	Respondent
L Campbell	Child care	Applicant

Local amenity impacts

Overview of concerns

14. The overview concerns of Council in regard to this issue can be thought of as:

1. Visual bulk – Here the concern was framed by two considerations: (1) what was seen as an unresponsiveness to the site’s sloping topography (Council supported a stepped building across the site) and (2) non-compliance with side and rear setback controls. According to Council, there were consequent impacts in regard to visual bulk in the streetscape (with the basement considerably above ground level on the eastern side) and for neighbours viewing the building from their private open space (with side and rear setbacks and edge landscaping or lack thereof pertinent here).

2. Visual and acoustic privacy – Here the major concern was the outdoor play areas (which would be in quite regular use), including their elevated nature. There were procedural considerations arising with regard to applicable acoustic criteria which are explained below.

15. In the course of the hearing the Applicant introduced plans (Ex H, Tab 4) to address these concerns. The Applicant (through its planning expert Mr Wood, and in part in response to acoustic screening requirements established by acoustic experts jointly) proposed additional visual and acoustic privacy screening. Ultimately, the proposal before the Court for consideration in the hearing included: 1.7m privacy screens on the upper balcony on the inside of a 1.39m high acoustic balustrade, with a landscape hedge in between. The visual screening would be by a horizontal slatted structure with 33% openness (100mm slat with 50mm openings). A similar arrangement was proposed on the (elevated) eastern side of the ground level outdoor play area. In addition there would be boundary acoustic screening (by lapped and capped barrier fencing and in part with “splayed frosted perspex” at the top) on north and west sides of height in the rear of 2.8m and 2.4m respectively. For the eastern boundary a 2.5m screen (entirely “perspex”) was proposed, offset 0.7m from the boundary and with a hedge garden in between (accessible from under the acoustic screen due to its design). Some splaying of the fences at the top was proposed. Shadow diagrams were provided which according to Mr Wood demonstrated that, notwithstanding the fencing, the property to the west would receive compliant solar access (Ex H Tab 4, drawing references: DA9, DA10 & DA11 Revision E). With regard to these amendments, it was indicated it was impractical to “step” the building due to operational and access requirements as a child care centre, and there were no significant changes proposed in regard to the building boundary setbacks.

16. Mr Moodliar’s view was that these efforts to mitigate brought their own additional impacts in terms of visual bulk; and that in regard to visual privacy and overlooking there were still concerns about the adults supervising the children. The Council felt that in terms of visual privacy solid screens (1.8m high) were required for the upper outdoor play area and for the ground floor on eastern and northern boundaries.

Particulars - setbacks

17. It can be noted here by way of introduction that the experts agreed that the proposal meets the LEP’s height controls, and that the proposal as originally submitted would meet the LEP’s floor space ratio (FSR) controls. However, privacy mitigation treatments recommended in evidence (see above) raised questions about FSR compliance. This was in regard to the LEP’s definition of “gross floor area” which provides for the exclusion of terraces and balconies from gross floor area, and thus FSR calculations, when “outer walls (are) less than 1.4m high” (see the Dictionary to the LEP). As outlined above, visual privacy mitigation treatments involved outdoor play space edge treatment above that height. This will be further considered later.

18. Council placed considerable weight on the setback controls in the DCP, noting that under cl 26(1)(d)(ii) of the SEPP, DCP setback controls did apply – see [8].

19. The first relevant DCP control is in regard to “preliminary building envelopes” and “generally” requires 30% of the site length for the rear setback – which in this case would calculate at 13.9m (DCP cll 3.1.3 and 5.2.3.2). The plans show rear setbacks of:

1. 10.09m for the upper level “outdoor play area”;

2. 10.84m to the “under cover outdoor play area” at the ground level and;

3. 6.59m to the basement.

20. Mr Wood observed that Council’s building envelope controls specifically exclude balconies (which the elevated outdoor play areas might be considered), and made no provisions in regard to basements.

21. The DCP establishes a specific side setback control of 2m for new child care centres, departing from the side setback controls for dwelling houses (DCP cl 5.2.3.2). The building side setback is 1.5m to 1.715m to the east; and to the west 1.3m to the lower level and generally 1.5m to the building façade to the upper level. The basement parking structure is offset some 0.2m to the western boundary. I note here Mr Staunton pointed to the Guideline’s provisions on setbacks (Guideline, control C14):

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

Mr Staunton noted that the DCP controls continue to apply but “they are still subject to the mandatory flexibility provisions in s 4.15(3A) of the (EPA Act)”.

Particulars - acoustics

22. Mr Nash noted in his opening, that the Council had framed its acoustic contentions by referencing DCP controls. He acknowledged that as the Guideline brought its own controls in regard to acoustic considerations (at control C24), the effect of cl 26(1)(a)(ii) of the SEPP was that the DCP acoustic provisions did not apply (Mr Nash also conceded that the development would have met the acoustic requirements of the DCP with boundary fences at a height of 2m).

23. The objective of Item C24 in the Guideline is “(to) minimise the impact of child care facilities on the acoustic privacy of neighbouring residential developments.” The following provisions then apply:

“A suitably qualified acoustic professional should prepare an acoustic report which will cover the following matters:

• identify an appropriate noise level for a child care facility located in residential and other zones

• determine an appropriate background noise level for outdoor play areas during times they are proposed to be in use

• determine the appropriate height of any acoustic fence to enable the noise criteria to be met.”

24. Acoustic experts agreed that it was appropriate to use the Association of Australian Acoustic Consultants Guideline for Child Care Centre Acoustic Assessment (2013) (‘AAAC Guideline’) for identification of “an appropriate noise level”. After the Court directed further analysis and joint conferencing, the experts agreed on a configuration of acoustic barriers at property boundaries as a means of mitigation of outdoor play which would achieve compliance with the AAAC Guideline, and these are as outlined at [15] above (Ex 8 at [2.28]-[2.32], and oral evidence).

25. Mr Nash made submissions that there was a pre-conditional obligation on the part of an applicant (ie prior to adopting mitigative acoustic treatment like fencing) to demonstrate that the proposed centre has been “optimally designed” (Respondents Outline of Submissions, dated 2 September 2019 (‘ROS’)). Certain criteria had been established in the DCP (with propositions in regard to U-shaped or L-shaped design to restrict noise passage from child care centres across property boundaries). In the joint acoustic report Mr Haydon also linked this concern with the design principles established in the Guideline. According to Mr Nash, as it fails in regard to “optimal design”, the application fails in regard to acoustic treatment. I will consider this submission in the evaluation below.

Evaluation

Framing considerations provided by SEPP and LEP

26. The SEPP aims to “facilitate the effective delivery of educational establishments and early education and care facilities across the State”, specifying eight means by which this is to be achieved. The first three are most relevant here:

(a) improving regulatory certainty and efficiency through a consistent planning regime for educational establishments and early education and care facilities, and

(b) simplifying and standardising planning approval pathways for educational establishments and early education and care facilities (including identifying certain development of minimal environmental impact as exempt development), and

(c) establishing consistent State-wide assessment requirements and design considerations for educational establishments and early education and care facilities to improve the quality of infrastructure delivered and to minimise impacts on surrounding areas.

27. The Guideline lists four “planning objectives” as follows:

“• promote high quality planning and design of child care facilities in accordance with the physical requirements of the National Regulations

• ensure that child care facilities are compatible with the existing streetscape, context and neighbouring land uses

• minimise any adverse impacts of development on adjoining properties and the neighbourhood, including the natural and built environment

• deliver greater certainty to applicants, operators and the community by embedding the physical requirements for service approval into the planning requirements for child care facilities.”

28. There seem to be two distinct themes behind both the SEPP’s aims and the Guideline’s planning objectives. One is a concern about certainty, efficiency, simplification and standardisation of planning and approval aspects. The focus here is better process. A second is more qualitative and has two aspects: (1) a concern relating to “the quality” of the child care infrastructure delivered, and (2) a concern to “minimise impacts on surrounding areas”.

29. The SEPP (cll 23 and 26) directs me to the Guidelines, requiring me to take into account any applicable provisions, with these provisions over-riding related provisions in the DCP, with the exception of DCP provisions concerned with “building height, side and rear setbacks or car parking rates” (see [8]).

30. When I turn to the LEP, I note its “particular aims”, while of course very broad, might be considered as both encouraging of development like child care centres and enhancing residential amenity (eg the aims nominated at cll (2)(a) and (2)(g)).

31. The LEP’s nominated objectives for the R2 Low Density Residential zone are more relevant to this evaluation, in my view, given the spatial differentiation of land use control embodied in the LEP zones. The R2 zone objectives 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 ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment.

• To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.

32. The planning experts disagreed on whether the proposal had adequate regard to the zone objectives or was contrary to them. Mr Wood emphasised the proposal as directly satisfying the second zone objective (I note that it might similarly be seen as in alignment with the fourth objective). Mr Moodliar focused on the third nominated objective and believed the proposal did other than minimise impacts on surrounding amenity.

33. When considering what I would see as the three “active” zone objectives, as far as this proposal is concerned, it seems to me the second and fourth objectives have different kinds of intention, or tenor, to the third objective. The second and fourth zone objectives explain the intention to open up this low density residential zone to uses other than (low density) residential development. On the other hand, the third objective is concerned with placing cautions or qualifications on how such development might occur, its concern is with ensuring that development like child care centres are “located in a context and setting that minimises impacts on the amenity of a low density residential environment”. For me, “enabling” and “allowing” (in accordance with the second and fourth objectives) has already occurred with the permissibility of non-residential uses like child care centres in the zone. These two objectives do very little, in my reading, to offset the concerns of the third objective.

32. My interpretation is that the relevant aims of the SEPP are more aligned to the tenor of the second and fourth objectives of the R2 zone. That is, largely, it is through the provisions of the SEPP that its aims are achieved. I do not have a sense that the SEPP is further encouraging me to “facilitate” the development of child care centres beyond the particular statutory provisions and Guideline/regulatory provisions already codified.

33. There is no requirement for a development to comply with zone objectives, but under cl 2.3(2) I must have regard to these objectives in the assessment underway here. If the third objective is to have work to do, the point of “ensuring” non-residential uses like, centre-based child care centres are located with certain attention to minimisation of impacts on the amenity of a low density residential area, seems to warrant some “regard”.

DCP and Guidelines

36. Council’s evidence gave some weight to what were seen as “design weaknesses” of the proposal. I cannot rely on the DCP’s design principles relating to “building siting and design” at Part 5, as a consequence of cl 26 of the SEPP (see [8]). Similarly, I also agree with the Applicant’s Closing Submission in Reply, filed 12 September 2019 (‘ACSR’) that there is no “mandatory obligation” on the applicant to have “optimal design” before acoustic fencing can be used.

37. However, there is considerable attention to design in the Guideline including in its “design quality principles” (Part 2 of the Guideline). Of special pertinence to local amenity and streetscape character consideration are the Guideline’s principles relating to:

1. “context” (Principle 1) which draws attention to relationships, and qualities and identity of the area, “including adjacent sites, streetscapes and neighbourhood”.

2. “built form” (Principle 2) which suggests “(good) design achieves a scale, bulk and height appropriate to the existing or desired future character of the surrounding area.”

3. “landscape” (Principle 5) encouraging attention to the landscape character of the neighbourhood and outdoor learning relationships with landscaping, and;

4. “amenity” (Principle 6) which suggests “(good) design positively influences internal and external amenity for children, staff and neighbours.”

38. Part 3 of the Guideline then introduces particular “matters for considerations”:

“The matters support the design principles and must be considered by the consent authority when assessing a DA for a child care facility. Child care facilities can be developed in a broad range of locations and need to be flexible in how they respond to the requirements and challenges this brings.”

39. I relate these considerations to the proposal, mindful of the evidence of the experts, below.

Evaluation

Summary opinion of experts

40. Mr Moodliar says that the proposed building is too large for the locality and not compatible in the streetscape setting, which brings visual impact. It would be viewed as a three storey building from the street and from the property to the east, particularly because of the lack of design response to the site’s natural cross fall. Contributing here, according to Mr Moodliar, is the inappropriate length of the building, partly evidenced by non-compliance with the rear setback. The enclosure of the large outdoor play areas (required for visual privacy reasons) adds to the visual bulk, notwithstanding proposed landscaping, and would ultimately generate a breach of FSR controls. The 33% open screening to outdoor play areas, as proposed, would still allow overlooking into neighbouring properties by grownups) The boundary fencing treatments (required for acoustic privacy reasons) bring their own impacts due to their height and design.

41. Mr Wood emphasised that the proposal complies with height and FSR standards and is a contemporary form which is compatible with the setting, and consistent with the emerging character (recognising the two dual occupancy developments to the west along Mobbs Lane), seen as important as the locality is in a state of transition. In terms of the west-east cross fall, while the proposal design does not provide for stepping across the site, according to Mr Wood, in a practical sense there are no unreasonable visual or acoustic privacy impacts on the neighbours due to screening, and landscaping helps soften the screening. On the rear setback issue, Mr Wood notes that basements are not mentioned in the DCP. He also notes the DCP’s exclusion of balconies from the building envelope controls might suggest any compliance should be (strictly) tested against the “enclosing wall of the rear ground floor… which adopts a setback of 17.5m”. The first floor enclosing wall is setback further. But, reasonably, turning to the merits of the balconies rear setbacks (Ex 5 at [92]), Mr Wood evidenced his support for the proposal, based on: no unreasonable privacy (mindful of screening and distance mitigation), no overshadowing impacts, no unreasonable visual massing (given the encroaching forms are “open balcony elements”, and are in that sense, visually different to the “main building massing” which is well setback) and suitable landscaping including the retention of two trees in the rear yard and area for “additional landscaping”.

Conclusions – Local amenity impacts

42. I agree with Mr Moodliar’s evidence that the building is considerably out of scale with its neighbours and the immediate setting and would be visually imposing. I also agree with Mr Wood that the proposal is of contemporary design. It is not necessary for child care centres to look like other buildings in this low density residential setting. But the planning controls bring some matters for consideration on building envelope and design which are pertinent and considered below.

43. I note Mr Wood’s emphasis upon the dual occupancy development along Mobbs Lane to the west (one four blocks or about 80m along, another somewhat further to the west again). The suggestion is that this represents the changing character of the locality. There are references to desired future character in the Guideline, and I do consider it, and note the findings of Project Venture Developments v Pittwater Council (2005) 141 LGERA 80 at [23], which points to the appropriateness of considering future character for areas where change is envisaged. But I am not convinced there is evidence that change will occur to the extent that might be suggested by Mr Wood (ie to result in development similar to the referenced dual occupancies becoming characteristic). The Guideline does give considerable attention to existing character. On that front, the two dual occupancy developments are some distance from the site and (for lack of much in the way of other examples in-between) there is a sense that these building’s lose their persuasive power with that distance.

44. Among others, the following Guideline provisions need to be considered. The objective (C5 at p11):

“…to ensure that the child care facility is compatible with the local character and surrounding streetscape”;

and related “considerations” that: the proposed development “should”;

“…contribute to the local area by being designed in character with the locality and existing streetscape …reflect the predominant form of surrounding land uses, particularly in low density residential areas … recognise predominant streetscape qualities, such as building form, scale, materials and colours.”

45. When considering streetscape impact, and mindful of the LEP’s R2 zone objectives, the considerations in the Guidelines, and the expert evidence, I consider the proposal’s street presentation as a negative aspect of the proposal. This is due to its non-compliance generally with the provisions outlined at [44] above. The building is clearly not “in character” with the setting. I see this aspect (streetscape impact) as contributory to the determination rather than determinative of itself. This is mainly because in my view the front façade presentation would provide visual interest in the street and there is at least some softening landscaping shown with some availability of deep soil in the front setback. I also give more weight to the building’s compliance with the LEP in regard to height here than I do with the considerations I turn to now.

46. I turn to the visual impact as experienced by the neighbour to the east, whose property sits below the site as the land slopes away. I note the limits to the length of the higher building massing on the eastern side. That is the building is two levels above the significantly above-ground basement, for a lesser length. I also note Mr Wood’s expert advice that the building’s length (in visual massing terms) is satisfactory due to the fact that much of the length is balcony with landscape treatments. While the landscaping and 33% opening would provide relief, these are, of course, large open outdoor play areas (210m² on the upper level, 99.4m² ground level), rather than what might be reasonably thought of as balconies. I note the LEP (as well as Standard Instrument) Dictionary assignment of “balconies with outer walls less than 1.4m high” as not to be factored into FSR. Even accepting Mr Wood’s evidence that these areas do not constitute gross floor area, I take something of a “rule of thumb” from the 1.4m height line suggested in the LEP definition, that is in regard to perceived massing of edge treatment of balconies or like development. I am comfortable accepting the evidence of Mr Moodliar that, notwithstanding the openings and landscaping of edges as moderating effects, these large outdoor spaces with 1.7m high vertical bounding elements (or 1.8m high in part were Mr Moodliar’s privacy evidence be accepted) would present as part of an imposing visual mass. There is a similar although lesser issue with the massing of the development when viewed from the west.

47. I agree with Mr Moodliar that the DCP’s rear setback control is pertinent on this issue. That is, if the rear of the building (including outdoor play areas) were setback a further 4m or so (to conform with the 30% of the site length as the DCP would suggest, and as adopted by the dual occupancy development at 37 Mobbs Lane – see Ex F), then the visual impact would be lessened.

48. It is insufficient to rely on compliance with height controls in the LEP when considering the suitability of a proposal in regard to visual massing. In closing submissions there was a disagreement between the parties in regard to the pertinent case law in regard to this question. Mr Staunton referred to Wenli Wang v North Sydney Council [2018] NSWLEC 122 (Wenli Wang), where he particularly referred to [38]-[39]. Mr Nash preferred Barrak v City of Parramatta Council [2018] NSWLEC 67. Even if I rely on Wenli Wang, the more pertinent provisions are in the section entitled “Conclusions on view loss”, including at [64], where Robson J concludes:

“The fact that the development standards in the LEP are met means that the DA has passed through the jurisdictional gate to the merits assessment process in s 4.15 of the EPA Act. The maxima provided for in the development standards are not rights to develop to those levels, but I do take note of the fact that the majority of the proposed development is comfortably within the building height and envelope provided for in the LEP.”

49. When assessing merits, a compliant building, as this one certainly is, still needs to show appropriate sensitivity, having regard to both its own particulars and the characteristics of adjoining land. In this case, while there has been considerable effort made to soften the development’s effects, the length of the massing along the east-west boundaries is excessive, and as discussed below brings overlooking potential. There are limited opportunities to soften this visual effect with landscaping due to other site demands, and there is a more acute impact relationship evident (with neighbours), than for example is the case with the streetscape consideration (above).

50. Turning to visual privacy itself, I accept that there would be screening effects from the 33% open slatted screens. It remains the fact that there would more often than usual in low density residential settings be three adults on elevated outdoor areas with views across into neighbouring private open space. I do not fully accept Mr Wood’s point that as these adults would be supervising children, the overlooking effect is negated. I do see a positive here in that there would be no occupation of the balconies during weekends, but nonetheless visual privacy in my interpretation is not fully resolved, and remains a negative aspect of the proposal.

51. In regard to boundary fencing I generally accept that acoustic concerns are addressed by this fencing. I prefer Mr Wood’s evidence over that of Mr Moodliar in regard to the visual privacy benefits of the northern fencing. However, I again agree with Mr Moodliar that the fencing itself must be seen as a further negative aspect of the proposal in a visual sense due to its (significantly out of context) height. Fences of these heights would provide a different sense of enclosure, which could be reasonably thought of as jarring and negative, most particularly to the north, where there is also an awkward fencing treatment configuration (part flat part angled perspex) as viewed from the neighbouring outdoor deck. This sightline is in part softened by the existing trees on the subject site. I note again, in accordance with Mr Moodliar (Ex 5 at [27]), that there is little scope for further landscaping which might over time background the proposed fencing.

52. The evaluation of the consequences of these neighbour impacts (visual massing/enclosure and visual privacy) must include consideration of the Guideline, including:

1. An objective to: “…minimise impacts on privacy of adjoining properties”; and related considerations to: “…minimise direct overlooking of main internal living areas and private open spaces in adjoining developments through: appropriate site and building layout, suitable location of pathways, windows and doors, landscape design and screening”.

2. An objective to: “…ensure that the scale of the child care facility is compatible with adjoining development and the impact on adjoining buildings is minimised” ; and related considerations that the proposed development’s: “… setbacks should allow for adequate privacy for neighbours and children at the proposed child care facility”.

3. An objective to: “…ensure that setbacks from the boundary of a child care facility are consistent with the predominant development within the immediate context”; and related considerations that the proposed development’s: “…side and rear boundary setbacks should observe the prevailing setbacks required for a dwelling house”.

53. There is also a need to consider the DCP in regard to setbacks. I note the reference to setbacks in the Guideline, as per the SEPP provisions, the DCP setback controls do apply despite this reference, as noted by Mr Staunton (‘ACS’ at [58]), although “still subject to the mandatory flexibility provisions in s 4.15(3A) of the (EPA Act)”.

54. Firstly, I need to say that I accept Mr Moodliar’s evidence, that due to size and height, the outdoor play areas as proposed, are not covered by the rear setback exclusions applying to “balconies” (DCP cl 3.1).

55. I will consider s 4.15(3A) of the EPA Act now. The core provision of relevance here is s 4.15(3A)(b) which, in instances where a development does not comply with a DCP provision, requires a consent authority “to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development”.

56. The rear setback control is a component of what is termed in the DCP “preliminary building envelope” provisions. The structure of the DCP establishes this preliminary envelope control, which would then be moderated in accord with other “principles for development” later in the DCP. That is to say, objectives and merits tests arise later in the document in regard to DCP items concerned with building form and massing (cl 3.2.1) or visual privacy (cl 3.3.3) (and which due to SEPP provisions generally do not apply of themselves). But for the purposes of s 4.15(3A)(b) of the EPA Act, I note the relevant objectives are similar to the Guideline provisions in being sensitive to the amenity of nearby properties.

57. When turning to the non-compliant side setback provisions (DCP cl 5.2.3.2) I note the objects are concerned with “(limiting) the impact of child care centres on the amenity of residential areas” and (“ensuring”) that child care centres do not undermine or compromise the amenity of residential areas. I accept Mr Moodliar’s evidence that the required 2m setback (different from say the 1.5m setback applying to dual occupancies) was a response to the intensity of development.

58. With this proposal, in my view, there are significant additional residential impacts as a consequence of non-compliance with the setback controls. I agree with Mr Moodliar that there are very limited opportunities for landscaping to moderate this impact. In this instance the objects of the setback standards are not achieved.

59. Mindful of the aims of the SEPP at [26], LEP’s R2 zone objectives at [31], the Guidelines, DCP and the consideration of the evidence (including the proposals compliance with LEP height and FSR standards), I find the proposal as imposing a considerable and unreasonable negative impact on the amenity of neighbours, to the extent that it is determinative.

Childcare provisioning and design

60. After the Applicant’s offer to accept a limit of 68 children (‘ACS’) (filed 16 August 2019, p7), Mr Nash indicated that Council was satisfied in regard the provisioning for unencumbered indoor and outdoor space. Other contentions relating to amenities and staff numbers were also resolved between the experts. I can advise that I am satisfied in regard to the matters associated with ventilation, essentially based on the explanation provided by the acoustic experts. I was also satisfied in regard to emergency evacuation with the evidence of Ms Campbell.

61. The remaining concern was in regard to the adequacy of landscaping and deep soil. I generally accept Mr Moodliar’s evidence that significant perimeter landscaping (on-site) would provide a benefit to both the children in care (especially given the height of proposed boundary fencing) and the adjoining properties. The lack of such landscaping, generally, along site boundaries, is a significant negative aspect of the proposal, but which would not necessarily be determinative of itself.

Traffic parking and safety

62. The reduction in numbers to 68 children narrowed this contention. But it remained the case that to comply with the relevant and applicable (DCP) parking controls, according to Council, there would be a requirement for one car stacker within the basement. Council did not support the provision of a car stacker as it felt it would expose children to risk. In the Council’s closing submission, it was suggested that the contention would be fully resolved if the Applicant amends its proposal (or the Court imposes a condition on the grant of any development consent) to reduce and limit the child care centre to 64 children. This figure aligned with the calculations of Mr Salah (Council’s traffic expert (Ex 4 at [45]). In the Applicant’s closing submission in reply, while it was not agreed that such a step was needed on the merits, it was agreed that there was power for the Court to impose such a condition. As that power is available to me, I do not see the parking issue as determinative in this matter.

Conclusions

63. The Court’s finding, on the evidence, is that this proposal is not suitable for this site as it would have a significant impact on local amenity. As outlined above, this is at odds with a pertinent aim of the SEPP and objective of the applicable R2 Low Density zone within the LEP, both concerned with minimising such impacts. When I turn to the Guidelines I find a need to consider provisions with similar ambitions in regard to, in a sense, child care centres “fitting in” to local settings. The proposal is also non-compliant with DCP setback controls and I have found that there is no relief for the proposal when s 4.15(3A)(b) of the EPA Act is considered.

63. It is also the case that the provision of a child care centre in this location would provide a service to local and nearby residents. The provision of such services can have a positive impact in the local area. But in this case, and mindful of the pertinent planning provisions, it is clear that the local impacts have persuasive weight.

Orders

65. Accordingly, the Court orders that:

1. The appeal is dismissed.

2. The exhibits are returned except for Exhibits 1, 5, 13, A, B, C and H.

……………………………

P Walsh

Commissioner of the Court.

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Decision last updated: 04 October 2019