Clovelly Montessori Academy Pty Ltd v Randwick City Council

[2020] NSWLEC 1051

Land and Environment Court

New South Wales

Medium Neutral Citation:	Clovelly Montessori Academy Pty Ltd v Randwick City Council [2020] NSWLEC 1051
Hearing dates:	3-5 July 2019; 2 and 8 October 2019; 5 December 2019; Agreed conditions filed 9 January 2020
Date of orders:	06 February 2020
Decision date:	06 February 2020
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The orders of the Court are: (1)   Leave is granted to the applicant to rely upon amended plans. (2) The applicant is to pay the costs of the respondent thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (3)   The clause 4.6 request to exceed the height standard is not upheld. (4)   The appeal is dismissed. (5)   Development application DA/537/2017 for a child care centre at 45-51 Burnie Street, Clovelly is refused. (6)   The exhibits are returned except Exhibits A, U and 1.
Catchwords:	DEVELOPMENT APPLICATION – Child care centre – overdevelopment – height non-compliance – whether FSR compliant – clause 4.6 – setbacks – amenity for neighbours – compatibility with local character – impact of flooding – design of play areas – resident objections – public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 Education and Care Services National Regulation
Cases Cited:	Abrams v Council of the City of Sydney [2019] NSWLEC 1583 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelHM Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Child Care Planning Guideline, NSW Department of Planning (2017) Randwick Comprehensive Development Control Plan 2013
Category:	Principal judgment
Parties:	Clovelly Montessori Academy Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: J Palmer (Solicitor) (Applicant) K Gerathy (Solicitor) (Respondent)   Solicitors: Pikes & Verekers Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/144367
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal was lodged under s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Randwick City Council (the Council) of development application DA/537/2017 (the application). The application is for a proposed centre-based child care facility (the child care centre) at 45-51 Burnie Street, Clovelly (the site).

2. The application was lodged in August 2017. As lodged, the application proposed remediation of the site and the construction of a 2 level child care centre over basement parking with associated works and play areas for 80 children and 16 staff. A dwelling was proposed on the second storey. A total of 17 car parking spaces were proposed within the basement car park which also contained motor cycle and bicycle parking, storage and mechanical plant.

3. The application was subsequently amended to delete the dwelling and increase the number of onsite parking spaces to 18 and to reconfigure the child care centre layout.

4. The proposed age of the children comprises 20 infants (aged 0-2), 30 toddlers (aged 2-3) and 30 children aged 4-6.

5. The centre is to operate from 7.30am to 6pm Monday to Friday for 51 weeks of the year. Limited use outside these hours is proposed for associated activities as specified in a Plan of Management (PoM) which was submitted with the application and amended in response to amendments to it.

Planning context

6. The site is vacant and comprises 2 lots with a combined area of 1052m². It is generally regular in shape with a 26.2m frontage and a depth ranging from 45.9m to 52.2m. It is opposite the intersection of Clovelly Road and Burnie Street on the northern of Burnie Street.

7. Adjoining long term residents advised that, prior to 1965, the site contained residential development which was demolished in 1965 following acquisition of the site by Sydney Water. The site has been vacant ever since.

8. Prior to Sydney Water’s subsequent sale of the property to the applicant, remediation works were undertaken to address the requirements of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) given there was asbestos and other contamination identified through a Stage 1 site assessment study. This contamination work has resulted in the site being excavated and having a new landform.

9. Mr Palmer, solicitor for the applicant, advised that the applicant agreed to undertake required further site work recommended in the assessment study. In this regard, a remaining area of fill is to be removed and validated as required during the planned bulk earthworks for the site.

10. The contamination report was prepared for Sydney Water. However, the land use suitability from a contamination perspective was reported as acceptable in that report and the extent of work necessary to ensure site suitability for the purposes of SEPP 55 is to be conditioned to the Council’s satisfaction.

11. The site is adjoined to the east by a single storey semi-detached dwelling at 53 Burnie Street and to the west by a mixed use building at 43 Burnie Street containing retail at ground floor level and a residence above extending to the rear. The site is adjoined to the north (rear) by three dwellings being 1, 3 and 5 Allan Avenue.

12. The locality is predominantly residential although the immediately adjoining mixed use development to the west is part of a group of older shops. Residential development is otherwise predominantly 1-2 storeys although there are residential flat buildings (RFBs) in the street and in the area.

13. The site is zoned R2 Low Density Residential under the provisions of the Randwick Local Environmental Plan 2012 (the LEP). A child care centre is permissible in the zone.

14. The LEP contains the following objectives for development in the R2 zone:

•  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 recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

•  To protect the amenity of residents.

•  To encourage housing affordability.

•  To enable small-scale business uses in existing commercial buildings.

15. The LEP also contains a number of provisions of relevance to the application and referenced in the proceedings. These include: the height provisions at cl 4.3 which set a maximum height for the site of 9.5m, the floor space ratio (FSR) provisions at cl 4.4 which set a maximum FSR of 0.5:1, and the provisions enabling variations to these standards to be considered at cl 4.6.

16. In this regard, it was agreed that the maximum permissible height would be breached and therefore the Court would need to be satisfied in terms of the requirements of cl 4.6 in order to grant consent.

17. The objectives of the height standard set out at cl 4.3 are as follows:

(a)  to ensure that the size and scale of development is compatible with the desired future character of the locality,

(b)  to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item,

(c)  to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.

18. The relevant provisions of cl 4.6 are as follows:

4.6   Exceptions to development standards

(1) The objectives of this clause are as follows—

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless—

(a)  the consent authority is satisfied that—

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Planning Secretary has been obtained.

(5)  In deciding whether to grant concurrence, the Planning Secretary must consider—

(a)  whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)  the public benefit of maintaining the development standard, and

(c)  any other matters required to be taken into consideration by the Planning Secretary before granting concurrence…

19. There was disagreement between the parties as to whether the FSR was complied with, namely, whether the ground floor outdoor play area comprised Gross Floor Area (GFA) which is calculated in order to determine FSR. The objectives of the FSR standard at cl 4.4 are the same as those for the height standard but include an additional objective as follows:

…

(b) to ensure that buildings are well articulated and respond to environmental and energy needs,

…

20. The applicant had submitted a cl 4.6 written request for the height breach, and also for the FSR breach should the Court determine that the FSR is exceeded.

21. The flooding provisions at cl 6.3 of the LEP were also required to be considered, being:

6.3   Flood planning

(1)  The objectives of this clause are as follows—

(a)  to minimise the flood risk to life and property associated with the use of land,

(b)  to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change,

(c)  to avoid significant adverse impacts on flood behaviour and the environment.

(2)  This clause applies to—

(a)  land identified as “Flood planning area” on the Flood Planning Map, and

(b)  other land at or below the flood planning level.

(3)  Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a)  is compatible with the flood hazard of the land, and

(b)  will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c)  incorporates appropriate measures to manage risk to life from flood, and

(d)  will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e)  is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.…

(5)  In this clause—

flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.

22. The applicant also argued that the provisions of cl 6.13 applied. These state:

6.13   Business premises, office premises, restaurants or cafes and shops in residential zones

(1)  The objectives of this clause are as follows—

(a)  to provide for the establishment and continued operation of small-scale business development in residential zones, used in conjunction with dwellings or otherwise,

(b)  to enable the use of existing commercial buildings for office premises, business premises, restaurants or cafes and shops in residential zones,

(c)  to provide neighbourhood-scale commercial development to encourage walking and cycling as preferred modes of access.

(2)  This clause applies to the following—

(a)  in Zone R2 Low Density Residential and Zone R3 Medium Density Residential—development for the purposes of business premises, office premises, restaurants or cafes or shops,

…

(3)  Development consent must not be granted to development to which this clause applies unless—

(a)  the development relates to a building that existed when this Plan commenced and was designed or constructed for the purpose of commercial premises, and

(b)  the consent authority is satisfied that—

(i)  the development will not adversely affect the amenity of any residential component of the development and the surrounding locality, and

(ii)  the intensity of development is suitable for the building, and

(iii)  the degree of modification of the footprint and facade of the building is consistent with the scale and desired attributes of surrounding development.

23. On September 1, 2017 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the SEPP) commenced. It contained a savings provision for applications lodged prior to this date. The parties agreed that the application needs to be assessed under the savings provision, and that compliance with the SEPP was therefore limited to compliance with the requirements of Part 4 of the NSW Department of Planning’s Child Care Planning Guideline (2017) (the Child Care Guideline) which references numerous compliance requirements under the Education and Care Services National Regulation. Non-compliance requires the approval of the Regulatory Authority (the Regulator), being the authority so defined under the SEPP.

24. The application was also subject to assessment under the Randwick Comprehensive Development Control Plan 2013 (the DCP). The relevant provisions of the DCP are considered in more detail later.

Objections to the development

25. The application was notified and 58 letters of objections were received in response to the original application, and 25 submissions in response to an amended application modified in order to address a number of concerns.

26. Key issues raised in response to notification of the original application were:

• the inconsistency with the intent of the R2 zone;

• non-compliance with development standards;

• that the development would be out of character with the area;

• the extensive building height and bulk (including the height of acoustic barriers);

• the impact on the amenity of surrounding residents;

• inadequate landscaping;

• the flooding of the site and adjoining sites;

• unsafe access and traffic impacts;

• insufficient parking placing pressure on existing on-street parking;

• operational and construction noise;

• the lack of demand for additional childcare facilities; and

• no demonstrated compliance with national child care standards.

27. The notification of the amended application resulted in objections raising similar concerns. Additional concerns were in terms of inadequate and non-compliant building setbacks and impacts on the streetscape and character of the area. Privacy and overshadowing impacts were also raised.

28. The hearing commenced on site and the Court heard from a number of objectors who reside in Burnie Street and Allan Avenue, as well as from the Chair of the Clovelly Precinct Association, all strongly objecting to the proposal largely for the reasons outlined in their written submissions.

29. A particular concern was the history of flooding of the site and adjoining properties and streets, with a child care centre an inappropriate use for such a constrained site.

30. Residents claimed the reason the site had been vacant for 65 years was due to its constraints, particularly flooding and associated subsidence.

31. Concerns were also raised with the detrimental impact on traffic flow and the safety of the intersection of Clovelly Road and Burnie Street, and that there was an oversupply of child care centres in the area and a lack of engagement with the local community as to their concerns, including the amenity impacts for surrounding residents. These included noise, overshadowing, outlook and privacy impacts given the height and side setbacks proposed. Finally, concern was raised with the facade and the lack of compatibility with the streetscape with a development seeking to maximise its footprint with no concern for those living near it and with a lack of green space and landscaping.

32. The development was claimed by one objector to not meet the requirements of the SEPP which was designed to drive high quality child care development. This application breached those guidelines in terms of context, built form respecting local heritage, neighbourhood fit, avoiding flood-prone land and by not providing quality landscaping. It also did not consider the impact on residential amenity in breaching many controls.

33. The Court viewed the site and surrounds given the amenity impacts raised by or on behalf of adjoining owners. This included viewing the site from within the dwellings at 43 and 53 Burnie Street as well as from properties at the rear in Allan Avenue.

Adding to the Contentions

34. The Statement of Facts and Contentions (SFC) filed by the Council in the proceedings raised a number of contentions including non-compliance with the height and FSR standards, the design and context of the site leading to overdevelopment which fails to respond to existing or desired future character and has amenity impacts for neighbours, and the number of non-compliances with DCP controls.

35. Whilst some issues were resolved by amending the application or through the joint conferencing of experts, the majority remained.

36. At the commencement of the proceedings, the Council sought leave to raise an additional contention in terms of flooding. Ms Gerathy, solicitor for the Council, referenced cl 6.3 of the LEP and the objectives of the DCP for flood planning at Part B8 as follows:

“• To control development at risk of flooding in accordance with the NSW Government’s Flood Plain Development Manual;

• To ensure that the economic and social costs which may arise from damage to property due to flooding is minimised and can be properly managed by the property owner and general community.

• To reduce the risk to human life and damage to property caused by flooding by controlling development on land impacted by potential floods.

• To ensure development is appropriately sited and designed according to the site’s sensitivity to flood risk.”

37. The DCP contains controls to minimise impacts of flooding and to ensure that floodways and overland flow paths are not obstructed or diverted onto adjoining properties. Development applications can be required to be accompanied by a site-specific flood study.

38. Such a study was undertaken based on modelling with certain predictions in terms of flood behaviour. It concluded that most of the overland flow would be at the front of the site with little contribution to the flow path at the rear. There were requirements for habitable floor areas to be above certain levels, but otherwise the flood study concluded that there would be no adverse effect on flood levels on or in the vicinity of the site.

37. However, many local residents raised concerns based on their localised knowledge as to the circumstances of the site and potential flooding and overland flow. A video of a stormwater event was provided, said to reflect their experience of site-specific circumstances where most of the water flooded down Clifton Road and Burnie Lane and across the back of the site.

38. An updated flood study was subsequently provided but similarly concluded that most of the overland flow would be at the front of the site. This was again disputed in objections lodged on the amended application. However, the Council did not raise a flooding contention in the filed SFC.

39. Subsequently, a broader flood study was commissioned by the adjoining Waverley Council and was now being undertaken by consultants, BMT. Randwick Council had contributed funds towards the study as part of the catchment includes the Randwick Council area including this site.

40. In preparing for the proceedings, the Council’s development engineer identified that the Council had received preliminary data from BMT, which was not in the public domain, which cast doubt on the veracity of the conclusions in the applicant’s flood study. This included that there would be more flood water at the rear of the site than shown in the applicant’s model.

41. The impacts of this on the design and on neighbours needed to be considered and, accordingly, the Council sought to add flooding impacts as a contention. The applicant did not oppose this motion, subsequently granted, accepting that the potential impacts from flooding need to be understood and resolved either by mitigation, design or management.

42. Consequently, the hearing was adjourned to enable the BMT flood study to be finalised in sufficient detail to determine impacts on the site, flood modelling to be reviewed, and the application to be amended if required in response. It was also necessary for expert reports to be updated as required to address the results and the design responses to, and implications of, this flood advice.

Dealing with the evidence

45. Prior to adjourning, extensive oral evidence was given by acoustic experts in response to matters disagreed in their expert Joint Report (Exhibit 4). These experts subsequently agreed that, subject to the appropriate treatments and conditions recommended, including acoustic barriers at ground level to a height of 2.8m as proposed in the amended application rather than to 2.5m as originally proposed, the noise from the child care centre would comply with the relevant noise criteria. Other treatments or conditions included barriers to a height of 1.3m around the first floor play area, and implementation of management proposals outlined in the PoM to limit the number of children in outdoor play areas to a maximum of 30 children at any one time.

46. Oral evidence was given by the flood engineers following the adjournment. All remaining contentions were addressed by the planners, being Mr Burrell for the applicant and Mr Grech for the Council. Mr Burrell had prepared the cl 4.6 written requests on behalf of the applicant.

47. Other that flood impacts, the contentions focused on the design and impacts of the development (on neighbours and in terms of compatibility with the character of the local area), and the non-compliance with the height and contended non-compliance with the FSR.

48. It would be usual to firstly deal with the pre-conditions to the granting of consent, in particular compliance with the height and FSR standards or acceptability of variations to those standards as required by the test at cl 4.6. However, given that that test for both standards goes to the compatibility of the development with the character of the locality and the impact of the development on the amenity of adjoining and neighbouring land, I consider it is first appropriate to overview the evidence on these issues. This comprised the predominant evidence in the proceedings and informed my finding of satisfaction under cl 4.6 in terms of meeting the objectives of the standards and of the zone.

49. It is also necessary to overview the findings of the BMT flood study and the implications for the application, as it was subsequently amended to respond to these findings.

50. I will, however, firstly deal with the evidence on the applicable DCP controls as this was also in contention between the parties and informs the consideration of the desired future character of the locality and the compatibility of the development proposed.

DCP controls

The Council’s position

51. Part D11 of the DCP contains specific provisions for child care centres. The Council contended that Clause 2.3 of Part D11 requires Part D11 to be considered in conjunction with other parts of the DCP including Part C of the DCP which deals with residential development.

52. The introduction to Part D11 states as follows:

“This section sets out objectives and controls to guide the location and design of child care centres with a key focus on ensuring the safety and well being of children and achieving a high standard of amenity for the site and surrounding locality, particularly adjoining residential land uses.

Child care centres that are appropriately located and suitably designed provide an important community service, contribute positively to the developmental growth of children and operate with minimal impact on the surrounding locality…”

53. The Council also referenced the following specific objectives of Part D11 as relevant to the assessment of the application:

“ • To provide for the establishment of high quality child care centres that are located and designed to achieve a high level of safety, security, environmental health and amenity for their users.

• To ensure that child care centres respond positively to the context and setting and minimise adverse environmental impact in the locality.”

54. In selecting a child care centre site, Part D11 also states:

“Careful consideration must be given in choosing a suitable location for a child care centre as not all sites are appropriate for this form of development.

Site selection should take into account the needs of centre users in terms of safety, security and environmental health, and in residential neighbourhoods consideration should be given to ensuring that the commercial nature of a proposal does not unreasonably impact on upon the amenity of residents (sic).

An acceptable location for a child care centre depends on a number of factors including capacity, scale, compatibility with neighbouring land uses, potential for exposure to safety risks and environmental hazards, vehicle movements, sightlines and pedestrian safety.”

55. The DCP states that Part D11 applies to applications for the construction of new purpose built child care centre, as is proposed, stating the section should be read in conjunction with Part A - Introduction, Part B - General controls and Part C - Residential controls. Accordingly, Part D11 does not reproduce setback, landscaping, or other numeric controls in these sections.

56. Part D11 does contain objectives and broader controls for building design noting that the design of a new child care centre can impact on the amenity of a streetscape, with centres that are sensitively designed in terms of built form, scale and massing, positively contributing to the streetscape. Child care centres are required to comply with the relevant LEP height and FSR controls which apply to the site to ensure an appropriate built form outcome.

57. The DCP recognises that child care centres in residential zones could have adverse impacts. Accordingly, the controls require that, for new child care centres in the R2 zone, the building design is to be similar to a dwelling house in terms of built form, scale, massing, roof design and articulation. This requires avoiding large expanses of blank and unarticulated walls and having appropriate setbacks, as side setbacks have a significant influence on the relationship between buildings and the overall character of the streetscape. Setbacks for child care centres must therefore be generally consistent with the requirements of the relevant zone and ensure adequate separation between neighbouring buildings for visual and acoustic privacy, solar access and air circulation purposes.

58. The DCP therefore states that new child care centre developments must address the setback controls for dwelling houses set out in Part C1 of the DCP or demonstrate that alternative setbacks are suitable having regard to the zoning of the site and alternative controls in this DCP. Increased setbacks may be required in certain circumstances having regard to privacy, solar access, to achieve reasonable view sharing with neighbouring properties, and to provide the required amount of open space.

59. Landscape design is to reflect the prevailing landscape character of the streetscape in terms of scale and planting. Landscaping must be designed to minimise the visual impact of the development on the streetscape and neighbouring properties. A landscape buffer with suitable screening plants should be provided along the side and rear boundaries.

60. Part D11 also deals with amenity concerns and acoustic requirements as well as with play areas, drawing a distinction between outdoor and indoor play areas. The objectives are to provide attractive play areas that are safe, functional, and support development and growth.

The applicant’s position

61. It was argued by the applicant that the proposed centre was not a dwelling house and therefore should not have dwelling house controls applied. The Council was trying to slavishly apply residential controls to a child care centre.

62. The focus of the assessment must be on Part D11 of the DCP as it cannot be right that a purpose-built child care centre has to strictly apply dwelling controls. Part D11 only states that the part should be read in conjunction with the residential controls. This does not mean that those controls must be strictly complied with. The intent is to promote and encourage development not to limit and restrict it, having regard to the objectives for such facilities. Mr Grech had also agreed that, whilst having to have regard to the DCP residential controls when considering the development, this does not mean that those controls should be strictly applied, only that they inform the character of the area.

Flooding

63. The Council argued that what is proposed is a sensitive land use. It is a child care centre and the site is agreed to be flood prone.

64. Ms Gerathy argued that the Council and residents’ concerns were well founded as the BMT study’s interim results indicated that there would be increased off-site flooding impacts and modifications would be required to the application. The off-site impacts included potential flooding of basement car parks of RFBs in Burnie Street and additional floodwaters on adjoining properties. In this regard, the results indicated that there was more water flow across the site than had been anticipated, modelled by the applicant, or accommodated in the design.

65. In response, leave was sought for the application to comprise amended plans responding to the flood outcomes as they affect the site. The Council did not oppose leave being granted subject to a finding that the amendments to the application were not minor, as the applicant agreed. Several plans were revised to show flood treatments required onsite which impacted the driveway and basement configurations. Pipe sizes were increased and pipes placed under the basement floor. As a consequence, deeper excavation and flood mitigation and detention works were also required in the northern portion of the site adjoining the rear boundary to retain flood waters from adjacent properties and roads that currently flow across the site.

66. It was also not possible to decrease flood levels in a portion of the outdoor play area designated as a deck to achieve safe 1:100 year flood event levels, with water 1m above that proposed deck. The deck was therefore redesigned to not comprise play area but to be non-trafficable.

67. As a consequence of the modified design, the number of children able to be accommodated was reduced in the application from 80 to 67, the number of staff reduced to 15, and the number of parking spaces also reduced. The PoM was amended to reflect these changes which also reduced the number of children proposed to be outside at any one time, albeit no revision to acoustic treatments was proposed. There would also be decreased landscaping adjoining neighbouring properties in order to accommodate the required drainage infrastructure.

68. Leave was granted to the amendments to the application on the basis the amendments were not minor and included amended architectural plans (Exhibit U) and civil engineering plans (Exhibit V).

69. Expert evidence on flooding was provided by Mr Francis for the applicant and Mr Flanigan for the Council. They prepared a revised Joint Report (Exhibit 8) in response to the BMT flood study interim results and having regard to the amended application and plans.

70. The experts agreed that the BMT modelling is more accurate than could be undertaken by the applicant. The issue is the amount of water flowing from Burnie Street through the site to the rear and the need to not increase post-development flows down Burnie Street or Clovelly Road. Floodwaters therefore must be intercepted and accommodated on-site.

71. The experts disagreed in terms of the impacts on flows from existing and proposed site boundary fencing. Whether this fencing is permeable, semi-permeable or impermeable has an impact on flows to adjacent properties.

72. Mr Flanigan had several concerns. He claimed that 7 downstream properties could be affected in Burnie Street and Allan Avenue and that there would be increased flows at the intersection of Clovelly Road and Burnie Street.

73. The results indicated there would be adverse impacts in the depth of flooding to 53 Burnie Street of up to 200mm, or 20cm, which he considered unacceptable. He argued that some councils do not allow any increase in flood levels of adjoining properties but, if so, to a maximum of 2cm not 20cm.

74. He was also concerned that the BMT modelling is based on only 2m grids so there would be some discrepancies in where the flooding occurred.

75. Mr Francis argued that adjoining properties are already affected by flood flows, including 53 Burnie Street, and the results indicate that some areas may have increased flood levels whilst others would have decreased levels as a result of the proposed development of the site. It is more the location and concentration, rather than the extent, of flooding of these properties that is impacted. In his view, what is proposed will just shift the concentration or depth of water, although he agreed that 20cm is not a slight increase in depth.

76. Mr Francis advised that he had adopted a cautionary approach but he disputed that the Council should be concerned at precedent of allowing such development as the catchment impact is not at issue. Other properties could also adopt flood mitigation measures as is proposed for this site.

77. Mr Flanigan disagreed as the idea of modelling was to set levels for flood planning and it would be an adverse and an unacceptable impact to allow a development such as this which changed the flood outcomes for adjoining properties.

78. Ms Gerathy submitted that the site “had been engineered to within an inch of its life” in order to try and satisfactorily accommodate its flooding constraints. Works required to address these constraints, in addition to a large on-site detention basin, include surcharge pits, increased pipe widths and grates. The Council argued this was retrofitting the site and did not accept that this extent of work would be required for low density residential development particularly given such development would not have basement parking with that basement restricting flows through the site. Further, by changing the flooding regime on adjoining properties, it could impact their potential to develop.

79. Mr Francis argued that any development of the site would require adequate conveyance of flood waters through it although he accepted that, if the scale of the development was reduced, the scale of works could also be reduced.

80. It was agreed that the flood mitigation works required comprised critical infrastructure which would need to be maintained for the life of the child care centre. However, Mr Francis disagreed that there was anything unusual about managing such infrastructure.

81. Neither expert knew why Sydney Water had acquired and subsequently disposed of the site. They did advise that the BMT study had yet to be finalised or its recommendations presented to Waverley Council.

82. The outcomes of the flooding review were considered by the planners with Mr Grech raising concerns with the PoM. Firstly, it did not confirm if the proposed “refuge in place” shelter location was going to be above the probable mean flood (PMF) level. Secondly, it did not detail what is proposed for parents trying to pick up children in the event of a flood.

83. In this regard, whilst the PoM referenced provision of a “refuge in place” for both children and staff in the event of a flood emergency, there was no indication of the location of this refuge.

84. Mr Grech was of the view that a proper assessment and analysis was required to inform what the PoM should include, but this has not been done. The PMF level is not stipulated or even known albeit he understood that it would be provided. It is also necessary to understand the warning time available, the likely flood duration and what parts of the building will thereafter be available as a safe refuge.

85. He stated that the applicant needs to understand that, wherever the children are kept, they need access to the facilities they require for the flood’s duration. It is also necessary to understand what emergency measures the relevant authorities will take or put in place. For example, if roads are closed, a procedure is required and communicated to parents so they do not attempt to access the site unsafely.

86. Mr Grech was aware of a situation where a flood “refuge in place” for a child care centre had been proposed. In response, a council had pointed to an example where, during a major flood, there had been issues as roads were blocked, children were held on site at the refuge (being the most appropriate thing to do) but parents were placing themselves at risk trying to get into the centre. The most common way of death during a flood is misadventure, such as people driving into flood waters. Therefore, it is not only the children at risk from flooding, it is also the people trying to access them.

87. Mr Palmer indicated that there would be further discussions with emergency services to work out the appropriate detail of what exactly the emergency responses will be before the evacuation plan is finalised.

88. Further, the applicant would be content with providing the refuge at the first floor, if that was the expert advice. In that location, there are bathroom, laundry and play facilities, being all of the facilities you would expect children to need for whatever duration was required. He accepted that more detail was probably required as to how parents would be notified, but if the applicant committed to providing the refuge on the first floor that should be sufficient detail for the Court's purposes in order to make a decision now, with the final regulatory sign-off by another agency.

The design and impacts of the development

89. The parties disagreed on whether the design of the development complied with the relevant controls, what those controls were, the associated impacts on the streetscape and neighbours, and what the locality comprised in terms of considering the objectives of the zone, and of the height and FSR standards.

The Council’s position

90. The Council noted that the site is adjoined to the west by a row of neighbourhood shops, the immediately adjacent one also containing an upper level residence at 43 Burnie Street. Immediately to the east is a semi-detached dwelling at 53 Burnie Street. Semi-detached dwellings also exist at 55, 57 and 57A Burnie Street and dwellings adjoin the rear of the site at 1, 3 and 5 Allan Avenue. The dwellings are a mixture of 1 and 2 storeys.

90. The Council argued that the site is surrounded by 6 residences. In that respect, development of it needs to respond with heightened sensitivity. It is not merely how the scale of the proposal is viewed from the streetscape but from these residences and also beyond the site given the elevation of sites above it.

91. The site is zoned for low density residential development, as are the neighbourhood shops and the entirety of the block containing the site. Across Clovelly Road, the zoning is R3 and there is a range of development, including RFBs, one of which is a heritage item under the LEP. No contention was raised in terms of the impact of the development on that item.

92. Whilst a child care centre is permissible with consent in the R2 zone, this is subject to assessment against the controls and relevant heads of consideration. The permissibility of the use therefore does not mean that it will be acceptable given the requirements to consider under s 4.15 of the EPA Act. What is proposed inserts a non-residential use in a low density residential zone, and such a use must therefore be sensitively designed, as the controls require.

93. The provisions at Part D11 of the DCP have a key focus of ensuring safety and wellbeing of children and achieving a high standard of amenity for the site and surrounding locality, particularly adjoining residential uses. Child care centres have to operate with minimal impact on the surrounding locality. Controls are imposed to ensure that centres respond positively to their context and setting and minimise adverse environmental impacts.

94. The objectives of the DCP controls are therefore to facilitate the establishment of small scale child care centres in residential neighbourhoods referencing centres as being of a similar design to a dwelling house, with single storey buildings encouraged.

95. What was proposed was an 80 child centre (later modified to 67 but only in response to the flooding constraints). The building’s form, scale and massing does not complement or enhance the established or desired future character of the streetscape, nor minimise impacts on neighbours. It does the opposite. The building does not resemble a dwelling house and is not single storey. Whilst the applicant claimed from the outset that the design was in part a result of the site’s flood constraints, this was even before the full extent of the flooding implications was known. Yet nothing has changed as a result of the modified proposal and reduced number of children in terms of setbacks, height, the location or height of acoustic walls, or the size of the basement. What is proposed still has too much built form and too big a basement.

96. The fundamental proposition and starting point for the Council, which had not changed, was that the proposal, even as amended and being for a permissible use, is an overdevelopment of the site that does not respond to its context, its neighbours or the controls.

97. Mr Grech prepared a table of non-compliances with these controls based on the application considered in joint conferencing. This showed a proposed height of 10.899m relative to a maximum permissible LEP height of 9.5m. Under residential controls, the wall height of 9.89m on the western elevation also did not comply with the DCP maximum of 7m, and deep soil landscaping is required to be 35% of the site but was only 9.5% resulting in excessive site cover at 70.5% relative to a DCP maximum permissible of 35%.

98. In terms of setbacks, the first floor would be required to be setback a minimum of 1.8m from the side boundary but setbacks of only 1.2m are proposed and, on the western boundary, stairs have a nil setback. Further, these minimums should be increased to address amenity concerns, but are not. The rear setback is required to be 8m but is only 5.27m to the basement and 0.9m to an outdoor deck. Stormwater infrastructure is also located within this setback area.

99. The scale, massing and bulk is incompatible with the residential character of the locality and has amenity impacts particularly on its immediately adjoining neighbour at 53 Burnie Street which is a single storey semi-detached building with windows only facing west out to the site. The entire built form of that dwelling will be engulfed and enclosed by the proposed walls of the child care centre to the extent that there will be no vista or outlook to the sky, and no access to light other than in the rear yard. In terms of articulation, what is proposed is a solid wall adjacent to No. 53 punctuated only by glass blocks at some locations.

100. Mr Grech considered that what was proposed would be a building “towering over” No. 53. He agreed emphasis should be placed on protecting the amenity of the living area windows, but what is proposed still has unacceptable impacts despite endeavours to reduce these. Introducing a planter and a lower parapet to the eastern side elevation would not result in an acceptable outcome.

101. In terms of what was proposed relative to a compliant residential development, as hypothesised by Mr Burrell, Mr Grech disputed that this could be 3 storeys. His understanding was that any third storey was required to be in an attic in order to comply with the wall height and overall height controls. In any event, 2 storeys is more characteristic of what is occurring in the area and more compatible with the desired future character.

102. Further, a compliant dwelling on the site would not extend into the rear as much as is proposed. There would also be less parking required, less need for hard surfaces, and less site cover which, in this application, is effectively the whole of the site. Accordingly, more meaningful deep soil landscaping could be provided in the rear year and a building designed to respond more sensitively to its neighbours.

103. In terms of impacts on the adjoining dwelling to the west, at 43 Burnie Street, which is partly erected above the existing shop and partly a rear extension, the development will have a similar “canyon-like” effect. This dwelling has windows effectively on the boundary of, and oriented to, the site and a balcony effectively running the full length of the side boundary. The Council therefore had concerns with impacts on the outlook from, and privacy of, this dwelling. Notwithstanding the proposed privacy screen adjoining the fire stairs, the dwelling’s windows would remain in close proximity to these stairs with egress outside the bedroom windows all along the side of that residence.

104. In this regard, Mr Grech’s evidence was that the top edge of the proposal on its south-western corner equates in height to the top edge of the parapet of the shop at 43 Burnie Street. Along that side, the ground level of No. 43 is at a similar level to the ground floor of the proposal. If standing in the dwelling at No. 43, one would be looking at the first floor of the child care centre, which contains windows, and vice versa. The most affected windows are bedroom windows and, from the front windows, the outlook would be to the fire stairs, the safe haven and the wall of the ramp to the basement. Further, the length of the western side wall of the proposed centre is some 14m.

105. From a number of windows and much of the sidelong balcony of No. 43, given the proximity to the side boundary and the outlook, residents would not only look at, but also up to the parapet of, the proposed building which will be at a level at least 1m higher than standing eye level.

106. In terms of the impacts on neighbouring properties to the rear, from the upper levels of 1 and 5 Allan Avenue, the whole of the site can be viewed whilst from the ground floor of 3 Allan Avenue, the development above the boundary fence will be visible with the outlook to the acoustic screen at the ground level and the building above. The Council accepted that this view would be partially screened if two existing trees at the rear of the site were retained, which the applicant agreed to do. However, there is little or no opportunity for additional deep soil landscaped screening for those three dwellings to be provided at the rear of the site.

107. Finally, the design and capacity of the child care centre require acoustic mitigation, based on revised acoustic barriers of a height of 2.8m, and for the entirety of the ground floor space underneath the first floor of the building to be outdoor play space, which has limited amenity. This is in an R2 zone where development needs to respond with heightened sensitivity because a high level of amenity is expected and required by the controls.

108. In this regard, two key objectives of the R2 zone are not met, being to recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area, and to protect the amenity of residents.

109. The LEP also specifies a maximum height and FSR, neither of which are entitlements given the need to take into account the site circumstances, and yet both of which are contravened. The DCP also has requirements, such as maximum site cover, as well as objectives that must be met. Development therefore must be considered in its context, which Mr Burrell agreed with.

110. The objectives of the height and FSR standards include to ensure that the size and scale of development is compatible with the desired future character of the locality and to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. It is not to “minimise” impact, it is to ensure that it “does not adversely impact”, as this proposal does.

111. Instead the development relies on two cl 4.6 objections, one for height and the other for FSR, in order to exceed the LEP controls. Collectively this results in a bulk and scale incompatible with the locality. Further, by amalgamating two lots, the site will be substantially wider than most sites in the vicinity.

112. Landscaping was also important to soften the built form but an insufficient amount was provided. In particular the DCP notes that landscaping plays an essential role in integrating development, enhancing the appearance and amenity of sites and the locality. There is a DCP objective to ensure landscaped areas are effectively distributed on the site to achieve a visual balance between building structures and open space. This is not achieved.

113. In summary, the development does not respond to the suite of planning controls that apply.

114. In terms of what the locality comprises, Mr Grech defined an area considering the land use pattern and zoning and noting the road network around the site. He described this area as predominantly 1-2 storey detached and semi-detached dwellings. There are the historical shops in Burnie Street but, otherwise, the locality has a pattern of defined setbacks with rear gardens landscaped to varying degrees including with canopy trees which are able to be seen. Given the site backs onto properties which front Allan Avenue, there is a convergence of rear yards creating a “green belt” which is a feature of the locality, being rear yards in a landscaped setting.

115. The R2 zone objectives expressly seek to protect the existing desirable elements of the area and promote designs responding to the desired future character of the locality. This locality is not confined to the visual catchment or adjoining sites but is broader in context. Further, streetscape is one thing, visual catchment another and locality something else. The applicant was conflating visual catchment with locality which is not how the controls work.

116. The Council also disagreed that cl 6.13 of the LEP, and the associated DCP controls, applied. The clause applies to business premises, office premises, restaurants or cafes and shops in existing buildings in residential zones. The clause objectives are to provide for the continued operation of such small-scale businesses.

117. The associated DCP controls only apply to business premises which are expressly defined in the LEP as a subset of commercial premises, and which do not include child care centres. Centre-based child care centres are separately defined. Clause 6.13 purely looks at small neighbourhood-scale businesses, retail outlets, restaurants or cafes as it recognises that such uses are sprinkled throughout the R2 zones, such as west of the site in Burnie Street. Otherwise they would need to rely on existing use rights. Therefore, cl 6.13 seeks to legitimise such uses but the clause simply does not apply to child care centres or any other commercial use separately defined.

118. Finally, whilst the Council did not raise a contention in relation to car parking or traffic, these were concerns raised by residents in terms of demand for on-street parking, propensity for double car parking and unsafe traffic movements.

The applicant’s position

120. Mr Palmer submitted that the use was permissible in the R2 zone and the Court has determined that zoning and permissibility must have work to do.

121. It was accepted that the site is constrained, particularly by flooding, but the development properly responds to these constraints. The built form proposed is compatible and entirely in keeping with what the controls contemplate for this site and the locality.

122. In the modifications undertaken, there had been an appropriate treatment to the side elevations particularly having regard to the impacts on adjoining neighbours. The external western stairs would only be used in emergency situations and only for fire egress, and would now be screened.

123. Further, the applicant had accepted all of the recommendations of the acoustic consultants which were incorporated into agreed conditions of consent as well as the revised PoM which would regulate the hours of operation of the centre, the number of children and play activities.

124. The acoustic recommendations were based on more children than is now proposed in the revised proposal including in the outdoor play area. Therefore it must be concluded that the acoustic outcome will be acceptable.

125. In addition, the expert traffic report indicated that there will be no impact on the road network and the parking was compliant, with no reliance on on-street parking. The Council did not contend otherwise.

126. Further, the building responded to the variety of built form in the locality which includes adjoining shops and RFBs across the road and to the west and east as well as dwelling houses.

127. The Council incorrectly applies the residential dwelling controls of the DCP even though the DCP has specific controls for child care centres at Part D11. The proposal complies with all of the controls in Part D11. Nowhere does the DCP say that the centre has to comply with the residential dwelling controls. Nor could it expect to. Nevertheless, the bulk and scale of the building is what is expected in the area and the design responds to its context. Further, “similar to” dwellings does not mean “the same as”.

128. The height non-compliance was agreed to result from the excavation of the site (associated with the required remediation), and Mr Grech accepted this. The overall height of the building was nevertheless in keeping with that which is around it and that which would be expected from the controls.

129. Mr Burrell had prepared a compliance table which varied from Mr Grech’s. It showed less site cover and more deep soil landscaping. With decked areas and paving excluded from site cover, Mr Burrell calculated the site cover to be 55% with 35% of the site deep soil landscaping. He also noted that ancillary structures were permitted in the 8m rear setback area, as were proposed.

130. To address the Council’s concerns with the lack of articulation to side elevations and the impacts associated with their proximity to the side boundaries of 43 and 53 Burnie Street, the applicant had amended the application. These amendments included the vertical blades above the retaining wall replacing the full solid wall on the southern side of the ground floor outdoor play area and with the area above the louvres open. Mr Palmer submitted that, irrespective of this change, the undercover outdoor play space is not GFA, but that this change puts that beyond any doubt.

131. The plans had also now been amended to reconfigure the openings to the driveway ramp so that it now picks up the architecture of the fenestration element above and the openings are now louvred. The element to the rear of the proposed building, being the external wall of the ground floor indoor play room, had detailing introduced into the façade and space for a green roof and wall elements extending down the building in that location.

132. In terms of the impact on the outlook from No. 43, the applicant argued that, in response to these concerns, screening of the external stairs was now proposed to avoid cross viewing. Further, there would now be a green wall and roof opposite effectively half of the length of the side balcony. From the rear windows, and a portion of the side balcony, there would be an outlook across a play area and the open space at the rear of the child care centre.

133. In terms of the stair screen, the experts agreed it probably did not need to be full height and would ensure privacy. Albeit Mr Grech argued it would add further bulk and scale to the building and adversely impact the outlook for neighbours, he accepted that the modifications were an improvement.

134. Mr Burrell argued that any building on the site, compliant with the setbacks, would have some impact on the outlook from adjoining properties but particularly from No. 53. Given the location and orientation of the windows in that dwelling, they were always going to be very difficult to protect. What is proposed is a 1.2m setback where a semi-detached dwelling could be as close as 900mm for up to 3 storeys. Therefore, whilst there will be some impact, these are primarily to bedrooms windows, being windows of rooms of “less intensive” use where some impact has to be accepted.

135. The concerns should be with the outlook from and privacy of the kitchen and living room windows in order to provide a greater sense of openness for those rooms. Accordingly, the plans were amended to soften the elevation to these windows, within acceptable reason, with the parapet edge dropped some 800mm, the upper level recessed, and planter beds and glass block walling provided. This would introduce what Mr Burrell described as:

“…(s)omething of acceptable visual interest as you look out into the building.”

136. Further, the proposed building has a depth which takes its cues from the rear setbacks of neighbouring buildings at No.’s 43 and 53, and is generally consistent with these rear setbacks, other than for the basement which is a feature specific to a child care centre and needs to be accommodated.

137. It was also argued that 53 Burnie Street has the opportunity to be redeveloped containing as it does a small building out of character in the area. Nevertheless, it exists and has been treated with sensitivity in the design.

138. Mr Palmer also submitted that the residents of 43 and 53 Burnie Street cannot expect the site to remain undeveloped and their outlook to remain unchanged. Even a compliant development would have impacts which are inevitable given the location, orientation and nature of the dwellings at 43 and 53 Burnie Street. This includes living areas overlooking the site. The outlook to the rear of these properties would not, however, be impacted.

139. In terms of the character of the local area, I should be satisfied that what is proposed is similar to residential development as contemplated by the relevant LEP and DCP controls. In this regard, the location isn’t a standard R2 location but is informed by shops, an R3 zone and RFBs opposite and nearby. Accordingly, any controls for the R2 zone must be flexibly applied.

140. In this regard, there are no numeric side setback requirements for child care centres in Part D11 of the DCP. Even the residential controls are not “must comply” requirements but only require that developments “be consistent with” adjoining setbacks. In this regard, the adjoining shops have no side setbacks and semi-detached dwellings in the vicinity have less than 1.2m. The proposed development therefore has greater side setbacks than are evident in the streetscape in the vicinity.

136. The planners had agreed that the development would present as 2 storeys to this streetscape and, but for the western fire stairs, it complies with the 1.2m side setback control for 2 storey dwellings, even though the centre does not have to comply with the DCP residential controls. There are also now no contended unacceptable privacy, solar access or view sharing impacts.

137. There was no issue raised by the Council with the front setback and the presentation to the street accords with what would be expected in the zone. Further, adjoining development has limited if any front landscaping and what is proposed for this development is greater than that. In any event, there is no area control for landscaping at Part D11 of the DCP, only a requirement to meet the objectives. What is proposed to meet these objectives includes planters and a green roof and wall to soften the visual impact of the building.

138. Due to flooding constraints and the need to provide basement parking, additional landscaping is not possible and the proposed detention basin would be required for any form of development on the site.

Is the height non-compliance justified under clause 4.6 of the LEP?

Overview of the breach

144. The maximum permissible height on the site under the LEP is 9.5m. The maximum height of the proposed building is 10.89m, a non-compliance of 1.39m. It was therefore agreed that there was a height breach and, as a pre-condition to granting consent, the requirements at cl 4.6 of the LEP had to be met.

145. By way of background, Mr Palmer submitted that the site, pre-remediation, did not have “the enormous dip” that exists today. Whilst it still would have sloped front to rear and crossways, it was relatively level as evidenced from photographs after the excavation which demonstrate how the change in levels has come about resulting in the proposed height variation. Further, it is unusual for excavation to have occurred prior to a development application being determined and when measuring height for that determination.

The cl 4.6 written request

146. A cl 4.6 written request (the request) was prepared seeking to justify the height breach for the development as modified and as is required by cl 4.6 (Exhibit DD).

147. The request references the various Court authorities that deal with meeting the requirements of cl 4.6 including Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) and Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118.

148. In terms of the need to satisfactorily demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, the request relies on demonstrating that the objectives of the height standard are achieved notwithstanding the numerical non-compliance, that being one way of demonstrating the standard is unreasonable or unnecessary as outlined in Wehbe.

149. In terms of objective (a),  to ensure that the size and scale of development is compatible with the desired future character of the locality, the request in summary argues that:

• The Council’s planning documents do not reveal any desired future character statement for the locality.

• The site, whilst being in an R2 zone, is situated at the junction of several streets and is in proximity to traditional older style commercial buildings not conventional in an R2 zone. The shops in the vicinity on the same side of the street have a larger and consistent size and scale, unlike conventional dwellings, being up to 3 storeys. To the east, buildings are residential but mixed in scale, height, size and form. The immediate neighbour to the east is an exception and is one in a pair of single storey semi-detached dwellings. Further to the east there are 3 storey buildings.

• Given the diverse forms in the locality, the proposed design is of a scale consistent with the established character of the locality and is designed to be a “book end" with the shops to the west whilst respectful to the adjoining residential “semis”. Although the scale proposed differs from the semis, the site and these semis provide a “gap tooth” in the street and it is inevitable that this “gap tooth” will be filled to be consistent with neighbours to the east by being either 2 or 3 storeys.

• The location of the non-compliant height is set well back from the front and rear boundaries and as such does not detract from the character that would be anticipated to result from the controls noting that the non-compliance results from an artificial existing ground level lower than that of surrounding lots.

• The proposal sits comfortably on the site with the size of the building, in terms of its depth from front to rear, relating to its neighbours. Buildings in the locality do not have consistent rear setbacks. However, typically the bulk of buildings is closer to the street and diminishes at the rear, whilst the shops to the west have lesser backyards.

• Despite the flooding of the site constraining development, a reasonable separation distance is provided from neighbours.

150. In terms of objective (b), that is to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, there is a heritage item opposite at 298 Clovelly Road. During the proceedings, the Council agreed that this item would not be affected by the development and the objective was met. However, the request notes only that the objective is not relevant to the proposal, as the item is well removed from the proposal, but then also states that the objective is nevertheless achieved with respect to this item.

151. The final objective, objective (c), is to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. Despite the extensive written and oral expert evidence dealing with amenity impacts to neighbours, which I have summarised, the request only states as follows in terms of meeting this objective:

“The proposed building elements are well modulated to reduce apparent bulk and are compatible in scale with the existing and surrounding buildings and the streetscape.

Adverse impacts in terms of visual bulk, loss of privacy, overshadowing and view are minimised by the proposed development, and there are not adverse impacts arising from the non-compliance with the height control.”

152. As to demonstrating that that there are sufficient environmental planning grounds (EPGs) to justify contravening the development standard, the request states that the following are those EPGs (in summary):

• The site is subject to significant flood planning levels which require the ground floor to be raised above street level.

• The non-compliant height is also attributed to the recent removal of contaminated material to a depth of approximately 1.06m across the site which has resulted in a significantly altered landform. This occurred prior to the purchase of the land by the applicant. The levels within the site are therefore existing ground levels but not natural ground levels. The non-compliance is therefore a technical non-compliance.

• The architect had indicated that, without the required remediation, the proposal would have generally complied with the height standard other than at the rear where the site adjoins the larger mixed use development to the west.

• The non-compliance on the western side of the building will not have any unreasonable impacts on the western neighbour.

• The development appropriately responds to the site conditions and constraints and in particular aims to ameliorate flooding issues attributed to the site’s current open character.

• There is a compatible built form outcome with no adverse or unreasonable bulk or visual impacts on the local context which is characterised by ribbon commercial development to the west up to 3 storeys and a 3 storey building two properties removed to the east.

• The proposal complies with relevant planning controls in terms of setbacks, solar access and car parking.

• The proposal will maintain existing levels of privacy, not result in reasonable loss of views, not generate any adverse traffic or parking impacts, and have no adverse heritage or streetscape impacts.

153. In seeking to demonstrate that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the R2 zone, the request revisits the objectives of the standard but, in addressing these, the wording is somewhat different. Materially, this includes a statement that:

“The proposal has been designed to be compatible with the existing character of development in the locality in terms of size and scale. The existing built form in the immediate locality or the streetscape in the vicinity is considered to represent the desired future character. In this regard the proposal is consistent with the size and scale of the locality.”

154. To the extent that objective (b) applies and the heritage item at 298 Clovelly Road is considered to be “near”, it is stated that the scale and character of the proposed element is compatible with that item.

155. Finally, in terms of objective (c), to ensure that the development does not adversely impact the amenity of adjoining and neighbouring land, the request states that, whilst the development does not comply with the standard:

“…(t)his submission confirms that it performs comparably to a complying proposal without adversely impacting on the amenity of adjoining land and neighbours in terms of visual bulk, loss of privacy, overshadowing and views.”

156. In terms of consistency with the objectives of the zone, the request argues that a number of objectives did not apply as they related to housing or existing commercial developments. Of those that did apply, the development:

• Met the objective of enabling uses that meet the day to day needs of residents.

• Recognised the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, contributed to the desired future character of the area. The only statement made to demonstrate this was that the desirable elements of the existing streetscape and built form that contribute to the desired future character;

“…(h)ave been integral in its design as discussed in detail in the original statement of environmental effects.”.

• Protects the amenity of residents, stating as follows:

“The protection of the amenity of residents in the immediate locality is integral in the proposal’s design. The proposal includes a stormwater basin to ensure the safe flow of overland stormwater across the site and also includes the protection of neighbours’ trees in the vicinity of the basin. The design of the proposed child care centre has been a collaborative design approach with acoustic consultants and landscape designers which will ensure an acceptable standard of acoustic and visual amenity for nearby residents will be maintained. The proposal will not result in any unreasonable shading of adjoining private open space or habitable rooms.”

157. The request also states that the concurrence of the Secretary could be assumed as no matters of significance for state or regional environmental planning arise. In this regard, the circumstances of the case should be balanced against the usual presumption of public benefit in maintaining a development standard. The height is justified and the variation sought:

“(w)ill enhance the utility of the existing development without significant adverse impacts on neighbouring amenity or the public domain.”

158. In submissions, Mr Palmer noted that Mr Grech did not have any specific concerns with the height breach, per se, and accepted that, in terms of meeting the objectives of the standard, “no adverse impacts” must be interpreted as meaning beyond what would be anticipated under the controls.

The Council’s submissions on the cl 4.6 request

159. Ms Gerathy filed written closing submissions which she stated demonstrated that the request on the height breach did not satisfy the tests required by cl 4.6. The Court therefore had no power to issue consent to the development.

160. In particular, the request did not demonstrate that the objectives of the standard or the zone could be met, and they could not be given the adverse impacts that arise from what is proposed. Further, the request did not demonstrate that compliance with the height control was unreasonable or unnecessary.

161. The Court of Appeal in RebelHM Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 confirmed that the Court must be directly satisfied in terms of the matters at cl 4.6(4) and the state of satisfaction that compliance is unreasonable or unnecessary and that there are sufficient EPGs to justify the contravention must be reached only by reference to the request itself.

162. Further, the evidence in the proceedings cannot be used to supplement what is in the written cl 4.6 request: Abrams v Council of the City of Sydney [2019] NSWLEC 1583. However, the evidence in proceedings can be considered in determining the state of satisfaction of whether the proposed development is in the public interest.

163. The request relies on demonstrating that the objectives of the height standard are achieved notwithstanding the non-compliance with the standard.

164. However, objective (a) of the standard is to ensure compatibility with the desired future character of the locality. This is contrary to the request which seeks to demonstrate compatibility with the current existing character of the immediate locality and incorrectly asserts that that the existing built form in the locality or streetscape in the vicinity represents the desired future character. The request further incorrectly defines the locality and impermissibly imports the words “immediate locality” or “streetscape in the locality” into the objective.

165. Further, and contrary to what is stated in the request, the lack of a desired future character statement in the DCP is not evidence of a lack of desired future character. That character is to be gleaned by reference to the suite of controls that apply to development in the R2 zone. Those controls are found in Part C1 of the DCP and envisage low density residential development comprising single dwellings, attached dual occupancies and semi-detached dwellings. The request therefore fails to address how the proposed development achieves the objectives of the standard by having regard to such likely future development in the locality.

166. As was outlined in their expert Joint Report (Exhibit 3) and in oral evidence, the planners disagreed on the extent of the locality. Mr Burrell restricted it to the immediate visual catchment and adjoining neighbours whilst Mr Grech argued that it was a broader area being the locality that occupants could feel a sense of association with based on features such as topography main roads, land-use changes, and the like.

167. Mr Burrell accepted during the proceedings that the objectives of the R2 zone were to protect a high level of residential amenity and were indicia of the desired future character of the locality. He also accepted that the predominant form of development is 1-2 storey detached or semi-detached dwellings characterised by landscaped rear yards with canopy planting.

168. Finally, objective (c) of the standard seeks to ensure that buildings are of a certain height to minimise visual bulk and not adversely impact the amenity of adjoining and neighbouring land. Whilst the request states that the design is “respectful to” the amenity of the adjoining residential semi-detached dwellings, it then states that the appropriate built form to be replicated on the site is the 2-3 storey development not neighbouring but further to the east along Burnie Street.

169. Further, whilst shops are permissible in the R2 zone, the building scale, mass and form of the shops adjoining in Burnie Street are not reflective of the desired future character of the locality being historic development unlikely to be replicated. Yet the parapet of the proposal replicates these, across a greater width and in breach of the height control.

170. The site should instead contain development which is an appropriate transition from the commercial to the residential interface, but it fails to do so. The adjoining properties, being 43 and 53 Burnie Street and 1, 3 and 5 Allan Avenue, require a more appropriate height and sensitive design to protect the existing residential amenity of these properties.

171. The Council also submitted that the request fails to establish sufficient EPGs for the height breach.

172. Firstly, it relies on the existence of significant flood planning levels. Whilst flood affectation of the site may require an increase in the ground level to achieve a satisfactory outcome, the same could be said of a height compliant building. Secondly, reliance is placed on the removal of material from the site which occurred prior to the applicant purchasing it which the request says leads to a technical non-compliance. However, the LEP defines building height by reference to ground level (existing) and the definition of ground level (existing) is the existing level of the site at any point, not the (former) natural ground level, as the request references.

173. Finally, the request seeks to demonstrate that there are no adverse impacts resulting from the breach. This was disputed, particularly given the evidence during the proceedings and from residents who would be affected by it.

174. Whilst the Council did not contend that there were adverse impacts in terms of views, there is still no commentary in the request as to what the view impacts would be and why that would be acceptable. The same could be said for overshadowing.

175. More critically, however, there was significant concern raised by the Council as to visual bulk and privacy impacts. There was no evidence that the development had been designed to minimise these impacts as claimed and privacy impacts could only be addressed, in part, by screening the external stairs on the boundary of No. 43 further adding to the bulk and scale of a building in close proximity to, and directly visible from, that dwelling.

176. In this regard, 43 Burnie Street has its primary outlook to the east of the site. The evidence is that the outlook from the bedroom windows will be to the fire stair and privacy screen with a nil side setback at the front of the site. Further to the rear, the outlook would be to a blank wall setback only 1.2m. In some locations this wall extends 5.35m above the eye level of a person standing at the windows or side balcony of that property.

177. In terms of 53 Burnie Street, the cumulative effect of the evidence was that the bedroom windows, kitchen and outdoor private open space will largely have an outlook onto a blank concrete wall extending above the eaves of that dwelling only 1.2m away from the entire length of that dwelling and extending to the rear.

178. Providing planter boxes along the side boundaries did not alleviate the Council’s concerns regarding these amenity impacts.

179. Further, residents would see the whole or part of the development from the dwellings at 1, 3 and 5 Allan Avenue, with limited landscaping at the rear, but there was no mention of the impact on these properties in the request.

180. From the evidence, the impacts on all of the adjoining neighbours would be adverse and unacceptable and would fail to meet the objectives of the standard or of the R2 zone. Whilst the request addresses the historic commercial development along Burnie Street and the new development at 56 and 57 Burnie Street, it totally fails to consider the impacts on 43 and 53 Burnie Street and 1, 3 and 5 Allan Avenue, and therefore fails to demonstrate how or that the existing amenity of the residents of these directly adjacent properties will be protected.

181. Based on the evidence in its entirety, including the site inspection and resident evidence in written and oral form, the Court would not be satisfied that the breach of the height standard is in the public interest. In summary, that evidence is to the contrary: that the proposed development will have adverse and unacceptable impacts on adjoining properties, will be an undesirable built form in the R2 zone, and would be incompatible with the desired future character of the locality. It fails to protect or reflect the desirable elements of the locality and is not the type of development arising from the suite of controls in the LEP and DCP envisaged in the R2 zone. For these reasons, the cl 4.6 request should not be upheld and the development refused.

Findings on the height breach

182. I am not satisfied that the requirements of cl 4.6 of the LEP are met for the height breach sought and therefore consent cannot be granted to the application irrespective of any merit considerations.

183. This is primarily due to the inadequate cl 4.6 written request which does not demonstrate that compliance with the height standard is unreasonable or unnecessary in the circumstances, nor that there are sufficient environmental planning grounds to justify the height contravention sought.

184. My findings are largely for the same reasons as submitted by the Council. In particular, the request relies on demonstrating that the development complies with the objectives of the height standard but it fails to address, in substance or detail, the impacts of the development on the amenity of neighbouring properties, one of the three objectives to be met. This is despite adverse impacts being demonstrated in the evidence given the bulk and scale of the proposed building, the side setbacks proposed, and the orientation and outlook of adjoining residential properties, particularly the immediately adjacent neighbouring dwellings to the side at 43 and 53 Burnie Street.

185. In this regard, the request fails to document the specific relationship of the development to each of its adjacent residential neighbours, or specify the nature of potential impacts and consider these. I do not accept that the request can therefore conclude that those impacts are acceptable in ensuring that the development does not adversely impact on the amenity of neighbouring land, as the objective requires. This is also necessary to respond to the specific contentions by the Council as to the adverse impacts arising from outlook, given the visual bulk, and on privacy.

186. I also do not accept the validity of a number of the claims made in the request. For example, that the depth of the building from front to rear relates to its neighbours and the proposal therefore sits comfortably on the site having regard to the building depth relative to those neighbours. Based on the evidence, and to the contrary, what is proposed would be a dominant building form substantially larger and wider than its neighbours, being across two existing lots and with extensive infrastructure and limited landscaping, unlike what exists for the majority of adjoining residential properties including 53 Burnie Street.

187. This scale and form of development is incompatible with what is envisaged in the locality and in the R2 zone and will have adverse visual outlook impacts for residents of adjoining properties, not only 43 and 53 Burnie Street but also to the rear in Allan Avenue.

188. A further example is that, despite the request’s claim that, notwithstanding the flooding constraints of the site there is a reasonable separation distance provided from its neighbours, I find that this is not the case. The proposed setbacks are only 1.2m to side boundaries despite the dwellings adjoining those boundaries having windows in close proximity and with outlook to those side boundaries. These setbacks, the lack of landscaping able to be provided in them given their width and the need for flood infrastructure, and the need for screened fire stairs adjoining the western boundary to address privacy, all suggest the separation distances to existing dwellings are not reasonable and will not ensure amenity is maintained. Further, privacy to 43 Burnie Street is not addressed by increasing the side setback to it, but rather by proposing a privacy screen to external stairs adjoining the common boundary, which only further adds to the visual bulk impact on the outlook from that dwelling.

189. The evidence also contradicts the request’s statement that the height contravention will not have any unreasonable impacts on the western neighbour. This cannot be the case given the height and length of the side wall of the proposed development adjoining No. 43 and the fact that the windows and side balcony of that dwelling are in close proximity to the common boundary and look across the site.

190. In summary, despite the extensive written and oral expert evidence dealing with amenity impacts to neighbours, including those to the rear, the request contains minimal commentary to acknowledge and then address these impacts, despite specific impacts being required to be addressed by the objectives of the standard.

191. I accept the impacts are in part due to the proximity and orientation of the adjoining dwellings, particularly to both sides, and the resultant outlook from those dwellings across the site, and therefore that some impact may be inevitable from redeveloping the site. However, the request is still required to address those impacts and indicate how the design of the development, including the height, appropriately responds. It fails to do that and therefore to demonstrate that the requirements of objective (c) of the height standard are met. The existing adjoining residential properties are constraints which set the context to which the development, including any height breach, must respond.

192. In this regard, even accepting that there would be some adverse privacy or visual bulk impacts on adjoining residential properties from any development on the site, there is no discussion in the request as to why it is unreasonable or unnecessary to comply with the height standard particularly having regard to the specific constraints that the proximity and orientation of this adjoining residential development poses to the development of the site. Such constraints, along with the other physical constraints of the site, suggest in fact that not even the maximum permissible height may be achievable.

193. Instead, the request deals with the height as if the maximum height is an entitlement and then relies on the flooding of the site and the changes to the ground level associated with remediation as reasons to not only seek the maximum height but indeed to exceed it.

194. There is no justification to be found in the objectives of the height standard (or indeed in the controls for the R2 zone) which support a height reflecting the highest adjoining development and ignoring the interface with the lower height of the remaining adjoining development.

195. In terms of addressing objective (a) of the height standard, and contrary to statements in the request, what is proposed is not compatible in scale with the desired future character of the locality. The zoning of adjoining sites, rather than opposite, is R2 and the majority of the new buildings in the locality reflect likely future development in the R2 zone being single or 2 storey dwellings of significantly less height, bulk and scale.

196. Yet the request focuses on the existing older, higher and bulkier development in the locality as reflecting the outcome of development arising from the R2 controls. I accept the future character would include such existing development but that does not mean that it is reflective of the desired future character and it is not what the controls for the zone envisage or support.

197. As the Council argued, the request therefore incorrectly asserts that the existing built form represents the desired future character.

198. I also agree with the Council that, contrary to what is stated in the request, the lack of a desired future character statement in the DCP does not mean that what exists now reflects the desired future character given the controls that apply to development in the R2 zone, and an acknowledgment that the area is, to some extent, in transition.

199. As indicated, the request notes the site is in proximity to older style taller buildings, which are not conventional in an R2 zone, and seeks to justify the height and bulk of the proposed development primarily on this basis rather than having regard to the height, size and scale of the majority of residential development in the vicinity, which is more typical of existing and intended future development in the R2 zone.

200. In responding to the height of the development to the west, the request nevertheless claims that what is proposed is respectful to the amenity of the adjoining residential “semis”. There was no evidence of any such respect in terms of the height proposed or the design features of the development relative to those dwellings.

201. The request also states that the scale of what is proposed differs from the adjoining “semis” but fills in a “gap tooth” in the street. It claims to be inevitable that this “gap tooth” will be filled by a development of 2-3 storeys, consistent with the 3 storey neighbour to the west and two properties removed to the east. This totally ignores the height and lower form of immediately adjoining dwellings to the east or to the rear which comprise the majority of neighbouring development. Nor does it address the concept of a transition in height or built form as would typically be expected where a site has higher development on one boundary than to others.

202. I am also not satisfied that the request demonstrates, as is required by sub cl 4.6(3)(b), that sufficient environmental planning grounds, or EPGs, exist to justify contravening the height.

203. Whilst I accept one EPG may be that the site is subject to significant flood planning levels, which requires the ground floor to be raised above street level, this was a known constraint at the time of purchase. So were the modified ground levels. The height is measured from those ground levels, as they exist today, not the natural ground levels that may have existed. The building’s design has to address this constraint and the resultant height implications, which may mean not even the maximum permissible height is achievable. Further, the non-compliance is not a technical non-compliance but an actual one.

204. The request references the architect’s advice that the proposal would have “generally complied” with the maximum height control even with the former ground levels other than at the rear where the site adjoins the larger development to the west. That in itself implies a design assumption of a height that is not only to the maximum permissible but which was always intended to be exceeded using the mixed use development to the west as justification and irrespective of the lower residential development to all other boundaries.

205. I therefore do not accept the statement in the request that what is proposed is a compatible built outcome within the locality when it relies for context on ribbon commercial development to the west up to 3 storeys and eastern neighbours two properties removed, inferring this is the dominant or desired building form in an R2 zone, and with no mention made of the majority of dwellings adjoining the site which are not of a 3 storey form.

206. Further, the request does not demonstrate that the development appropriately responds to the site conditions in terms of flooding. There was no evidence that the flood affectation of adjoining properties would be acceptable, only that the areas flooded and depth of floodwater may alter, and, to reduce overland flow, substantial flood infrastructure is required. In this regard, I accept the evidence of the Council’s flood engineer that the extent of infrastructure required because of the scale, nature and extent of the proposed development is significantly more than would be required for a low density residential development on the site which would have significantly less hard stand and built form obstructing flows.

207. Instead, the design response is to assume that the height, bulk and scale outcomes on the site should be the same as if the site were not flood affected and had its original topography.

208. The proposal may comply with a number of DCP controls, such as solar access and parking. However, any compliant child care centre development would need to demonstrate such compliance. These are not EPGs which specifically justify the height breach proposed.

209. Therefore, whilst I do accept that EPGs include responding to the nature and scale of the mixed use development to the west, the site’s flooding constraints, and the change in the ground levels associated with remediation, these are not sufficient EPGs to justify contravening the height when the exact nature and location of the resultant impact of these features was not detailed in the request, and with no evidence that the development response is appropriate in the overall context of the site and the controls applying to it.

210. It cannot be the case, as stated in the request, that the proposed building elements reduce apparent bulk and are compatible in scale with the existing and surrounding buildings and streetscape. It is also insufficient, even if it were the case, that the adverse impacts to adjoining properties are minimised. The objectives require a design which ensures there are no such adverse impacts, to the extent that this outcome could be reasonably achieved on any development of an infill site which is currently vacant, but which is constrained both by its physical components and its context.

211. My finding as to whether the development is in the public interest because it meets the objectives of the standard and of the zone, is a separate test under sub cl 4.6(4)(a)(ii) and is not reliant on the adequacy of the cl 4.6 request. Nevertheless, the request also claims that the public interest would be met by addressing both the objectives of the standard and of the zone and I therefore note that there are a number of comments in the request in that regard, which I do not accept.

212. An example is the request statement that the development performs comparably to a complying proposal without adversely impacting on the amenity of adjoining land and neighbours. Yet there was no evidence in the request of such a complying development with which to compare what is proposed and its impacts.

213. Another example is that the request states that the design considered the zone objectives, but does not advise in what regard or with what outcome other than to reference detail in the original statement of environmental effects (SEE) which does not comprise part of the request. In any event, the modified application was not the development the subject of the original SEE.

214. There is also an assertion in the request that involving specialists would ensure that an acceptable standard of acoustic and visual amenity for neighbouring residents will be maintained. Whilst acoustic compliance may be achieved, there will be consequent visual impacts which were not addressed in the application but could not be considered an improvement to the existing visual amenity of neighbours, or even acceptable.

215. Irrespective of those comments on the request itself, based on the evidence, I am not separately satisfied that the objectives of the standard and the zone are met by the development proposed, including the height breach proposed.

216. I have already addressed the objectives of the standard. In terms of the zone objectives, it is the case that a number do not apply as they relate to housing or existing commercial development. Of those that do apply, I agree that the development meets the objective of enabling uses that meet the day to day needs of residents, a child care centre being such a use.

217. However, I am not satisfied that the development meets the remaining zone objectives. The application does not identify how the development recognises the desirable elements in the existing streetscape and built form that contribute to the desired future character of the area, as required, nor how the development protects the amenity of residents.

218. In summary, I am not satisfied that the amenity and character objectives of the zone are achieved and this finding, along with my findings in terms of not meeting the objectives of the standard, means that what is proposed is not in the public interest. It cannot, under cl 4.6, therefore be approved.

Dealing with the remaining contentions

219. As I have found that the development does not meet a pre-condition for the granting of consent, namely meeting the cl 4.6 test on the height contravention, it is not necessary for me to deal with the other contentions raised in the proceedings. This includes further pre-conditions to be met, namely compliance with the maximum FSR and meeting the requirements of cl 6.3 of the LEP in terms of flooding, as well as the various merit contentions that were raised.

220. However, for completeness, I will briefly deal with these matters.

FSR and the ground floor outdoor play area

221. The maximum permissible FSR for the site in the LEP is 0.5:1.

222. The Council argued that the proposed FSR was 0.64:1, a 28% variation, primarily due to including the ground floor outdoor play area (OPA) of some 450m² as GFA. Having regard to the GFA definition, the critical issue is what comprises the internal face of the external walls of the OPA and whether the walls to the OPA should be considered to be external walls.

223. The applicant argued that the Council misconstrued the GFA definition. If the OPA is excluded, on the basis of the modifications to the application, the FSR is compliant at around 1.34:1. Those modifications include providing openings in the walls surrounding the OPA and with the northern portion comprising acoustic walls open to the weather. Therefore the OPA is not enclosed and not GFA. If the Court disagreed, a cl 4.6 written request was submitted which justified the FSR breach.

224. This request contains many of the same arguments as are contained in the height cl 4.6 request. This is because three of the four objectives of the FSR standard are the same as for the height standard, including ensuring that the amenity of neighbouring properties is retained.

225. The parties referenced numerous decisions of the Court as to the definition of external walls including whether acoustic walls around a play area that exceed 1.4m and enclose that area require the area to be considered as GFA contributing to FSR. There was also extensive oral and written evidence on whether or not the OPA in question was enclosed and, if so, by what.

226. Given I do not need to address or make a finding on this pre-condition as consent cannot be granted in any event, I do not intend to do so. Nor will I comment in detail on the evidence of the competing positions of the parties.

227. However, whether or not the OPA in question constitutes GFA, it is still relevant to comment briefly on the amenity, usability and acceptability of that area given the advice in the proceedings provided by the parties.

228. In this regard, the Council argued that, even if the ground floor OPA was not GFA, the amenity of the space was poor with only some 24m² acceptable in terms of meeting Part 4 of the Child Care Guideline and the DCP requirement whereby 50% of OPAs have to be dedicated for unencumbered activity. The applicant had not demonstrated compliance with the requirements of Part 4. Only a ‘ticked’ reproduction of the Assessment Checklist at Part D of Part 4 had been provided but with no evidence of the purported compliance or adequacy of the OPA on the ground floor such as adequate access to sunlight and natural ventilation. This OPA was almost totally underneath the slab of Level 1 above, extends into the building for about 19m, and relies on a number of light boxes under that slab to provide illumination accordingly. Based on the Council’s estimate only some 5% of this OPA is uncovered.

229. Mr Burrell argued the need for the area to be artificially lit would only likely be on dark or overcast days. He accepted that the area did not have exposure to natural light but argued it would still receive daylight, albeit he had not undertaken any analysis as to whether compliance would be achieved with the objectives and controls of the DCP or of the Child Care Guideline.

230. Mr Palmer submitted that the Child Care Guideline permits space that is counted as outdoor play area to be entirely indoors, as “simulated outdoor play area”. Ms Gerathy argued that approval would only be granted by the Regulator in exceptional circumstances for simulated outdoor play area. However, Mr Palmer submitted that the Court only needs to be satisfied that there is sufficient space that will function as an outdoor play area, whether outdoor or simulated, to meet the area requirements. The Court assesses the application having regard to the Child Care Guideline and works out whether the Guideline is broadly satisfied. However, the adequacy and nature of the outdoor play space is subject to a further approval of the Regulator and at the risk of the applicant.

221. If this was the case, Mr Grech argued that any consent would need to be worded as such to reflect the fact that further approval may not be granted and the number of children allowed to occupy the centre may not be the maximum that the Court approved. However, in his view, it was not good practice to issue consent where it is not certain what is approved. In any event, the application before the Court is not for simulated outdoor play area and, if it was, the Council may have called an expert in such matters.

222. I agree with Mr Grech that it is not appropriate to leave the decision as to the acceptability of the proposed outdoor play area to the Regulator. Play areas are integral components of child care centre developments. Further, and despite Mr Palmer submissions, simulated outdoor play in lieu of actual outdoor play is only supported under Part 4 of the Child Care Guideline in exceptional circumstances, and no such circumstances were argued in the proceedings before me. Had they been I would have considered them to be an element requiring appropriate evidence. It is not at the applicant’s discretion to seek that the OPA in question instead comprise simulated play space without amending the application to reflect this. That did not occur. If there was reliance on this outcome, then the application also fails.

Flooding considerations

233. It is a pre-condition of cl 6.3 of the LEP that consent must not be granted to development on defined flood affected land unless the consent authority is satisfied that the development is compatible with the flood hazard of the land, and will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other properties. Further, that the development incorporates appropriate measures to manage risk to life from flood.

234. Clause 6.3 also contains objectives for development in flood prone areas which includes minimising the flood risk to life and property associated with the use of land, and to allow development on land that is compatible with the land’s flood hazard.

235. There was insufficient evidence for me to be satisfied that the objectives or requirements of cl 6.3 would be met.

236. Firstly, there was no designated flood evacuation location or documented procedure during flooding, nor an analysis of what is required. Secondly, the PoM contains inadequate detail, notwithstanding the updated flooding information and contention, in terms of how children and staff would be evacuated in the event of a flood, which is an agreed likely event on this site. It was instead proposed to be left to extensive conditions of consent to try and resolve the flood evacuation issues and have an adequate PoM. Finally, I was not satisfied as to the acceptability of the post development flood impacts to neighbours given the agreed changes to the affectation of their properties, in terms of the location and depth, even if not the quantum, of floodwaters.

237. Not only cl 6.3 but DCP controls indicate that a child care centre on flood prone land needs to be carefully designed to ensure a safe outcome as it is inappropriate to unnecessarily put at risk young childrens’ lives.

238. Further, the extent of the site engineering and flood mitigation works required have adverse impacts on neighbours such as by reducing the ability to provide appropriate landscaping as a buffer to adjoining neighbours and to assist in screening the bulk and scale of the development in what is a low density residential zone. I accept the evidence of the Council that the extent of these works would not normally be associated with low density residential development but are specifically required to support the proposed use.

239. In summary, in considering the objectives and intent of cl 6.3, I can only conclude that this is an inappropriate site for a child care centre which is a sensitive use. The application does not minimise unnecessary risk to children than would otherwise apply were a site not so constrained in terms of flood impacts.

240. The safety of children is a paramount consideration and the Court needs to be satisfied that safe evacuation is not only an integral part of the development, and incorporated into the proposal accordingly, including by designating a safe refuge location, but is also extensively canvassed in the PoM, which was not the case with this application.

241. It was acknowledged by all parties that the flooding of the site was its most significant constraint. Having regard to precautionary and risk management principles, it is difficult to accept that one would contemplate placing a large child care centre on the site and then engineer the site to try and manage flood water and the associated risks, or leave resolution of this issue to a future updated PoM and consent conditions.

242. Therefore, I consider that, from a flooding perspective alone, the site is manifestly unsuitable for a child care centre even if the development standards were met and the scale reduced.

Brief comment on remaining contentions

243. Given the numerous merit findings already outlined in responding to the height breach and flooding issues, I make only the following final comment on the merits of the application.

244. Even with the reduced number of children, staff, parking bays, and how many children that could play outside at any one time as a result of the updated flood assessment, the applicant did not seek to modify the application in an attempt to reduce the adverse impacts of the development by reviewing or revisiting the bulk and scale of the development or the height and extent of the acoustic barriers required.

245. Whilst, even with these changes, the application may still have been unacceptable, it would have reduced the potential impacts. What it reinforces is that the site is particularly unsuitable for the nature, form and scale of development proposed, being a sensitive use (a child care centre) on a particularly constrained infill site; those constraints including its flooding affectation and the number, orientation and scale of neighbouring residential properties.

246. Further, whilst I do not intend to comment in any detail as to the applicability of the DCP controls, it is the case that the development should comply or address at least the child care centre controls. It was not evident that this satisfactorily occurred. The location and design of the centre has not had a key focus on ensuring the safety and well-being of children nor in achieving high standards of amenity for the surrounding locality particularly adjoining residential uses. It will not have minimal impact on the surrounding locality. Nor does it respond positively to the context and setting.

247. Further, the evidence indicated that careful consideration had not been given to choosing a suitable location for a child care centre given that not all sites are appropriate for this form of development as the DCP notes.

248. The DCP also requires that child care centres are required to comply with the relevant LEP height and FSR controls which apply to a site to ensure an appropriate built form outcome. It is for these reasons that the DCP states that, for new child care centres in the R2 zone, the building design is to be similar to a dwelling house in terms of built form, scale, massing, roof design and articulation, and preferably be single storey. It could not be said that these requirements are achieved, or even addressed, in the development proposed.

249. I also agree with the Council that cl 6.13 of the LEP does not operate so as to transpose the use of business premises in the R2 zone with child care centres which are specifically defined.

250. In any event, the clause does not assist the applicant requiring that any such premises also not adversely affect the amenity of the surrounding locality.

251. In summary, on the basis of the expert evidence on all of the contended issues, I find that there are numerous grounds for refusal of the application. I have however, only addressed in detail the failure to meet the test under cl 4.6 for the agreed height breach. This means that I cannot consent to the application and refusal is therefore required.

Orders

252. The orders of the Court:

1. Leave is granted to the applicant to rely upon amended plans.

2. The applicant is to pay the costs of the respondent thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The clause 4.6 request to exceed the height standard is not upheld.

4. The appeal is dismissed.

5. Development application DA/537/2017 for a child care centre at 45-51 Burnie Street, Clovelly is refused.

6. The exhibits are returned except Exhibits A, U and 1.

__________________

Jenny Smithson

Commissioner of the Court

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Decision last updated: 11 February 2020