Commitment Pty Ltd v Georges River Council

Case •

[2021] NSWLEC 1428

•

27 July 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Commitment Pty Ltd v Georges River Council [2021] NSWLEC 1428
Hearing dates: 26 and 27 April 2021
Date of orders: 27 July 2021
Decision date: 27 July 2021
Jurisdiction:Class 1
Before: Chilcott C
Decision:

The Court orders:

(1) The appeal is dismissed;

(2) Development Application DA2020/0050 seeking consent for demolition of existing structures and construction of a 60 place child care centre at 36 Chamberlain Street, Narwee, is determined by way of refusal;

(3) The exhibits are returned, with the exception of Exhibits C, D and 1.

Catchwords:

DEVELOPMENT APPLICATION – child care centre – whether proposed passing bay on access driveway is acceptable – whether streetscape of Proposed Development is compatible with local area – Proposed Development unable to satisfy considerations in Childcare Planning Guideline

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.15, s 8.7

Environmental Planning and Assessment Regulation 2000, cll 49(1), 77

Hurstville Local Environmental Plan 2012

Land and Environment Court Act 1979

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 22, 23, 25, 26

Cases Cited:

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

Texts Cited:

Australian Standard 2890.1:2004

Draft Georges River Local Environmental Plan 2020

Draft Georges River Local Environmental Plan 2021

Hurstville Development Control Plan 1 2012

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

NSW Department of Planning, Childcare Planning Guideline 2017

Category:Principal judgment
Parties: Commitment Pty Ltd (Applicant)
Georges River Council (Respondent)
Representation:

Counsel:
S Berveling (Applicant)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Bartier Perry (Applicant)
HWL Ebsworth (Respondent)
File Number(s): 2020/222588
Publication restriction: No

Judgment

  1. COMMISSIONER: Commitment Pty Ltd (the Applicant) has appealed the refusal by Georges River Council of its development application DA2020/0050, made with owners’ consent, seeking approval for demolition of existing structures and construction of a 60 place child care centre with basement car parking (the Proposed Development) at 36 Chamberlain Street, Narwee (the Subject Site).

  2. The Applicant’s appeal comes to the Court pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), and they are determined pursuant to the provisions of s 4.16 of the EP&A Act.

  3. On 24 March 2021 the Applicant was granted leave to rely on amended plans on the basis of which the Proposed Development now includes:

  1. demolition of existing structures on the Subject Site;

  2. removal of vegetation on the Subject Site;

  3. construction of a 60 place child care centre with:

  1. 52 places for children aged 3-6 years old;

  2. eight (8) places for children aged 0-2 years old;

  3. three (3) internal playrooms; and

  4. three (3) outdoor play areas;

  1. basement car parking for nine (9) vehicles, with access from Chamberlain Street and with an upper passing bay located in part on Council land between the vehicle cross over and the boundary of the Subject Site;

  2. hours of operation between 7am and 6pm.

  1. The Subject Site is zoned R2 Low Density Residential pursuant to the provisions of cl 2.3 of Hurstville Local Environment Plan 2012 (HLEP) (see below at [18]) and a child care centre is a permissible land use in that zone.

  2. The location of the Subject Site (outlined in red) within its local setting on Chamberlain Street, and near the intersection with Podmore Avenue, is illustrated in the following figure taken from the NSW Government’s SIX maps website.

  1. The Subject Site is located adjacent to 32-34 Chamberlain Street zoned SP2 Infrastructure and upon which is located an existing a child care facility.

  2. The Respondent advised that:

  1. under the provisions of a planning proposal prepared by Georges River Council for the proposed Georges River Local Environmental Plan 2020, which was not made at the time of hearing the current appeal, that adjacent site was proposed to be re-zoned R2 Low Density Residential; and

  2. Georges River Council had also prepared a further planning proposal for a draft Georges River Local Environmental Plan 2021 under which the Subject Site and the site of the adjacent child care facility were proposed to be re-zoned R4 High Density Residential. This plan was also not made at the time of hearing the current appeal.

  1. The Applicant’s development application had been notified between 26 February and 16 March 2020, consistent with the provisions of cl 77(1) of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation) and Hurstville Development Control Plan 2012 No 1 (HDCP). Three submissions had been received in response to that notification.

  2. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, a site view was undertaken prior to the commencement of the hearing and three objectors provided oral submissions to the Court during the site view, as follows:

  1. Ms Lianne Essex, a neighbour to the Subject Site;

  2. Ms Helen McColm, also a neighbour to the Subject Site; and

  3. Mr Bruce Mitchell, a resident of Chamberlain Street.

  1. Matters raised in the oral submissions of objectors included:

  1. the bulk and scale of the Proposed Development;

  2. potential acoustic and visual privacy impacts of the Proposed Development;

  3. the adequacy of proposed acoustic treatments to mitigate potential noise impacts;

  4. potential excavation impacts;

  5. potential stormwater impacts, including the adequacy of proposed rainwater tanks;

  6. the Applicant’s proposed parking arrangements;

  7. safety in relation to potential fire risks and traffic movements.

  1. At the commencement of the hearing the Applicant also sought leave to amend its development application and to rely on further drainage and stormwater plans that were tendered into evidence as Exhibits E and F, and leave was granted without objection.

  2. The Parties also advised that, based on the Applicant’s amended plans and other documents upon which it now relies, as well as the agreements of the Parties’ experts within their joint expert reports, the following matters that had been in contention had been resolved:

  1. matters concerning potential acoustic impacts, other than in relation to the outdoor play area numbers, and which the Respondent said could be mitigated through the imposition of proposed conditions requiring:

  1. that the outdoor area should have no more than 17 children playing at any one time; and

  2. that the windows along the northern side of the child care centre building should remain closed;

  1. matters pertaining to the provision of car parking spaces, in relation to which the Respondent’s expert traffic engineer had conceded that the Applicant’s shortfall of one car space compared to that required under the provisions of HDCP (see below at [27(1)]) was acceptable given the availability of car parking on the street in the vicinity of the Proposed Development;

  2. certain matters related to stormwater management.

  1. The Respondent said that, as a consequence of the Applicant’s amended plans, the principal contentions remaining in the appeal concerned the following:

  1. the acceptability of the streetscape created by the Proposed Development, and in particular;

  1. the acceptability of the Applicant’s proposed upper car passing bay located outside the front boundary of the Subject Site; and

  2. the compatibility of the streetscape of the Proposed Development with the character of the local area, particularly in relation to the front setback;

  1. the acceptability of the bulk and scale of the Proposed Development’s built form, and in particular:

  1. whether the size of the Applicant’s rear outdoor play area was excessive;

  2. whether the bulk and scale of the proposed child care centre building could be reduced through provision of a smaller rear outdoor play area;

  3. whether the three storey presentation of the child care centre building at its rear is acceptable;

  1. the adequacy of the outdoor play areas within the Proposed Development, and in particular the calculations of the area of outdoor play space and the lack of storage provided within that space;

  2. the adequacy of the interior of the Proposed Development, including the provision of an adequate area of unencumbered indoor play space.

  1. The Court was assisted in its consideration of these matters by the joint reports and oral testimony of the following experts:

  1. the traffic engineering experts, Mr Tim Rogers, for the Applicant, and Mr Ken Hollyoak, for the Respondent;

  2. the expert acousticians, Mr Najah Ishac, for the Applicant, and Mr Richard Haydon, for the Respondent;

  3. the expert town planners, Mr Lindsay Fletcher, for the Applicant, and Ms Heather Warton, for the Respondent;

  4. the early education expert, Ms Wendy Shepherd, for the Respondent;

  5. the stormwater engineering experts, Mr Chris Morris, for the Applicant, and Ms Priyani Jayaweera, for the Respondent.

Statutory context

Environmental Planning and Assessment Act 1979

  1. Section 4.15(1)(a) requires:

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

  1. Section 4.15(3A) of the EP&A Act provides as follows:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c)  may consider those provisions only in connection with the assessment of that development application.

Environmental Planning and Assessment Regulation 2000

  1. The following provisions of the the EP&A Regulation are of relevance in this appeal:

  1. clause 49(1), which requires that, inter alia, a development application must be made by an owner of the land that is the subject of the application or with the consent of the owner of the land;

  2. clause 77(1), which concerns notification of development applications as follows:

(1) As soon as practicable after a development application is lodged with the consent authority, the consent authority must -

(a) publish notice of the application on the consent authority’s website, and

(b) give notice of the application to -

(i) the public authorities (other than relevant concurrence authorities or approval bodies) that, in the opinion of the consent authority, may have an interest in the determination of the application, and

(ii) in the case of a development application other than designated development - the persons that, in the opinion of the consent authority, own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development).

Hurstville Local Environmental Plan 2012

  1. The Subject Site is zoned R2 Low Density Residential under the provisions of cl 2.3 of HLEP, the objectives of which are:

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 encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area

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

To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.

To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity.

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

  1. The Proposed Development is subject to the provisions of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the Child Care SEPP), which aims to facilitate the effective delivery of educational establishments and early education and care facilities across the State of NSW.

  2. Clause 8(1) of the Child Care SEPP provides that:

Subject to subclause (2), if there is an inconsistency between this Policy and another environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

  1. The following further provisions of the Child Care SEPP are of particular relevance in this appeal:

  1. Clause 22, which provides that the consent authority must not grant development consent to development to which this clause applies except with the concurrence of the Regulatory Authority, and specifically:

  1. Clause 22(1) which requires that:

(1)  This clause applies to development for the purpose of a centre-based child care facility if—

(a) the floor area of the building or place does not comply with regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, or

(b)  the outdoor space requirements for the building or place do not comply with regulation 108 (outdoor unencumbered space requirements) of those Regulations.

(2)  The consent authority must not grant development consent to development to which this clause applies except with the concurrence of the Regulatory Authority.

  1. Clause 23, concerning centre-based child care facilities, the definition of which confirms the Proposed Development is such a facility, provides matters for consideration by consent authorities as follows:

Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development.

  1. Clause 25, which provides non-discretionary development standards for a centre-based child care facility, as follows:

(1) The object of this clause is to identify development standards for particular matters relating to a centre-based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters.

(2) The following are non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of a centre-based child care facility—

(a) location—the development may be located at any distance from an existing or proposed early education and care facility,

(b) indoor or outdoor space

(i) for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies—the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or

(ii) for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies—the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause,

(c) site area and site dimensions - the development may be located on a site of any size and have any length of street frontage or any allotment depth,

(d) colour of building materials or shade structures - the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area.

(3) To remove doubt, this clause does not prevent a consent authority from—

(a) refusing a development application in relation to a matter not specified in subclause (2), or

(b) granting development consent even though any standard specified in subclause (2) is not complied with.

  1. Clause 26, which concerns the applicability of the provisions of development control plans in relation to centre-based child care facilities, and which provides as follows:

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

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

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

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

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

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

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

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

Child Care Planning Guideline

  1. The Child Care Planning Guideline (the Guideline) states that:

“State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the SEPP) determines that a consent authority must take into consideration this Guideline when assessing a development application (DA) for a centre-based child care facility (‘child care facility’).

It also determines this Guideline will take precedence over a Development Control Plan (DCP), with some exceptions, where the two overlap in relation to a child care facility.”

  1. The objectives of the Guideline are to:

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

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

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

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

  1. Section 2 of the Guideline provides design quality principles for centre-based child care facilities in relation to context, built form, adaptive learning spaces, sustainability, landscape, amenity and safety. Principles 1 and 2 of the Guideline, which concern context and built form were of particular relevance in this appeal. They provide as follows:

  1. Principle 1 – Context

“Good design responds and contributes to its context, including the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions.

Well-designed child care facilities respond to and enhance the qualities and identity of the area including adjacent sites, streetscapes and neighbourhood.

Well-designed child care facilities take advantage of its context by optimising nearby transport, public facilities and centres, respecting local heritage, and being responsive to the demographic, cultural and socio-economic makeup of the facility users and surrounding communities”

  1. Principle 2 – Built Form

“Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the surrounding area.

Good design achieves an appropriate built form for a site and the building’s purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Good design also uses a variety of materials, colours and textures.

Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

Contemporary facility design can be distinctive and unique to support innovative approaches to teaching and learning, while still achieving a visual appearance that is aesthetically pleasing, complements the surrounding areas, and contributes positively to the public realm.”

  1. Section 3 of the Guideline identifies matters for consideration which support the design principles and must be considered by the consent authority when assessing a development application for a child care facility, and these include the following matters that are of relevance in this appeal:

  1. Section 3.2, which concerns local character, streetscape and the public domain interface, and which includes matters for consideration including:

  1. Consideration C5, which has the following objective, and detailed considerations:

“Objective: To ensure that the child care facility is compatible with the local character and surrounding streetscape.

C5

The proposed development should:

contribute to the local area by being designed in character with the locality and existing streetscape;

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

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

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

use landscaping to positively contribute to the streetscape and neighbouring amenity

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

  1. Considerations 9 and 10, which have the following objective and detailed considerations:

“Objective: To ensure that front fences and retaining walls respond to and complement the context and character of the area and do not dominate the public domain.

C9

Front fences and walls within the front setback should be constructed of visually permeable materials and treatments. Where the site is listed as a heritage item, adjacent to a heritage item or within a conservation area front fencing should be designed in accordance with local heritage provisions.

C10

High solid acoustic fencing may be used when shielding the facility from noise on classified roads. The walls should be setback from the property boundary with screen landscaping of a similar height between the wall and the boundary”.

  1. Section 3.3, which concerns building orientation, envelope and design, and which includes matters for consideration including:

  1. Consideration C15, which has the following objective, and detailed considerations:

“Objective: To ensure that the built form, articulation and scale of development relates to its context and buildings are well designed to contribute to an area's character.

C15

The built form of the development should contribute to the character of the local area, including how it:

respects and responds to its physical context such as adjacent built form, neighbourhood character, streetscape quality and heritage

contributes to the identity of the place • retains and reinforces existing built form and vegetation where significant

considers heritage within the local neighbourhood including identified heritage items and conservation areas

responds to its natural environment including local landscape setting and climate

contributes to the identity of place”

  1. Section 3.5, which concerns visual and acoustic privacy includes matters for consideration including:

  1. Consideration C21, which has the following objective and detailed considerations:

“Objective: To protect the privacy and security of children attending the facility.

C21

Minimise direct overlooking of indoor rooms and outdoor play spaces from public areas through:

appropriate site and building layout

suitably locating pathways, windows and doors

permanent screening and landscape design.”

Hurstville Development Control Plan No 1

  1. Development on the Subject Site is subject to the provisions of HDCP which provides guidance and controls for the design and assessment of proposed development and applies to all land to which the HLEP applies, excluding land identified as the Hurstville City Centre.

  2. Section 3 of HDCP provides general planning considerations to guide development on land to which HDCP applies, and includes:

  1. Section 3.1 concerning vehicle access parking and manoeuvring, that includes the following performance criteria and design solution of relevance in this appeal:

“PC1 - Car parking and service vehicle areas are:

a. sufficient, safe and convenient and meets user requirements including pedestrians, cyclists and vehicles.

b. safe, easily accessible, does not obstruct the passage of vehicles or create traffic conflicts, impact pedestrians or cyclists and does not result in detrimental effects to adjoining or nearby properties.

c. provided according to projected needs and provide pleasant areas in which to park.

Design solution – layout, circulation, access and egress

DS1.5 - Refer to AS 2890.1 2004 and AS2890.2 Part 2 for the design and layout of parking facilities.”

Australian Standard 2890 Design and layout of parking facilities

  1. Australian Standard 2890.1:2004 (AS2890) provides standards for off-street car parking facilities, and includes:

  1. Section 3 concerns access facilities to off-street parking areas and queuing areas, and in which;

  1. Section 3.1.2 provides criteria for categorising access facilities;

  2. Table 3.1 applies the criteria in section 3.1.2 and facilitates the identification of access facility categories, including confirmation that facilities providing access to less than 25 car spaces on a local road are Category 1 facilities;

  3. Category 1 facilities should have an access entry width of 3.0m to 5.5m;

  4. Section 3.2.2 provides width requirements at low volume (Category 1) access driveways and connecting roadways, which provides:

“Where the circulation roadway leading from a category 1 access driveway is 30m or longer, or site distance from one end to the other is restricted, and the frontage road is an arterial or sub-arterial road, with the access driveway and the circulation roadway for at least the first 6 m from the property boundary shall be a minimum 5.5m wide.

In other cases subject to consideration of traffic volumes on a case by case basis, lesser with down to a minimum of 3m at a domestic property may be provided.

As a guide, 30 or more movements in a peak are (in and out combined) would usually require provision for two vehicles to pass on the driveway, i.e. a minimum width of 5.5 m. On long driveways, passing opportunities should be provided at every 30m.

Reversing movements to public roads shall be prohibited where ever possible.”

  1. Section 3.2.3 concerns access driveway locations, and provides:

“To keep conflicts between frontage road traffic and carpark traffic to an acceptable minimum, the following requirements and recommendations apply:

(a) Driveway categories 1 and 2 - At unsignalised intersections of sub-arterial, collector or local streets with each other or with an arterial road, access driveways in categories 1 and 2 (see Table 3.1) shall not be located in the sections of curb shown by heavy lines in Figure 3.1. This requirement shall not apply to accesses to domestic driveways in the curb section opposite the entering road at any intersection including signalised intersections. Furthermore, it shall not apply to any access driveway serving a property which would otherwise be denied access due to the physical impossibility of meeting the requirement.”

  1. Figure 3.1 which illustrates prohibited locations of access driveways, and which is reproduced below:

  1. Section 1.3 which provides definitions to assist in the interpretation of AS2890.1:2004, including the following that are of relevance in this appeal:

  1. Access driveway - a roadway extending from the edge of the frontage roadway to the property boundary to connect with the first ramp, circulation roadway, parking aisle or domestic driveway encountered, and carrying one- or two-way traffic (see Figure 2.1);

  2. Circulation roadway - a roadway within an off-street car park which is used solely for circulation and to gain access to parking aisles, and on which there is no parking (see Figure 2.1);

  3. Control point - a point at or near the entrance to or exit from a car park at which the flow of traffic is retarded the existence of a boom barrier, with or without ticket or cashier operation, or the location of the first of any spaces on a parking aisle at which parking or unparking may cause traffic flow to be retarded;

  4. Queuing area - the area a circulation roadway between the property boundary and the vehicle control point, available for queueing of vehicles;

  5. Ramp - a circulation roadway which connects an access driveway to an off-street car park on a substantially different level, or which connects two levels in a multi-level car park (see Figure 2.1).

Contentions

  1. The remaining contentions in the appeal were noted above (at [13]), and require resolution of the following questions:

  1. in relation to streetscape:

  1. is the Applicant’s proposed upper car passing bay, located in part on Council land outside the front boundary of the Subject Site, acceptable?

  2. is the streetscape of the Proposed Development compatible with the character of the local area, particularly in relation to the front setback?

  1. is the bulk and scale, including the built form, of the Proposed Development’s acceptable, and in particular:

  1. is the size of the Applicant’s rear outdoor play area acceptable?

  2. should the bulk and scale of the proposed child care building be reduced through provision of a smaller outdoor play area?

  3. is the three storey rear presentation of the child care centre building acceptable?

  1. are the layouts of the Applicant’s proposed outdoor and indoor play spaces acceptable, and in particular:

  1. are the outdoor play areas acceptable, and in particular the calculations of the area of outdoor play space and the lack of storage provided within that space?

  2. is the interior of the Proposed Development acceptable, including the provision of an adequate area of unencumbered indoor play space?

Is the streetscape of the Proposed Development acceptable?

  1. As identified above (at 29(1)[]) the acceptability or otherwise of the Proposed Development’s streetscape requires consideration of two specific questions. These are considered below, in turn.

Is the Applicant’s proposed upper car passing bay, located in part on Council land and outside the front boundary of the Subject Site, acceptable?

  1. The Court’s consideration of this question was assisted by the evidence of the Parties, expert traffic engineers, Mr Hollyoak and Mr Rogers.

  2. As noted above (at [27(1)]), Part 3.1 of HDCP provides guidance in relation to vehicle access parking and manoeuvring. It includes design solution DS1.5 which directs proponents to AS2890 (see above at [28]) for controls in relation to the design and layout of parking facilities.

  3. AS2890 provides within its Section 3.2.2 (see above at [28(1)(d)]), standards for the design of Category 1 access driveways, which are applicable to the design of the access driveway proposed in this appeal.

  4. Within their joint report tendered as evidence at the hearing, the Parties’ expert traffic engineers had agreed that:

  1. the frequency of vehicle movements into and out of the off-street car park within the Proposed Development would be greater than 30 vehicles per hour at peak times;

  2. notwithstanding that the likely probability of two cars travelling in opposite directions meeting on the access driveway would be low, and on average less than 1%, this would still result in two cars meeting on the access driveway once every two days;

  3. given the likelihood of two cars meeting on the access driveway the Proposed Development should provide a capacity for vehicles to pass on the driveway.

  1. The Applicant has proposed that its access driveway should include two passing bays:

  1. one located at the top of the access driveway ramp leading to the rear basement car parking area; and

  2. one located at the bottom of the access driveway.

  1. The Applicant’s expert, Mr Rogers said that:

  1. because Chamberlain Street is a local road, and not an arterial or sub-arterial road, a single lane driveway with one passing opportunity would be appropriate;

  2. notwithstanding his opinion contained in his joint report with Mr Hollyoak that only a single passing bay was required at the bottom of the access ramp, he said that the Applicant’s proposed upper passing bay, located partly on the Subject Site and partly within Council’s road reserve, was acceptable, although it would result in the loss of one on-street car space;

  3. the location of the access driveway within the intersection of Chamberlain Street and Podmore Avenue (see location map above (at [5]), was acceptable as, in his opinion:

  1. the traffic flows through the intersection during the weekday morning and afternoon peak periods, estimated to be between 75 and 95 vehicles per hour, were in his description “low”; and

  2. in the exceptional circumstance where a car may queue on Chamberlain Street to enter the Subject Site, it would not result in any significant impact on traffic flow through the intersection;

  1. design of the proposed passing bay and access driveway, including its location within the intersection of Chamberlain Street and Podmore Avenue would be safe with sight lines proposed, and including certain adjustments to the splay of the driveway as proposed by Mr Hollyoak.

  1. However, Mr Hollyoak confirmed that, in his opinion:

  1. consistent with the traffic expert’s agreement in their joint report that the Proposed Development would generate more than 30 trips per hour into and out of the Subject Site, a passing bay at the top of the access driveway was required to facilitate access to the car park and to mitigate potential queuing of vehicles seeking to enter or leave the Subject Site.

  2. while he would accept an upper passing bay as a basis of providing a queuing facility, and as a compromise to requiring an access driveway of 5.5m width along its whole length, the Applicant’s proposed upper passing bay should be located wholly within the boundary of the Subject Site, and should not occupy a position within Council’s road reserve;

  3. it was necessary for the upper passing bay to be located wholly within the Subject Site so that there would be no queuing of vehicles beyond the Subject Site and no queuing within the intersection of Chamberlain Street and Podmore Avenue;

  4. the location of the access driveway across from the intersection of Chamberlain Street and Podmore Avenue was a prohibited location for such a driveway under the provisions of Section 3.2.3 of AS2980 (see above at [28(1)(e)]), which states that:

  1. category 1 driveways conforming to certain circumstances (that are satisfied by the Subject Site) shall not be located in the sections of curb shown by heavy lines in Figure 3.1 (see above at [28(1)(f)]);

  2. the purpose of the provision is to keep conflicts between frontage road traffic and carpark traffic to an acceptable minimum; and

  3. the requirement shall not apply to:

  1. accesses to domestic driveways in the curb section opposite the entering road at any intersection including signalised intersections; and

  2. any access driveway serving a property which would otherwise be denied access due to the physical impossibility of meeting the requirement.

  1. In response to Mr Hollyoak’s evidence, Mr Rogers said that:

  1. while it was his opinion that an upper passing bay is not required, he agreed that under the provisions of AS2890 this was a matter of interpretation dependent upon the particular circumstances of the case;

  2. if the proposed upper passing bay were to be located wholly within the Subject Site then the access driveway might as well be designed as a providing passing capacity along its entire length so as to be a double lane driveway extending from the Subject Site boundary to basement car park area;

  3. while it would be possible to design a double lane access driveway into the Proposed Development, such a design would have broader implications for the Proposed Development including in relation to the number of children it could accommodate.

  1. In their closing submissions, the Parties agreed that, notwithstanding the proposed location of the upper passing bay within the Chamberlain Street road reserve, and outside the boundary of the Subject Site, the Court, standing in the shoes of Council as the roads authority, had power under s 39(2) of the LEC Act to grant consent for the access driveway, as proposed, notwithstanding the Respondent’s opposition.

  2. I have given consideration to the evidence of the expert traffic engineers and the submissions of the Parties, and I have concluded that:

  1. I agree with the evidence of Mr Hollyoak that the Applicant’s proposed location for its access driveway is within an area that is a prohibited location for such a driveway, pursuant to the provisions of Section 3.2.3 of AS2890, given that:

  1. it is located within an area identified within Figure 3.1 of AS2890 as a prohibited location for such a driveway;

  2. it does not provide access to a domestic driveway, and so is not exempt from the provisions of Section 3.2.3 of AS2890, and:

  1. the proposed driveway, in my assessment, does not serve a property which would otherwise be denied access due to the physical impossibility of meeting the requirements of Section 3.2.3;

  2. the Applicant has chosen to locate its proposed access driveway within the intersection of Chamberlain Street and Podmore Avenue; and

  3. no evidence has been provided to confirm that the driveway location could not be designed and located at another point along the frontage of the Subject Site and outside the prohibited area as illustrated within Figure 3.1;

  1. I further accept and agree with the evidence of Mr Hollyoak, and do not accept the evidence of Mr Rogers, in relation to the need for an upper passing bay on the access driveway given the particular circumstances of this case. In my assessment, the upper passing bay is required to avoid potential queuing of vehicles within the intersection of Chamberlain Street with Podmore Avenue;

  2. I agree with the evidence of Mr Hollyoak that it would be preferable to locate the passing bay within the boundary of the Subject Site to further mitigate the risk of queuing of cars disrupting traffic within Chamberlain Street;

  1. I note the evidence of Mr Rogers that:

  1. it would be possible to design the upper passing bay to be located within the Subject Site;

  2. if the upper passing bay were designed to be located within the Subject Site it would be preferable to design the access driveway to be a two lane driveway from top to bottom;

  3. if the upper passing bay were to be designed to be located within the Subject Site it would require significant re-design of the Proposed Development that is likely to require reconsideration of the numbers of children that might be accommodated by the child care centre.

  1. Notwithstanding my conclusions above (at [40]) concerning the non-compliances with Sections 3.2.2 and 3.2.3 of AS2890, the provisions of s 4.15(3A)(b) of the EP&A Act require that, notwithstanding its non-compliance, the Court should be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of Sections 3.2.2 and 3.2.3 of AS2890.

  2. The application of AS2890 to the Proposed Development is required under the provisions of Section 3.1 of HDCP concerning vehicle access parking and manoeuvring. The relevant objectives of that part of HDCP are provided within the performance criteria PC1 (see above at [27(1)]). In relation these criteria, it is my assessment that, consistent with the evidence of Mr Hollyoak, which I adopt,:

  1. the Applicant’s design of its proposed upper passing bay is not sufficient, safe and convenient and it does not meet user requirements including pedestrians, cyclists and vehicles, because the proposed location:

  1. is likely to give rise to queuing of vehicles in the road reserve of Chamberlain Street;

  2. that queuing may disrupt the movement of pedestrians, cyclists and vehicles on Chamberlain Street and within its intersection with Podmore Avenue;

  1. is likely to obstruct the passage of vehicles, may create traffic conflicts, impact pedestrians or cyclists and may, as a consequence, result in detrimental effects to adjoining or nearby properties.

  2. is likely to reduce the amenity of the street by making parking more difficult, noting, as observed by Mr Rogers, that it will result in the loss of an on-street parking space on Chamberlain Street.

  1. Based on my considerations above (at [42]) I conclude that:

  1. the Applicant’s proposed upper passing bay does not achieve the objectives of the standard with which it is not compliant and so does not merit the application of flexibility as provided under s 4.15(3A)(b) of the EP&A Act;

  2. the Applicant’s Proposed Development should not be approved as its proposed upper passing bay is not an acceptable design because:

  1. it is located within a prohibited position pursuant to the provisions of AS2890 cl 3.2.3;

  2. its proposed location, in part, within Council’s road reserve on Chamberlain Street is not preferred, and as noted above by Mr Rogers (at [40(4)(a)]) could be located within the Subject Site, if the Applicant elected to do so, albeit that this would require amendment to the design of the Proposed Development; and

  3. it does not achieve the objectives of the relevant standard, those being the objectives represented by the performance criteria in Section 3.1 of HDCP, which gives effect to the application of AS2890 to the Proposed Development.

Is the streetscape of the Proposed Development compatible of with the character of the local area, particularly in relation to the front setback??

  1. Clause 23 of the Child Care SEPP (see above at [21(2)]) provides that before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Guideline, in relation to the Proposed Development. The Guideline also notes that its provisions will generally take precedence over those of an otherwise applicable development control plan.

  2. As noted above (at [24]), Section 2 of the Guideline provides design quality principles for centre-based child care facilities in relation to, inter alia, context (Principle 1).

  3. Principle 1 of the Guideline notes that well-designed child care facilities respond to and enhance the qualities and identity of the area including adjacent sites, streetscapes and neighbourhood.

  4. Additionally, Section 3 of the Guideline provides matters for consideration by a consent authority, or the Court on appeal, when assessing a development for a child care facility. These include the provisions of:

  1. section 3.2, which concerns local character, streetscape and the public domain interface, and include:

  1. consideration C5 which seeks to ensure that a child care facility is compatible with the local character and surrounding streetscape; and

  2. consideration C9 which seeks to ensure that front fences and retaining walls respond to and complement the context and character of the area and do not dominate the public domain;

  1. section 3.5, which concerns visual and acoustic privacy, and includes consideration C21 which seeks to protect the privacy and security of children attending the facility.

  1. The details of consideration C5 are provided above (at [25(1)(a)]).

  2. The Respondent has contended that that streetscape of the Proposed Development is inconsistent with the provisions of Section 3.2 of the Guideline as it does not respond to and enhance the qualities and identity of the area including in relation to its streetscape, and does not comply with the matters included in consideration C5.

  3. The front setback of the Proposed Development includes:

  1. an outdoor play area (Outdoor Play Area 1);

  2. a fence along the frontage to Chamberlain Street and the south eastern side of the outdoor play area to 1.8m, the majority of which would utilise pool fence style materials;

  3. a fence on the north western side of the outdoor play area up to 1.8m height, including a minimum 1.5m high perspex acoustic barrier;

  4. hedge plantings along the inside of the front fence of a minimum height of 1.5m and up to 1.8m.

  1. The Parties expert planners (see above (at [14(3)]) and early education expert (see above at [14(4)]), provided the following evidence within the joint expert report, tendered as evidence at the hearing, and in their oral evidence:

  1. Ms Warton, said that, in her opinion:

  1. she was not concerned, from a planning perspective, of the location of an outdoor play area within the front setback of the Proposed Development;

  2. notwithstanding her opinion above (at [(a)]), the streetscape of the Proposed Development was inconsistent with the provisions of considerations C5 and C9 of Section 3.2 of the Guideline because:

  1. the streetscape of the local area is characterised by low fences and gardens within front setbacks;

  2. the proposed front fence with acoustic barrier along some 6m of the north western boundary of the front setback, and adjacent to the driveway, while required to mitigate potential acoustic impacts, would be visually intrusive in the streetscape;

  3. the proposed 1.8m high front fence, consisting of pool fencing on a brick base, with hedge planting inside the Subject Site, was inconsistent with the streetscape of the local area (see above at [(i)]);

  4. as a consequence of her view above (at [(i)], [(ii)] and [(iii)]), the Applicant’s proposed streetscape did not contribute to the local area by being designed in character with the locality and existing streetscape, did not use landscaping to positively contribute to the streetscape and neighbouring amenity, as required under consideration C5, and did not ensure that the design of the front fence responded to and complement the context and character of the area so as not to dominate the public domain, as required under consideration C9;

  5. if the Proposed Development had been designed to cater for a smaller number of children within the facility there would have been no need for the Applicant to rely upon the front setback for an outdoor play area and this would have removed the need for high screened fencing and a shade sail on the streetscape, and would have facilitated the inclusion of low fencing and a front garden which would have been consistent with the streetscape character of the local area;

  1. Ms Shepherd said that in her opinion a transparent barrier, as proposed by the Applicant for its acoustic barrier, would not provide a suitable screen to be located adjacent to the Applicant’s proposed front outdoor play area as this area would be used by children between aged 0 and 2 years. Ms Shepherd said that a visually impermeable barrier was required in this location for privacy purposes;

  2. Mr Fletcher said that, in his opinion:

  1. it was appropriate to locate an outdoor play area within the front setback of the Proposed Development as there were examples of such configurations in other child care centres within the local area, for which he provided examples;

  2. the Applicant’s proposed acoustic barrier along the north western boundary of the front setback could be frosted to provide for privacy to the outdoor play area while retaining its acoustic functionality;

  3. there was little consistency in the streetscape presentation of lots on Chamberlain Street;

  4. notwithstanding this, the streetscape of the Proposed Development was compatible with the character of the local area, particularly given its position adjacent to the child care centre located immediately adjacent to the Subject Site, which included a 1.8m pool fence along its frontage;

  5. if required, the Applicant could be required through the imposition of a condition of consent to maintain the front setback hedge plantings at a height of 2m;

  1. In closing, the Applicant submitted that the streetscape presentation of the proposed development was acceptable and it was compatible with the streetscape of the local area. It noted the decision of Roseth SC in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture), in relation to how compatibility of a development with its local area should be considered, and in which the former Senior Commissioner had observed at [22] that:

“There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.”

  1. The former Senior Commissioner also observed within Project Venture (at 26]) that:

“For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment.” 

  1. In response, the Respondent submitted that the streetscape of the local area was established through a broad examination of the area, as undertaken by Ms Warton, and the streetscape presentation of the adjoining child care centre did not provide a precedent upon which the Court should rely to establish local character.

  2. Having considered the submissions of the Parties and the evidence of the expert planners and the Respondent’s early education expert, I have concluded that:

  1. while I agree with the assessment of Ms Warton that the predominant streetscape of the local area is characterised by low fences and gardens within front setbacks, I note that this type of streetscape is associated with residential forms of development in the area;

  2. as identified by Mr Fletcher, while the local area is predominantly residential in nature, other forms of development, including the adjacent child care centre, occur within the local area and these introduce a different streetscape element as required by their different land use;

  3. as the Proposed Development is for a non-residential use, consistent with my conclusion above (at [(2)]) I am satisfied that the presentation of the front fence, which includes the landscaped hedging is compatible, with the character and streetscape of the local area;

  4. notwithstanding my conclusion above (at [(3)]), in my assessment the streetscape of the Proposed Development is not limited to the front boundary fencing with its hedging. It includes the presentation of the access driveway and upper passing bay and the unimpeded view of the 6m front fence with perspex acoustic barrier along the north western boundary of the outdoor play area; and

  5. based on my assessment (at [(4)]), it is my further assessment that the Applicant’s proposed acoustic barrier within the front setback, whether frosted or unfrosted, and without landscaped vegetation screening:

  1. is not a feature that occurs within the streetscape of the local area;

  2. is not a feature that is in character with the locality and existing streetscape and does not contribute to the local area;

  3. does not use landscaping to positively contribute to the streetscape and neighbouring amenity;

  4. for reasons provided above at [(b)] and [(c)], is not consistent with consideration C5 of Section 3.2 of the Guideline;

  5. does not, in my assessment, achieve the objective of consideration C5 as it does not ensure that the child care facility is compatible with the local character and surrounding streetscape.

  1. In relation to consideration C9 of Section 3.2 of the Guideline (see above at [25(1)(b)]):

  1. I note that this consideration requires that front fences and walls within the front setback should be constructed of visually permeable materials and treatments;

  2. the Applicant has proposed that it’s perspex acoustic barrier within the front setback would be clear and so visually permeable, consistent with the requirements of consideration C9;

  3. as noted above by the Respondent’s early education expert, Ms Shepherd, stated that a visually permeable acoustic barrier would not protect the privacy and security of children attending the facility, as required under consideration 21 in Section 3.5 of the Guideline (see above at [25(3)(a)]);

  4. as noted above (at [51(3)(b)]) the Applicant’s expert planner, Mr Fletcher, proposed that, if required, the acoustic barrier along the north western boundary of the outdoor play area in the front setback could be frosted to provide for the privacy and security of children using that area.

  1. As a consequence of matters identified above (at [56]) I conclude that:

  1. the design of the front acoustic barrier could satisfy either consideration C9 of Section 3.2 of the Guideline or it could satisfy consideration C21 of Section 3.5 of the Guideline, but it is not able to satisfy both considerations;

  2. if the Court were to prefer, as suggested by Mr Fletcher, that the acoustic fence should be frosted to respond to consideration C21 of the Guideline it would:

  1. achieve the objective of that consideration as it would protect the privacy and security of children attending the facility; but

  2. it would not, in my assessment, achieve the objective of consideration C9 because, given its visibility from the footpath and roadway along Chamberlain Street:

  1. the fence incorporating acoustic barrier would not respond to, and complement, the context and character of the area;

  2. it would dominate the public domain.

  1. if the Court were to prefer that the acoustic fence should remain clear, as proposed, in order to respond to consideration C9 of the Guideline it would not achieve the objective of consideration C21.

  1. Relying on my conclusions above (at [57]), I further conclude that the Applicant’s proposed fencing with acoustic barrier, which does not include landscaped vegetation is not acceptable for the following reasons:

  1. it is unable to satisfy both considerations C9 and C21 of the Guideline, the provisions of which generally take precedence over a development control plan where the two overlap in relation to a child care facility;

  2. it does not merit the application of flexibility as provided under the provisions of s 4.15(3A) of the EP&A Act, because:

  1. if it achieved the objective of consideration C21 it would not achieve the objective of consideration C9, as discussed above (at [57(2)]);

  2. if it achieves the objective of consideration C9 it would not achieve the objective of consideration C21, as discussed above (at [57(3)]).

Conclusion in relation to the acceptability of the streetscape of the Proposed Development

  1. On the basis of the above, I have concluded that the streetscape of the Proposed Development is not acceptable because:

  1. the design of the Applicant’s proposed upper passing bay in its access driveway is not acceptable for reasons provided above at [43(2)];

  2. the Applicant’s proposed streetscape is not acceptable for reasons provided above at [55] and [58] in relation to considerations C5, C9 and C21 of the Guideline.

  1. I am also satisfied that, because I have concluded that the streetscape of the Proposed Development is not acceptable, the Proposed Development is inconsistent with Principle 1 of the Guideline (see above at [24(1)]) concerning context.

  2. Further, because the streetscape of the Proposed Development is not acceptable, I am also satisfied that sufficient reasons are established to require that the Applicant’s Proposed Development not be approved.

Consideration of remaining contentions

  1. On the basis on my conclusion above (at [61]), there is no utility in giving further consideration to the remaining contentions in the appeal because, even if the Court were to find in favour of the Applicant in relation to each of those, that would not provide a sufficient basis to overcome the reasons already established that require that the Proposed Development not be approved.

Orders

  1. The orders of the Court are:

  1. The appeal is dismissed;

  2. Development Application DA2020/0050 seeking consent for demolition of existing structures and construction of a 60 place child care centre with basement car parking at 36 Chamberlain Street, Narwee, is determined by way of refusal;

  3. The exhibits are returned, with the exception of Exhibits C, D and 1.

..………………………..

M Chilcott

Commissioner of the Court

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Decision last updated: 27 July 2021

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Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Project Venture Developments v Pittwater Council [2005] NSWLEC 191