Elzahr v Fairfield City Council

Case •

[2022] NSWLEC 1542

•

04 October 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Elzahr v Fairfield City Council [2022] NSWLEC 1542
Hearing dates: 1 2 and 3 June 2022
Date of orders: 4 October 2022
Decision date: 04 October 2022
Jurisdiction:Class 1
Before: Chilcott C
Decision:

The Court orders:

(1) the Applicant is granted leave to rely on amended plans in the proceedings;

(2) the Applicant is to pay the Respondent’s costs thrown away in dealing with the Applicant’s amended plans, as agreed or assessed, pursuant to the provisions of s 8.15(3) of the Environmental Planning and Assessment Act 1979;

(3) the appeal is dismissed;

(4) Development Application DA396.1/2020 seeking consent for demolition of existing structures and construction of a 103 place child care centre with ancillary works at 157 to 161 Walworth Road, Horsley Park, is determined by way of refusal;

(5) the exhibits are returned, with the exception of Exhibits A, B, C, 1 and 12

Catchwords:

DEVELOPMENT APPLICATION – child care centre – whether streetscape of Proposed Development is compatible with character of the local area – whether Applicant’s proposed earthworks are acceptable - whether proposed stormwater management arrangements are acceptable – whether parking is acceptable

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.43, 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 49, 55, 77

Fairfield Local Environment Plan 2013, cll 2.3, 4.1, 4.3, 6.2, 6.9

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 2, 8, 22, 23, 25, 26

Cases Cited:

BPG Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399

Texts Cited:

Building Code of Australia, Australian Building Codes Board

Fairfield City Council Stormwater Management Policy 2017

Fairfield City Wide Development Control Plan 2013

Guideline for Child Care Centre Acoustic Assessment 2020, Association of Australasian Acoustical Consultants

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

NSW Department of Planning, Child Care Planning Guideline 2017

Category:Principal judgment
Parties: Ronny Elzahr (Applicant)
Fairfield City Council (Respondent)
Representation:

Counsel:
J Reid (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2021/213371
Publication restriction: No

Judgment

  1. COMMISSIONER: Ronny Elzahr (the Applicant) has appealed the refusal by Fairfield City Council of his development application DA396.1/2020, made with owners’ consent, seeking approval for demolition of existing structures and construction of a two-storey child care centre, along with parking and ancillary works (the Proposed Development) at 157 to 161 Walworth Road, Horsley Park, otherwise identified as lot 52 in DP 1095736 (the Subject Site).

  2. The Applicant was granted leave to rely on amended plans and as a consequence of those plans, the Applicant’s Proposed Development, as amended, now includes the following:

  1. a capacity for 103 children to attend the centre;

  2. at grade and basement car parking, providing 30 on-site parking spaces, 14 of which would be located at the street frontage and 16 are located in the proposed basement/undercroft parking area;

  3. ancillary works including earthworks, outdoor play areas, landscaping, fencing, pedestrian ramp and stormwater management; and

  4. an effluent management system, designed so as to disperse effluent from the Proposed Development via a trench located at the western, and downhill, margin of the Subject Site adjacent to, and at the rear of, the adjacent property at 163 Walworth Road, Horsley Park.

  1. The child care facility would be operated between 7am and 6pm Monday to Friday and would employ 19 staff including a director and a chef.

  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. The Subject Site is zoned RU4 Primary Production Small Lots pursuant to the provisions of cl 2.3 of Fairfield Local Environment Plan 2013 (FLEP) (see below at [20]) and a child care centre is a permissible land use in that zone.

  4. The location of the Subject Site (outlined in red) within its local setting on Walworth Road is shown in the following figure drawn from the NSW Government’s Six Maps website:

Figure 1: The location of the Subject Site (outlined in red) within its local setting

  1. The Applicant’s original development application was initially notified between 13 and 27 October 2020, consistent with the provisions of cl 77(1) of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation) and the Respondent’s Community Engagement Strategy, and two submissions were received in response to that notification.

  2. The Applicant’s amended applications were further notified:

  1. between 24 August and 7 September 2021, in response to which two submissions were received; and

  2. between 23 February and 10 March 2022 in relation to the amendments that now form the Proposed Development in this appeal and in response to which one submission was received.

  1. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, a site view was undertaken at the commencement of the hearing.

  2. Following the site view, and upon resumption of the hearing at Court, the Applicant sought leave to rely on further amended architectural, landscape, and stormwater plans, along with a noise assessment prepared by Koikos Acoustics, dated 2 November 2021. That eave was granted without objection and the Respondent agreed, as consent authority, to DA being amended, pursuant to cl 55 of EP&A Regulation.

  3. The amended plans and other documents were tendered as evidence in the proceedings.

  4. The Parties were directed to upload amended plans onto the NSW planning portal within 7 days of leave being granted, and they have confirmed that this has been completed.

  5. The Applicant indicated that it would not oppose an order in relation to it paying the Respondent’s costs thrown away in dealing with its amended plans, as agreed or assessed, pursuant to the provisions of s 8.15(3) of the EP&A Act.

  6. The Court was assisted in its consideration of the responsiveness of these amended plans to the contentions in the appeal by the reports and oral testimony of the following experts:

  1. expert town planners, Mr Joseph Vescio for the Applicant, and Mr Jeff Mead for the Respondent;

  2. the stormwater engineering experts, Mr Stanley Leung for the Applicant, and Mr Stephen Rajathuri, for the Respondent;

  3. the Parties’ acoustic experts, Mr Steven Cooper for the Applicant, and Mr Adam Shearer for the Respondent;

  4. the Parties’ landscape architecture experts, Mr John Chetham for the Applicant, and Mr David Shackleton for the Respondent;

  5. the arboriculture experts, Mr Guy Paroissien for the Applicant, and Mr David Shackleton, for the Respondent;

  6. the building surveying experts, Joseph Vescio for the Applicant, and Mr Grant Milenou for the Respondent;

  7. the Parties’ wastewater experts, Mr Andrew Norris for the Applicant, and Mr Sean Harris for the Respondent;

  8. the Applicant’s child care expert; Dr Brenda Abbey.

  1. The Parties 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, the following matters that had been in contention had been resolved:

  1. certain matters concerning the height of the Proposed Development including compliance with controls concerning maximum wall heights and the overall height of the building;

  2. the adequacy of setbacks to the northern side boundary;

  3. the design of fencing to the eastern perimeter of proposed outdoor area 2, and a portion of the northern perimeter;

  4. the design of the southern and western perimeters of proposed outdoor area 2;

  5. the responsiveness of the design of the development to the natural orientation of the Subject Site and its impacts in relation to availability of solar access and the provisions of shade to children who would be occupying the development;

  6. contentions concerning the Applicant’s proposed landscaping plans, including the potential impact of the wastewater system on a significant eucalypt tree;

  7. contentions concerning the adequacy of information provided by the Applicant in relation to its proposed on-site wastewater management system;

  8. certain contentions related to compliance of the Proposed Development with the Building Code of Australia;

  9. contentions concerning vehicle access, traffic and parking;

  10. certain contentions concerning the provision of information in relation to:

  1. elevation and section plans; along with

  2. plans for the food preparation area within the Proposed Development.

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

  1. planning contentions concerning whether the Proposed Development, as amended, is acceptable in relation to:

  1. the design of the Applicant’s proposed fencing;

  2. the character of the Proposed Development, as amended, particularly in relation to its presentation of the child care centre to the street; and

  3. the Applicant’s proposed earthworks;

  1. whether the potential impacts of the Applicant’s proposed methods for disposal of stormwater from the Proposed Development were acceptable; and

  2. whether the potential acoustic impacts of the Proposed Development are acceptable given the assumptions made concerning the split in active and passive play undertaken by children in the Proposed Development.

Statutory context

Environmental Planning and Assessment Act 1979

  1. Section 4.15(1)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:

(3A) 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 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. the now clause 55, which continues to apply to the Applicant’s proposed Development as a consequence of its lodgement date, which requires that an amendment to a development application can be made with the agreement of the relevant consent authority.

  3. 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).

Fairfield Local Environmental Plan 2013

  1. The provisions of cl 2.3 of FLEP provide the land use table for land to which FLEP applies, and cl 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

  2. The Subject Site is zoned RU4 Primary Production Small Lots under the provisions of cl 2.3 of FLEP, the objectives of which are:

  • To enable sustainable primary industry and other compatible land uses.

  • To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

  • To minimise conflict between land uses within this zone and land uses within adjoining zones.

  • To ensure that development is sympathetic to the rural environment and minimises risks from natural and man-made hazards.

  1. Centre-based child care facilities are a permissible use of land such as the Subject Site that is zoned RU4.

  2. Further provisions of FLEP that are of particular relevance in this appeal include the provisions of:

  1. clause 4.1, which establishes development standards in respect of minimum lot sizes, and in relation to which the Subject Site complies with the minimum 1Ha standard applicable under its RU4 zoning;

  2. clause 4.3, which establishes development standards for the height of buildings for which consent can be granted, and in relation to which the Proposed Development, as amended, is compliant with the 9m maximum height applicable to development on the Subject Site;

  3. clause 6.2 concerning earthworks, and which provides as follows:

(1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

(2) Development consent is required for earthworks unless—

(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or

(b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.

(3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters -

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

  1. clause 6.9 concerning essential services, which provides as follows:

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

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

  1. The Proposed Development is subject to the provisions of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP Childcare), 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 SEPP Childcare 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 SEPP Childcare are of particular relevance in this appeal:

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

  1. clauses 22(1)-(2) 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, where 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 and which includes:

  1. an introductory comment that outdoor areas near residential uses can be designed to encourage more passive activities. Acoustic attenuation measures can be used to reduce reflected noise and once a facility is operating, the installation of public address systems should be discouraged;

  2. matters for consideration including considerations C23 and C24, which have the following objectives and which provide the following detailed considerations:

“Objective: To minimise the impact of child care facilities on the acoustic privacy of neighbouring residential developments

C23

A new development, or development that includes alterations

to more than 50 per cent of the existing floor area, and is

located adjacent to residential accommodation should:

• provide an acoustic fence along any boundary where the adjoining property contains a residential use. (An acoustic fence is one that is a solid, gap free fence).

• ensure that mechanical plant or equipment is screened by solid, gap free material and constructed to reduce noise levels e.g. acoustic fence, building, or enclosure.

C24

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

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

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

in use

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

Fairfield City Wide Development Control Plan 2013

  1. Development on the Subject Site is subject to the provisions of FDCP which provides guidance and controls for the design and assessment of proposed Development.

  2. Section 4A of FDCP provides general planning considerations to guide development on rural zoned lands to which FDCP applies, and includes:

  1. the provisions of section 4A.1 in relation to the existing character of the rural area, and which provides:

  1. the following description of the existing character of the rural area:

“The existing character of the rural area is generally a semi-rural environment that contains a mix of rural-residential, agricultural and extractive land uses. Several creeks traverse the area and are lined with pockets of vegetation. The remainder of the area has mostly been cleared of natural vegetation”.

  1. the following objectives:

a) To ensure development is consistent with the existing character of the rural area;

b) To prohibit any further intensive agricultural activities such as piggeries and poultry farms;

c) To ensure all new development in the area has regard to its rural setting and minimises adverse effects on the environment and adjoining residents;

  1. the following control:

“To ensure new development is consistent with Council's intention to provide a suitable environment for rural-residential living and at the same time allow the retention of the semi-rural character of the area

  1. the provisions of section 4A.7 concerning criteria for rural building design, the objectives of which are to ensure that building designs respond to the natural features and topography of the land and to preserve existing landscape features. The section includes the following specific controls in section 4A.7.3.5 that, along with other controls in section 4A.7, facilitate achievement of the above objectives:

a) A maximum fill of 1 metre will be permitted where the filling is contained within the building envelope by a drop edge beam; and

b) Filling of the ground outside the building envelope is not permitted.

  1. the provisions of section 4A.10 in relation to stormwater:

  1. include the following objectives and on site detention of stormwater discharges:

  1. in relation to stormwater disposal:

a) To direct stormwater runoff to Council’s drainage system without adversely impacting on adjoining or downstream properties.

b) To ensure the efficient and effective planning, management and maintenance of Council’s existing and future stormwater systems and reduce environmental and property damage.

c) To ensure that OSD requirements integrate with the architectural design and layout of the development, ie the OSD system needs to be located so as not to compromise the location of the septic system.

  1. in relation to on site detention of stormwater discharges:

a) To ensure that through the use of OSD, stormwater discharge is controlled thereby ensuring development does not increase the risk of downstream flooding, erosion of unstable waterways or a reduction of the capacity of Council’s drainage network.

  1. identify the relevant controls, performance criteria and where the policy applies, which can be found in Chapter 3 of the Fairfield City Council Stormwater Management Policy 2017 (SMP).   

Fairfield City Council Stormwater Management Policy 2017

  1. The Proposed Development is subject to the provisions the SMP.

  2. Section 3 of the SMP in relation to the disposal of stormwater and connection to Council’s stormwater system provides objectives, controls and design consideration for stormwater drainage in terms of collecting and controlling stormwater run-off to an approved point of discharge, and in relation to this:

  1. includes the following two objectives:

1. To direct stormwater runoff to Council’s drainage system without adversely impacting on adjoining or downstream properties.

2. To ensure the efficient and effective planning, management and maintenance of Council’s existing and future stormwater systems and reduce environmental and property damage.

  1. includes the following performance criteria of relevance in this appeal;

4. All stormwater drainage must be via a gravity system where possible.

5. All designs should not create any unnecessary maintenance burdens for existing or future owners of the site.

6. The proposed development should not result in significant impacts on the amenity of the site and surrounding area.

  1. includes a section 3.4.2 in relation to stormwater drainage to the rear of the property, and which notes that if stormwater runoff from all impervious areas in a site cannot be collected and directed to Council’s kerb and gutter or underground drainage system via gravity, stormwater may be disposed from the site through any of the options identified in Table 2 in that section where allowable circumstances exist. Table 2 identifies the circumstances where each of the following options might be adopted:

  1. private drainage easement;

  2. through publicly owned land;

  3. charged system

  4. elevated line;

  5. pump out system;

  6. absorption trench;

  1. includes a section 3.5 which provides design considerations for stormwater disposal, and which provides in its section 3.5.2 the following in relation to impacts on adjoining properties:

When designing a development, the engineer is to be aware of the impact the development could have on adjoining properties. In terms of stormwater, the following issues will need to be addressed;

Changes in site levels shall not cause a restriction to flows from upstream properties;

Diversion of flows from one drainage catchment to another will not be permitted in most circumstances;

Any development shall not concentrate the overland flow of stormwater onto an adjoining property;

A person has a common-law obligation not to carry out any work on their property that will adversely affect adjoining properties.

Developments that have an adverse impact on adjoining/surrounding properties in relation to the above issues will not be approved.

  1. Section 4 of the SMP addresses requirements in relation to on-site detention systems and includes controls in relation to the permissible site discharge and site storage requirements that must be satisfied by on site detention (OSD) systems installed on rural lands, such is the case for the Subject Site.

Contentions

  1. The remaining contentions in the appeal were noted above (at [16]), and require resolution of the following questions:

  1. in relation to planning matters, is the Proposed Development, as amended, acceptable in relation to:

  1. the design of the Applicant’s proposed fencing?

  2. its compatibility with the character of the local area, including the presentation of the child care centre to the street?

  3. the Applicant’s proposed earthworks, and in particular its proposed levels of fill across the Subject Site?

  1. are the potential impacts of the Applicant’s proposed methods for disposal of stormwater from the Proposed Development acceptable?

  2. are the potential acoustic impacts of the Proposed Development, as amended, acceptable given the assumptions made concerning the split in active and passive play undertaken by children in the Proposed Development?

  1. I will first address the planning contentions in the appeal before considering the contentions concerning stormwater and acoustic impacts.

Resolution of planning contentions

Is the Proposed Development, as amended, acceptable in relation to the design of the Applicant’s proposed fencing?

  1. During the hearing, the Applicant indicated that it would accept a condition of consent, and would enter into a deed, to require that the design of the Applicant’s proposed front fencing should be changed from the originally proposed Colorbond fencing to a post and rail design.

  2. The Parties’ expert planners agreed, and I am satisfied, that the Applicant’s acceptance of these conditions has resolved this contention.

Is the Proposed Development, as amended, acceptable in relation its compatibility with the character of the local area?

  1. Clause 23 of SEPP Childcare (see above at [26(2)]) provides that the consent authority, or the Court on appeal, must take into consideration any applicable provisions of the Guideline, in relation to the Proposed Development.

  2. Within the Guideline, the objective of section 3.2 seeks to ensure that the child care facility is compatible with the local character and surrounding streetscape and the terms of the Guidelines’ consideration C5 requires that the proposed development should:

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

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

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

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

  5. use landscaping to positively contribute to the streetscape and neighbouring amenity;

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

  1. Further, section 3.3 of the Guideline seeks 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, and the terms of consideration C15 requires that the built form of the development should contribute to the character of the local area, including how it:

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

  2. contributes to the identity of the place

  3. retains and reinforces existing built form and vegetation where significant

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

  1. responds to its natural environment including local landscape setting and climate

  2. contributes to the identity of place;

  1. The Respondent had contended that the Proposed Development as amended:

  1. was inconsistent with the provisions of the Guideline’s consideration C5 as it did not ensure that the child care facility would be compatible with the local character and surrounding streetscape;

  2. was inconsistent with provisions of the Guideline’s consideration C15 as the built form, articulation and scale of development did not relate to its context and buildings were not well designed such that they would contribute to the area's character; and

  3. was inconsistent with the objective of the RU4 zone that seeks to ensure that development is sympathetic to the rural environment and minimises risks from natural and man-made hazards.

  1. Within their joint expert report, the Parties’ planning experts had:

  1. considered the compatibility of the Proposed Development, as amended, with the character of the local area; and

  2. agreed that chapter 4A of FDCP, which provides guidance in relation to development in rural zones, and in particular section 4A.1, provided the definition for the existing character of the rural area that is subject to the provisions of FDCP, as follows:

“The existing character of the rural area is generally a semi-rural environment that contains a mix of rural-residential, agricultural and extractive land uses. Several creeks traverse the area and are lined with pockets of vegetation. The remainder of the area has mostly been cleared of natural vegetation.”

  1. disagreed as to whether the Proposed Development was compatible with the character of the area.

  1. Mr Vescio, for the Applicant, opined that the Proposed Development, as amended, was acceptable in relation to the character of the area because the planning controls applicable to development on the Subject Site, and in particular its RU4 zoning, envisage a diverse character for the local area given the range of permissible land uses, and noting that, in his view:

  1. there was nothing within the provisions of FLEP that supported a proposition that the desired future character of the RU4 zone was a rural residential character;

  2. the majority of the permitted uses in the land use table for the RU4 zone were non residential, including centre based child care facilities;

  3. there was no consistent identifiable built form characteristic that was predominant or which clearly defined the character of the existing rural area or locality;

  4. architectural forms, expression and scale were quite varied in the area, and he provided examples that he said supported this position;

  5. the design of the Proposed Development, as amended, would be in character with the locality and existing streetscape as the building and outdoor play equipment would be set down relative to the street level so that they were not readily perceptible from the street, and:

  1. the child care centre building would appear single storey from the street;

  2. the Applicant’s landscaping would significantly reduce visibility of the building within the streetscape;

  3. the building would appear as a large house consistent with the scale and form of newer houses constructed in the locality, noting that it would have a “benign materiality and colour scheme”.

  1. Mr Mead, for the Respondent, said that, in his opinion, the area for assessment of the character of the Proposed Development, as amended, was the local area bounded by Walworth Road, Burley Road, Arundel Street and The Horsley Drive.

  2. The Subject Site, along with the location of the streets bordering Mr Mead’s proposed local area, the names of which are identified within ellipses, are provided on the following Google Maps image:

Figure 2: Mr Mead’s area for assessment of character as defined by roads in vicinity of the Subject Site

  1. Mr Mead also said that, in his opinion:

  1. the existing character of the local area was reflective of the following features:

  1. a built form dominated by rural residential dwellings and ancillary structures, including some that were of an agricultural nature;

  2. outdoor open spaces typically in the form of at grade verandahs or balconies incorporated into the form of the dwelling;

  3. front setbacks that contain at grade access paths and otherwise landscaped areas that are free of ancillary structures;

  4. fencing of a rural nature such as post and rail or low scale wire fencing, with solid fencing being uncharacteristic notwithstanding there being a sole example being associated with the property to the north of the Subject Site;

  1. the Proposed Development, as amended, was incompatible with the existing character of the area because it included the following features that did not respond to contextual clues of the locality:

  1. a proposed building that did not have the form of a rural residential dwelling, including that its footprint of around 1,475 m2 and site coverage of around 3,087 m2 “well exceeded” those of all developments within the local area (see above a [46]);

  2. large hardstand car parking areas, particularly forward of building lines, and a proposed raised driveway and parking area, all of which are uncharacteristic of the local area;

  3. a raised driveway, which is uncharacteristic of the local area and which is also contrary to the objective of section 4A.2.3.7 of FDCP concerning access points and which seeks to ensure:

  1. that road construction in the rural area is consistent with other areas of the City and, where appropriate, are provided in a manner conducive to local conditions; and

  2. that, inter alia, access driveways should, as far as possible, follow natural contours rather than cutting across the contours with extensive cut and fill to be avoided in order to retain the natural character of the site by reducing the intrusive appearance of driveways;

  1. large raised outdoor spaces in the form of terraces and balconies, which are uncharacteristic of the locality;

  2. large areas of cut and fill across building footprints and outside building envelopes, which are not reflective of the predominant character of the area;

  3. formal landscaping for the purpose of screening the proposed child care centre building, which is not characteristic of the locality; and

  4. basement car parking, which is not generally seen in the area, notwithstanding the partly excavated garaging present on the property to the north of the Subject Site.

  1. During the hearing, the Parties’ expert planners provided the following further evidence:

  1. Mr Vescio said that:

  1. the area identified by Mr Mead as the basis for assessment of character contained examples of a variety of built forms;

  2. there was nothing about the area identified by Mr Mead as the basis for his assessment that was unique compared to other areas of RU4 zoned lands in the suburb of Horsley Park;

  3. he did not feel the need to confine his assessment of character to the specific immediate location of the Subject Site as had been the case in the assessment undertaken by Mr Mead;

  1. Mr Mead stated that:

  1. he agreed that a child care centre was permissible in the RU4 zone, noting that this use of land is not permissible in all rural zonings identified within FLEP;

  2. he also agreed that the description of existing character in section 4.A.1 of FDCP (see above at [44(2)]) applied to all development in rural zones, including those zones in which a child care centre was either permissible or not permissible;

  3. the objectives of the RU4 zone in FLEP sought, inter alia, to ensure that development is sympathetic to the rural environment;

  4. within section 4A.1 concerning existing character of the rural area of FDCP, the objectives for development in rural areas included an objective concerning character that, inter alia, sought to:

  1. ensure development is consistent with the existing character of the rural area; and

  2. ensure that all new development in the area has regard to its rural setting;

  1. the rural environment and setting referred to in FLEP and FDCP incorporated both built and non-built elements;

  2. his assessment of the compatibility of the Proposed Development, as amended, with the character of the local area and surrounding streetscape had sought to identify those elements of character within that area and to use these as the basis for an objective assessment of character.

  1. In closing the Applicant submitted that:

  1. consistent with the provisions of cl 2.3 of FLEP, the consent authority, or Court on appeal, must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone;

  2. consistent with the findings of McClennan CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (hereafter referred to as BPG Properties) (at [117]):

“In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted.”

  1. the objectives for development in lands with rural zoning contained within Part 4.1 of FDCP were not consistent with the objectives of the RU4 zone, and to the extent of any inconsistency, the objectives of the zone must be preferred to those within a Development Control Plan as required under the provisions of s 3.43(5) of the EP&A Act which state:

“(5) A provision of a development control plan (whenever made) has no effect to the extent that—

(a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or

(b) it is inconsistent or incompatible with a provision of any such instrument.”

  1. the assessment undertaken by Mr Mead was too narrow in its consideration of character and should have addressed the character of the entire RU4 zone rather than within the area identified by him for assessment;

  2. the character of development in the zone was more diverse than that assessed by Mr Mead, and included developments such as the Assyrian School on the southern outskirts of Horsley Park and which confirmed that different uses can look different within the same RU4 zone;

  3. notwithstanding that the design of the Applicant’s proposed child care centre may look different to surrounding rural residential developments, the landscape experts had agreed that the proposed dual layer plantings, as well as the Applicant’s proposed re-establishment of Cumberland Plain Woodland species, was consistent with the character of the area, and would ensure that the child care centre and outdoor play area 2 at the front the of development would not be seen from the road;

  4. although Mr Mead had said that the proposed child care centre building and site coverage were too large and inconsistent with the character of the locality, the Proposed Development, as amended, was a permissible use in the RU4 zone that was consistent with the objectives and development standards in FLEP and should be acceptable.

  1. In response, the Respondent submitted that:

  1. while a child care centre was a permissible use on the Subject Site, the scale of the Proposed Development, as amended, was too large for the Subject Site and, as a consequence of its proposed accommodation for 103 children, its bulk and scale was uncharacteristic of the locality;

  2. the RU4 zoned lands within Horsley Park did not have a homogenous character, and different areas of the suburb had different characters;

  3. Mr Mead’s conclusion that the Proposed Development, as amended, was not compatible with the character of the locality:

  1. had included regard to the objectives of the RU4 zone, as required under cl 2.3 of FLEP;

  2. had considered the provisions of section 4A.1 of FDCP in relation to the existing and desired future character of the locality; and

  3. was responsive to the provisions of the Childcare Guideline, as required under SEPP Childcare, and which included:

  1. an objective to ensure that the child care facility is compatible with the local character and surrounding streetscape, along with the specific considerations at C5 (see above at [30(1)(a)]); and

  2. a further 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, along with specific considerations at C15 (see above (at [30(2)(a)]);

  1. Mr Mead’s assessment had stated:

  1. that the bulk of the Proposed Development, as amended, was between 3 and 4 times the scale of other developments in the locality and particularly in the surrounding streetscape, as required to be considered under sections 3.2 and 3.3 of the Guideline;

  2. that elements of the Applicant’s design were not characteristic of the locality, including the surrounding streetscape, such as the basement and hardstand areas proposed for car parking and the outdoor play area in the front setback of the development;

  3. the uncharacteristic nature of the elements of the Proposed Development identified above at [(b)] was confirmed by the Applicant proposed screening of these elements to hide them from street view;

  4. notwithstanding the screening of the uncharacteristic elements to Walworth Road, the bulk and scale of the Proposed Development, as amended, would remain apparent from observers located below the Subject Site along Arundel Road to its west;

  1. while it acknowledged that a child care centre was a permissible land use on the Subject Site, the Proposed Development, as amended, was not compatible with the local character of the Subject Site, and so:

  1. was not compatible with the character of the local area provided within section 4A.1 of FDCP as it did not achieve the objectives of that control to ensure development is consistent with the existing character of the rural area and did not ensure that as a new development in the area it had regard to its rural setting;

  2. was inconsistent with the provisions of consideration C5 of section 3.2 of the Guideline in relation to local character, streetscape, and the public domain, as it did not:

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

  2. reflect the predominant form of surrounding land uses;

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

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

  5. integrate car parking into the building:

  1. did not achieve the objective related to the considerations in C5 of Part 3.2 of the Guideline which is to ensure that the child care facility is compatible with the local character and surrounding streetscape and which is a relevant matter for consideration consistent with the provisions of SEPP Childcare.

  1. Having considered the evidence of the Parties’ planning experts, and their respective submissions, and having had regard to the objectives of the RU4 zoning of the Subject Site, including its objective, inter alia, to ensure that development is sympathetic to the rural environment, I have concluded that:

  1. the objectives of considerations C5 and C15 of the Guideline, as well as the objectives of section 4A.1 of FDCP, are consistent with the objectives of the RU4 zone, noting that:

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

  2. the objective of consideration C15 is 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.

  3. the objectives of section 4A.1 include the following:

  1. to ensure development is consistent with the existing character of the rural area;

  2. to ensure all new development in the area has regard to its rural setting and minimises adverse effects on the environment and adjoining residents;

  1. the description of the existing character of the rural area in section 4A.1 of FDCP includes that it is generally a semi-rural environment containing a mix of rural-residential, agricultural and extractive land uses;

  1. I agree with the expert planners that section 4A.1 of FDCP defines the existing character of the rural area, and I am satisfied that it is an appropriate basis against which to assess the achievement of the above objectives by the Proposed Development, as amended;

  2. I prefer the assessment of Mr Mead in relation to the compatibility of the Proposed Development, as amended, with the character of the area, including in relation to the surrounding streetscape, for the following reasons:

  1. Mr Mead’s assessment is:

  1. appropriately structured, in terms of the definition of the existing environment as a semi-rural environment containing a mix of rural-residential, agricultural and extensive land uses, as stated in section 4A.1 of FDCP, and in identifying the elements of character that contribute to that character so as to facilitate assessment of the Proposed Development, as amended;

  2. focused, in terms of defining the local area and in giving consideration to the surrounding streetscape of the Subject Site, and so facilitating an assessment against the specific provisions of consideration C5 in Chapter 3.2 of the Guideline, which is a mandatory consideration under the provisions of cl 2 of SEPP Childcare;

  1. by contrast, the assessment provided by Mr Vescio:

  1. adopted the entirety of the R4 zoned lands within Horsley Park as the basis for his assessment of the consistency of the Proposed Development, as amended, with the existing character of the rural area;

  2. in relying on the entirety of the R4 zoned lands within Horsley Park as the basis for his assessment, did not achieve the same structured and focused degree of assessment of the Proposed Development, as amended, against the local character, and in particular the surrounding streetscape;

  3. as a consequence of the basis for his assessment (see above at [ii]), did not provide an assessment of the compatibility that is required under SEPP Childcare in relation to local character and surrounding streetscape and so did not demonstrate, to my satisfaction, that the Proposed Development , as amended, would achieve the objective of consideration C5 in Part 3.2 of the Guideline to ensure that the child care facility is compatible with the local character and surrounding streetscape, which is a relevant consideration under cl 23 of SEPP Childcare.

  1. I agree with the submission of the Respondent, relying on the evidence of its planning expert, Mr Mead, that the Proposed Development, as amended:

  1. is not compatible with the local character and surrounding streetscape of the Subject Site, for the reasons it has identified above (at [51]); and therefore

  2. does not satisfy the control in section 4A.1.3 of FDCP which includes, inter alia, a requirement for development to retain the semi-rural character of the area; and

  3. does not achieve the objectives of section 4A.1.2 of FDC as it would not ensure that development is consistent with the existing character of the rural area and would not ensure that all new development in the area has regard to its rural setting, and so is not a reasonable alternative meriting the application of flexibility in the application of the controls in section 4A.1.2 of FDCP, pursuant to s 4.15(3A) of the EP&A Act;

  4. does not satisfy the considerations in C5 of Part 3.2 of the Guidelines, as it would not:

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

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

  1. recognise predominant streetscape qualities, such as building form, scale; and

  1. does not achieve the objective of consideration C5 of the Guideline which is to ensure that the child care facility is compatible with the local character and surrounding streetscape, which is a relevant consideration in relation to the grant of consent under the provisions of cl 23 of SEPP Childcare (see above at [26(2)]).

  1. I am also satisfied that the built form and scale of the Proposed Development, as amended, does not achieve the objective of consideration C15 of the guideline as:

  1. it does not relate to its context, for reasons identified by Mr Mead in his assessment; and, as a consequence

  2. it would not contribute to the area’s character; and

  3. it is inconsistent with the provisions of consideration C15 of section 3.3 of the Guideline in relation to the character of the local area, as it did not respond to its physical context including adjacent built form, neighbourhood character and streetscape quality.

  1. Finally, noting that I have concluded that the Proposed Development, as amended, would not achieve either the objectives in considerations C5 and C15 of the Guideline, or the objectives of section 4A.1 of FDCP, and noting that these objectives are not, in my assessment, inconsistent with the objectives of the RU4 zone, I am satisfied that the Proposed Development, as amended, would not ensure that development is sympathetic to the rural environment which is an objective of the RU4 zoning of the Subject Site.

Is the Proposed Development, as amended, acceptable in relation to the Applicant’s proposed earthworks, and in particular its proposed levels of fill across the Subject Site ?

  1. The provisions of Chapter 4A.7 of FDCP provide criteria for building design on rural land, and notes that, inter alia, that sensitive siting and design of structures and the use of landscaping are important to minimise the impact of the overall development on the landscape.

  2. The objectives of section 4A.7 of FDCP are to ensure that building designs respond to the natural features and topography of the land, and to preserve existing landscape features.

  3. Further, as identified above (at [32(2)]), the controls in section 4A.7.3.5 of FDCP, facilitate achievement of the objectives of section A4.7 and provide that:

  1. a maximum fill of 1 metre will be permitted where the filling is contained within the building envelope by a drop edge beam; and

  2. filling of the ground outside the building envelope is not permitted.

  1. Within their joint report, the Parties’ expert planners had opined as follows:

  1. the Applicant’s expert planner, Mr Vescio said:

  1. the development appropriately steps down the site following the natural topography;

  2. the principal area to be filled is under the area under the eastern “pavilion” to create a level terraced area for Outdoor Play Area 2;

  3. the height of fill varies between 100mm and 1700mm at its highest point for a small area;

  4. the variation to the control in section 4A.7.3.5 of FDCP is minor and is located well within the property such that surface waters are not diverted contrary to the natural regime;

  5. the earthworks are effectively localised terracing limited in confined areas that are not visible from neighbours or the street;

  6. the earthworks are restrained so that they not produce a visual intrusion into the landscape setting and would not be evident following completion of landscaping works;

  7. the site would remain a sloping site and there would be no alteration to the legibility of the site’s topography;

  8. no environmental impacts arise that cannot be managed by standard construction measures and conditions of consent;

  1. the Respondent’s expert planner, Mr Mead said:

  1. the proposal does not respond to the topography of the Subject Site;

  2. the proposal involves an excessive amount of cut and fill;

  3. the Applicant had not provided a plan that accurately illustrated the extent of its proposed cut and fill levels;

  4. a volume report prepared for the Applicant appeared to indicate that its proposed maximum fill level was about 2.81m in depth;

  5. the Proposed Development, as amended, exceeded the controls in section 4A.7.3.5 of FDC by requiring fill that is almost three times the 1m maximum fill level, and which also provides for filling outside the building envelope which is also contrary to the control.

  1. In order to confirm the accuracy of cut and fill levels proposed under the Proposed Development, as amended, the expert planners were directed to undertake further joint conferencing during the hearing.

  2. The Parties’ expert planners provided separate plans, based on the Applicant’s Drawing DA13, that confirmed their estimates of cut and fill levels of the Proposed Development, as amended, at various points across the Subject Site, and these plans became Exhibit 13 in the proceedings.

  3. Following review of the plans, the Respondent submitted that the Proposed Development, as amended, exceeded the 1m maximum fill control in section 4A.7.3.5 at various points across the Subject Site noting:

  1. agreement by the planners of the following levels of fill:

  1. fill of 1.35m at the southern extent of the car park;

  2. fill of 2.8m at the north west corner at the rear of the Proposed Development;

  3. fill of 1.82m at the south west rear extent of the Proposed Development;

  1. an estimate by Mr Mead of a point filling depth of 3.35m just off the south western corner of the car park.

  1. Relying on the agreed levels of fill calculated by the expert planners, the Respondent further submitted that:

  1. the levels of fill proposed by the Applicant:

  1. exceeded the controls in section A4.7.3.5 of FDCP;

  2. did not meet the objectives of section A4.7 of FDCP; and so

  3. did not represent a reasonable alternative that merited the application of flexibility in relation to the control in section A4.7.3.5 of FDCP; and

  1. Mr Mead’s estimate that the volume of fill required for the development exceeded the volume generated by cut on the site by some 660m3 further confirmed that the scale of the Proposed Development, as amended, was excessive.

  1. In reply, the Applicant submitted that:

  1. a reduction in the volume of fill required for the Proposed Development, as amended, below 660m3 could be achieved by use of suspended slab construction; and

  2. notwithstanding the exceedance of fill levels beyond in the 1m control in section 4A.7.3.5 of FDCP, the Proposed Development, as amended, did step down with the slope of the Subject Site; and

  3. the Applicant’s proposed levels of cut and fill were acceptable.

  1. I have considered the evidence of the Parties’ expert planners and the Parties’ submissions in relation to the Applicant’s proposed earthworks and I am satisfied that the Applicant’s proposed levels of fill exceed the control in section 4A.7.3.5 of FDCP, and the levels of those exceedances are not minor.

  2. Further, I am satisfied that, consistent with the evidence of Mr Mead and the submissions of the Respondent which I adopt;

  1. the levels of fill required to construct the Proposed Development, as amended, are a major departure from the 1m maximum fill control in FDCP and exceed that control by up to some 1.8m or 180% of the control at one point, and significantly exceed the control in multiple additional locations across the Proposed Development;

  2. as a consequence of the Applicant’s proposed levels of fill, and cut, the design of the Proposed Development, as amended, does not respond to the features and topography of the Subject Site but rather would alter significantly those features and the topography of the site, and it would not preserve the existing landscape features, principally its slope;

  3. for reasons provided by Mr Mead, which I adopt, the Proposed Development, as amended, does not achieve the objectives of section A4.7 of FDCP and, consistent with the submission of the Respondent, does not represent a reasonable alternative that would merit the application of flexibility pursuant to s 4.15(3A) of the EP&A Act in relation to the control in section A4.7.3.5 of FDCP.

  1. I am further satisfied, that the significant levels of fill, and cut, required to achieve the construction of the Applicant’s Proposed Development, are not a characteristic of development in either the local area or the surrounding streetscape, further establishing that:

  1. the Proposed Development, as amended, is contrary to the provisions of consideration C5 and C15 of the Guideline and is inconsistent with the objectives associated with those considerations; and

  2. the Proposed Development, as amended, is not compatible with the character of the local area.

Conclusions concerning planning matters

  1. For reasons provided above (at [52(4)] and [65]), I have concluded that the Applicant’s Proposed Development should not be approved because it:

  1. is not compatible with the local character and surrounding streetscape of the Subject Site, and so;

  1. does not satisfy the control in section 4A.1.3 of FDCP; and

  2. does not achieve the objectives of section 4A.1.2 of FDCP as it would not ensure that development is consistent with the existing character of the rural area and would not ensure that all new development in the area has regard to its rural setting, and so is not a reasonable alternative meriting the application of flexibility pursuant to the provisions of s 4.15(3A) of the EP&A Act in relation to the controls in section 4A.1.2 of FDCP; and

  3. does not satisfy the considerations in, and objectives of, consideration C5 in Part 3.2 and consideration C15 in Part 3.3 of the Guidelines, and is not consistent with Principles 1 and 2 of the Guideline concerning context and built form (see above at [29]), which are relevant considerations pursuant to the provisions of cl 23 of SEPP Childcare;

  4. is not consistent with the objectives of the RU4 zoning of the Subject Site; and

  1. the Applicant’s proposed levels of fill exceed the 1m maximum control in section 4A.7.3.5 of FDCP, and as a consequence:

  1. the design of the Proposed Development, as amended, does not respond to the features and topography of the Subject Site but rather seeks to alter significantly those features and topography, and would not preserve the existing landscape features

  2. the proposed Development, as amended, does not achieve the objectives of section A4.7 of FDCP and, consistent with the submission of the Respondent, does not represent a reasonable alternative that would merit the application of flexibility pursuant to s 4.15(3A) of the EP&A Act in relation to the control in section A4.7.3.5 of FDCP.

  1. Notwithstanding the above conclusions concerning the planning contentions in this appeal I will, for completeness, address the two remaining contentions in relation to the disposal of stormwater and the acceptability of the potential noise impacts of the Proposed Development.

Are the potential impacts of the Applicant’s proposed methods for disposal of stormwater from the Proposed Development acceptable?

  1. Clause 6.9 of FLEP requires that development consent must not be granted to development unless the consent authority is satisfied that certain services that are essential for the development are available or that adequate arrangements have been made to make them available when required. These include the provision of services for the purpose of stormwater drainage or on site conservation.

  2. The provisions of section 4A.10 of FDCP (see above (at [32(3)]) provide further guidance in relation to stormwater management, including objectives for stormwater disposal and on site detention of stormwater, and it directs that relevant controls, performance criteria and where the policy applies can be found in Chapter 4 of the Council’s SMP.

  3. The provisions of the SMP of relevance in this appeal have been also provided above (at [33]).

  4. The Respondent had contended that the Applicant’s proposals for the capture, and disposal of stormwater generated from impervious surfaces within the Proposed Development was not acceptable because:

  1. it would result in unacceptable impacts on neighbouring downstream properties, and in particular on the property to its west at 163 Walworth Road;

  2. the Applicant had not demonstrated that the Subject Site could be drained in accordance with the provisions of the Council’s SMP and without adversely affecting downstream properties;

  3. the site discharge from the Applicant’s proposed OSD system would exceed the permissible discharge rate of 78 litres/s/Ha for the developed site area;

  4. the Applicant’s proposed outdoor play area was not designed so as to direct stormwater from its surface to the Applicant’s proposed OSD system

  5. as a consequence of the above points at [(1)] to [(4)], the Proposed Development, as amended:

  1. did not comply with the relevant controls and objectives of sections 3 and 4 of the SMP and section A4.10 of FDCP; and

  2. could not be subject to a grant of consent as it did not satisfy the provisions of cl 6.9 of FLEP which required the provision of certain essential services including in relation to stormwater disposal.

  1. The Respondent had also contended that the Applicant’s proposed child care building would conflict with the location of an OSD facility approved for installation on the Subject Site under a separate consent for a dwelling on the site.

  2. The Applicant has proposed that all stormwater generated by impervious surfaces within the Proposed Development, as amended, will be directed towards its OSD system, which, under an amended scheme prepared by Martens & Associates dated 25 May 2022, included four underground OSD tanks across the Subject Site, two of which were associated with drainage of the childcare centre and which would discharge to one of two spreaders located at the western boundary of the Subject Site adjacent to the rear of the property at 163 Walworth Road.

  3. The Respondent’s expert stormwater engineer, Mr Rajathuri, had agreed within his joint report prepared with Mr Leung, that the Applicant’s revised concept stormwater plan:

  1. was compliant with the Council’s permissible site discharge rate of 78 litres/s/Ha, and had resolved the contention concerning this matter;

  2. included a separate OSD tank to receive stormwater flows from the Applicant’s proposed outdoor play area 2, resolving a related contention on this matter; and

  3. the OSD system associated with the approved dwelling on the Subject Site had been redesigned to avoid conflict with the Proposed Development, and so had resolved the contention concerning this matter.

  1. Mr Rajathuri also agreed within his oral evidence at the hearing that the Applicant’s revised concept stormwater plan was designed to Council’s specifications and was of sufficient capacity for the proposed Development, as amended.

  2. Notwithstanding the resolution of these contentions, and the adequacy of the Applicant’s revised OSD system, the Respondent noted, supported by the evidence of its stormwater engineering expert, Mr Rajathuri, that:

  1. an approved driveway for a shed on the property at 163 Walworth Road would receive what it described as nuisance flows as a consequence of the Proposed Development, as amended, even during more frequent rain events;

  2. directing site discharge towards and over the downstream neighbouring property was contrary to Council’s SMP.

  1. The Applicant’s stormwater engineering expert, Mr Leung, had stated within the joint report prepared with Mr Rajathuri, that:

  1. the Applicant’s revised concept stormwater management system:

  1. would reduce stormwater flows to the neighbouring property and so reduce impacts compared to the current situation; and

  2. would not alter existing overland flow paths, including in relation to the downstream driveway on the adjacent property to the west:

  1. the Applicant’s calculated rate of stormwater discharge from the Subject Site following construction of the Proposed Development would comply with Council’s permissible site discharge controls in section 4.2 of SMP.

  1. During the hearing:

  1. the Applicant’s expert Mr Leung had confirmed that, based on his calculation, the Applicant’s proposed OSD system, within its revised concept stormwater plan, would maintain or reduce stormwater flows off site for events down to and including the once every 3 month event;

  2. the Respondent’s expert, Mr Rajathuri:

  1. stated that, while the Applicant’s stormwater management system may reduce flows to the adjoining property in some of the larger stormwater events, he was not satisfied that stormwater flows generated from more frequent, smaller, events would be reduced owing to the proposed increase to impervious surfaces that would result from the Proposed Development, as amended.

  2. agreed, in response to questions from the Applicant, that:

  1. the Council’s SMP does not require modelling of smaller daily stormwater events;

  2. there is no possibility for the Applicant to connect its Proposed Development to the Council’s stormwater system;

  3. section 3.4.2 of Council’s SMP permits disposal of stormwater to the rear of a property where a direct connection to Council’s stormwater system is not possible;

  4. the objective of Council’s SMP in section 3 for the disposal of stormwater, as well as the objective of section A4.10 of FDCP, is to reduce environmental and property damage, and is not to require no impacts;

  5. the Applicant’s expert’s calculations concerning the performance of its proposed OSD system had been done “perfectly”;

  6. all stormwater flows from impervious areas within the Proposed Development, as amended, would flow into the OSD system;

  7. the level spreaders proposed by the Applicant were located within 6m of the boundary of the Subject Site, and at the site’s low point.

  1. In closing the Applicant submitted that:

  1. notwithstanding the evidence of Mr Rajathuri in relation to smaller daily flows that may arise from rainfall events of around 5mm, the Applicant’s expert Mr Leung had undertaken all the calculations required under the Council’s SMP, and had concluded that the Proposed Development, as amended, would have no significant impact, and would not give rise to environmental damage to the adjoining property at 163 Walworth Road;

  2. the Applicant’s Proposed Development, as amended, would result in reduced stormwater flows onto the adjoining property and so would reduce environmental and property damage, consistent with the objectives of section 3.4.2 of the SMP and section A4.10 of FDCP; and

  3. while not a methodology envisaged under the provisions of section 3.4.2 of the Council’s SMP, the Applicant’s concept stormwater management plan represented a reasonable alternative solution that merited the application of the control as it achieved the objectives of the control, consistent with the provisions of s 4.15(3A)(b) of the EP&A Act.

  1. The Respondent submitted that:

  1. the provisions of cl 6.9 of FLEP required that the consent authority, or the Court on appeal, must form a positive opinion in relation to the provision of essential services including in relation to stormwater drainage or on site conservation;

  2. the provisions of section 3.5.2 of Council’s SMP required, inter alia, that when designing a development, the following issues should be addressed:

  1. any development shall not concentrate the overland flow of stormwater onto an adjoining property;

  2. a person has a common-law obligation not to carry out any work on their property that will adversely affect adjoining properties.

  3. developments that have an adverse impact on adjoining/surrounding properties in relation to the above issues will not be approved.

  1. the Applicant’s revised concept stormwater management plan was unacceptable noting that, notwithstanding that it may provide a reduction in impacts to the adjoining downstream property in larger storm events, it would give rise to adverse impacts arsing from the smaller, but more frequent, rain events;

  2. the Applicant’s Proposed Development, as amended:

  1. did not represent a reasonable alternative solution to the relevant controls concerning stormwater management and did not merit flexibility in the application of the controls in sections 3.4.2 and 3.5.2 of Council’s SMP; and so

  1. did not satisfy the provisions of cl 6.9 of FLEP concerning the provision of essential services, notably in relation to stormwater drainage.

  1. Having considered the evidence of the Parties’ expert stormwater engineers, Mr Leung and Mr Rajathuri, along with the submissions of the Parties, I have concluded that:

  1. I accept that the Applicant’s stormwater engineer, Mr Leung, has undertaken the calculations concerning stormwater drainage, the performance of the proposed revised OSD system within the Proposed Development, and the potential impacts of the development in a manner consistent with provisions of Council’s SMP;

  2. while the evidence of Mr Rajahuri, that the flows arising from the more frequent smaller rainfalls events of 5mm or less may increase as a consequence of the Proposed Development, as amended, I am satisfied that these events are not required to be modelled under Council’s SMP, which is the relevant policy basis for assessment of the Applicant’s proposal under the provisions of FLEP and FDCP;

  3. I agree with the submission of the Applicant, for the reasons provided by it, relying on the evidence of Mr Leung, that, under the provisions of Council’s SMP, the Proposed Development, as amended, would reduce environmental and property damage, and so is a reasonable alternative that achieves the objectives of Council’s SMP and the provisions of section 3 of FDCP, and merits flexibility in the application of the controls in section 3 of FDCP, including those in sections 3.4.2 and 3.5.2;

  4. the Proposed Development is consistent with the provisions of cl 6.9 of FLEP and does include the provision of essential services concerning stormwater drainage and onsite conservation.

  1. I further conclude that the potential impacts of the Applicant’s proposed methods for disposal of stormwater from the Proposed Development, as amended, are acceptable, and do not provide a reason for refusal of the Applicant’s development application.

Are the potential acoustic impacts of the Proposed Development acceptable given the Applicant’s assumptions concerning the split in active and passive play undertaken by children?

  1. The Respondent had contended that the Proposed Development, as amended, was not consistent with the provisions of clause 3.5 of the Guideline and section 13.1.8 of FDCP, both of which concern the assessment and mitigation of visual and acoustic privacy in relation to child care centres.

  2. More specifically, the Respondent had submitted the Applicant had not demonstrated that the outdoor play area noise levels would not exceed the relevant noise assessment criteria applicable to the Proposed Development.

  3. As noted previously in this judgment, the Parties’ planners had agreed that the fence along the southern boundary of the Subject Site, previously proposed to be of a Colorbond type fence, should be a treated timber fence, and the Parties’ acoustic experts agreed that this was an acceptable form of fence in terms of acoustic performance,

  4. Within their joint report, the Parties’ acoustic experts, Mr Cooper for the Applicant, and Mr Shearer, for the Respondent, observed that:

  1. the basis for assessment of acoustic impacts of the Proposed Development, as amended, is the Guideline for Child Care Centre Acoustic Assessment produced by the Association of Australasian Acoustical Consultants (AAAC guideline); and

  2. the design target for noise emitted from outdoor play areas from the AAAC guideline is either:

  1. background plus 5dB(A) for play during the entire day; or

  2. background plus 10dB(A) for a reduced time period of play per day of no more than 4 hours per day.

  1. The Applicant provided advice received from its acoustic consultant, Koikos Acoustics Pty Ltd, including the following requirements:

  1. staggered use of the outdoor play areas for all children so that no more than half of the children are outside at any one time;

  2. half of all children in outdoor play areas should be engaged in passive/education play at all times;

  3. the total use of the outdoor play areas should not exceed two hours in the morning and a further 2 hours in the afternoon; and

  4. no more than 25 children aged 3 to 6 years should occupy outdoor play area 1 at any one time;

  5. no more than 13 children aged 2 to 3 years shall occupy outdoor play area 2 at any one time;

  6. no more than 14 children aged 0 to 2 years shall occupy outdoor play area 2 at any one time.

  1. Koikos Acoustics Pty Ltd had also undertaken further noise logging to confirm that the applicable background noise level for assessment of the child care centre impacts was 41dB(A), and the Parties’ experts considered that this was an appropriate background noise level, notwithstanding a certain difference of views in relation to the exclusion of certain logger data on two dates. Concerning these data points, Mr Cooper agreed that their exclusion was appropriate on the basis of a provision of section B1.3 of the Noise Policy for Industry which recommends removal of any data that is affected by adverse weather conditions and/or extraneous noise.

  2. Having considered the data within the Koikos reporting, the evidence of the experts, and noting the comment from Mr Shearer that he agreed that a background of 40 or 41 dB(A) was likely to be correct, and Mr Cooper’s evidence that the Court could have comfort that 41 dB(A) was acceptable as a background level, I am satisfied that this is an acceptable background noise level for the purposes of assessing the Proposed Development, as amended.

  3. Further, noting that the Applicant proposes that use of the outdoor play areas would be restricted to no more than 2 hours in the morning period and two hours in the afternoon period, for a total of no more than 4 hours use of these areas during the day, I am satisfied that the appropriate level for assessing potential noise impacts on adjoining properties, is 51dB(A).

  4. The experts confirmed during the hearing that:

  1. the most sensitive receptor for the purposes of assessing the acceptability of the Proposed Development, as amended, was receptor R3a, located at the ground level of the residential boundary to the north of outdoor play area 2;

  2. Koikos Acoustics Pty Ltd, in its acoustic assessment report, had calculated that, on the basis of managing outdoor play areas consistent with the recommendations identified above (at [88]), the calculated noise level at receptor R3a would be a LAeq, 15 min of 50dB(A).

  1. In closing, the Applicant submitted that on the basis of adopting a background noise level of 41dB(A), and relying on the acoustic modelling undertaken by its acoustic consultant, Koikos Acoustics Pty Ltd, the Court could be satisfied that, together with its proposed management of outdoor play areas consistent with the Koikos recommendations above (at [88]), the Proposed Development, as amended, complies with the applicable noise assessment criteria.

  2. The Respondent submitted that:

  1. while it acknowledged that the noise assessment criteria for the development could be met, it considered the contention not settled, as it viewed the Applicant’s proposed plan of management as being difficult to enforce; and

  2. it further submitted that because active and passive play were not clearly defined, it would be difficult for those supervising the children in the outdoor play areas to manage effectively the type of play undertaken by children in those spaces.

  1. Having considered the evidence of the acoustic experts, Mr Cooper and Mr Shearer, and the Parties’ submissions, I am satisfied that:

  1. the potential acoustic impacts of the Proposed Development, as amended, are acceptable; and

  2. the Applicant’s proposed plan of management is capable of being finalised, either by direction or through the imposition of conditions of consent, such that it would provide a suitable basis for the effective management of noise generated by children using the outdoor play areas within the Proposed Development; and

  3. the Proposed Development, as amended, is acceptable in terms of the considerations concerning acoustic privacy in both section 3.5 of the Guideline, and the relevant provisions of FDCP;

  4. the potential acoustic impacts of the Proposed Development, as amended, including those arising from the use of outdoor play areas, would not provide a reason to refuse the Applicant’s development application.

Conclusions

  1. For reasons provided above (at [67]) in relation to the Respondent’s contentions concerning character and levels of fill, and notwithstanding my conclusions concerning contentions relating to stormwater and acoustics, I conclude that approval of the Applicant’s development application DA396.1/2020 is not in the public interest and it should not be subject to the grant of consent.

Orders

  1. The orders of the Court are:

  1. the Applicant is granted leave to rely on amended plans in the proceedings;

  2. the Applicant is to pay the Respondent’s costs thrown away in dealing with the Applicant’s amended plans, as agreed or assessed, pursuant to the provisions of s 8.15(3) of the Environmental Planning and Assessment Act 1979;

  3. the appeal is dismissed;

  4. Development Application DA396.1/2020 seeking consent for demolition of existing structures and construction of a 103 place child care centre with ancillary works at 157 to 161 Walworth Road, Horsley Park, is determined by way of refusal;

  5. the exhibits are returned, with the exception of Exhibits A, B, C, 1 and 12.

..………………………..

M Chilcott

Commissioner of the Court

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Decision last updated: 04 October 2022

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BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399