Entrepreneur Enterprises Pty Ltd v Lane Cove Council

[2020] NSWLEC 1572

Land and Environment Court

New South Wales

Medium Neutral Citation:

Entrepreneur Enterprises Pty Ltd v Lane Cove Council [2020] NSWLEC 1572

Hearing dates:

2 and 3 November 2020

Date of orders:

20 November 2020

Decision date:

20 November 2020

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) The modification application lodged with Lane Cove Council on 8 May 2019 that sought to modify development consent DA 148/2015 by increasing the number of child care places from 56 to 93 is refused.

(3) The exhibits, other than exhibits 1, A and E, are returned.

Catchwords:

MODIFICATION APPLICATION – modification of consent – child care centre – number of children

Legislation Cited:

Environmental Planning and Assessment Act 1979

Lane Cove Local Environmental Plan 2009

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

Cases Cited:

Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

Texts Cited:

Building Code of Australia

Childcare Planning Guidelines 2017

Lane Cove Development Control Plan 2010

Category:

Principal judgment

Parties:

Entrepreneur Enterprises Pty Ltd (Applicant)
Lane Cove Council (Respondent)

Representation:

Counsel:
R O’Gorman Hughes (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Shaw Reynolds Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/220493

Publication restriction:

No

Judgment

1. Jenny’s Kindergarten Pty Limited lodged an application with Lane Cove Council which sought to modify development consent No. DA148/15 issued on 9 June 2016 following an agreement made at a conciliation conference in the Court. That Consent permitted the construction of a child care centre on land known as No. 30 – 30A Landers Rd, Lane Cove North. In particular the application sought to increase the number of children that can be cared for at the facility from 56 to 93. The Council had refused to modify the consent and this application is appealing that decision pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act).

2. The contentions in the case are whether the development as modified would be substantially the same as that approved under the original consent, whether parking available on site is adequate to cater for the needs of staff and visitors to the child care centre and whether the amenity impacts of the development will adversely affect both children within the centre and adjoining properties.

Background

3. The current development consent allows operation of the child care centre with a maximum of 56 children. Parking for 19 cars is available within a basement carpark of which 11 spaces were allocated for the drop off and pick up of children (Condition 12).

4. Condition 3 of that consent reads as follows:

“The maximum number of children in the child care centre must not exceed 56 at any time made up of the following ages:

0 to 2 years of age:   maximum of 28 children

2 to 3 years of age:    maximum of 10 children

3 to 5 years of age:    maximum of 18 children”

5. The evidence is that the centre, since opening has been staffed by between 13 and 15 persons.

6. The Council submits that the history of the original development application, subject to the conciliation agreement and Court Order is a relevant consideration in this matter, in particular, that the application had proposed a child care centre for 116 children and 29 car parking spaces.

The proposal

7. The application seeks modification of the consent pursuant to the provisions of s 4.56 of the EP&A Act. The application as originally lodged included a proposal to construct a drop off and pick up zone within Coxs Lane, a narrow roadway that adjoins the site to its immediate east, and the installation of additional signage. Both of these aspects of the application have now been withdrawn.

8. The application before the Court seeks to modify the development consent to provide for an increase to the number of children accommodated by the child care centre from 56 to 93. Whilst no change is proposed to the physical configuration of the basement carpark, the allocation of the 19 car parking spaces has been amended throughout the time the appeal has been on foot from providing 6 staff car parking spaces and 13 visitor spaces to the current proposal of 16 visitor spaces and 3 staff spaces.

9. No other physical alterations or additions to the existing childcare centre or amendments to its hours of operation were proposed under the modification as lodged however, as a result of the expert reporting, certain acoustic measures have been recommended that would address acoustic issues and alter the appearance of the building through the construction of perspex walls around the existing play areas.

The site and locality

10. The site is located on the southwestern corner of Landers Rd and Coxs Lane and contains a 3 level child care centre erected over a basement carpark which is accessed off Coxs Lane.

11. Residential flat buildings are located to the east and west of the site with low density one and two storey dwellings on the northern side of Landers Rd due to the change in zoning from high to low density residential. Epping Rd, a major arterial roadway, is located to the immediate south of the site.

Planning controls

12. The site is situated within Zone R4 High Density Residential pursuant to the provisions of Lane Cove Local Environmental Plan 2009 (LEP). State Environmental Planning Policy (Educational Establishments and Child Care Centre Facilities) 2017 (SEPP 2017) and the associated Childcare Planning Guidelines 2017 apply to development applications for child care centres. These provisions must be considered in the assessment of the modification application pursuant to the provisions of s 4.55(3) of the EP&A Act.

13. Lane Cove Development Control Plan 2010 (DCP) is also a document relevant to the application with particular reference to the car parking provisions that apply to the site. That is because SEPP 2017 calls up parking provisions detailed within a DCP that applies to the land. Applying the DCP provisions on the basis of 93 children and 17 staff, a total of 28 parking spaces are required, 19 drop off and 9 staff spaces. The parking rate is 1 space per 2 employees and 1 short term drop off space per 5 children with the number of spaces rounded up. The Court notes that support staff have not been included in the parking calculations in evidence.

The contentions 

14. The contentions in the case are detailed in the Council's Statement of Facts and Contentions filed on 5 September 2019. A number of those contentions are no longer pressed due to the deletion of the proposed road works within Coxs Lane and the additional signage that was to be attached to the building. 

15. Those contentions that remain are: 

• the development is not substantially the same as required by s 4.56(1)(a) of the EP&A Act; 

• inadequate onsite car parking is provided to accommodate the proposed increase in children and staff which will result in unacceptable traffic impacts;

• the development will not maintain or protect the residential amenity and character of adjoining and surrounding residential development;

• the development as proposed to be modified is not suitable for the site having regard to the adverse impact that the proposed intensification of the existing use will have on visitors, and adjoining and surrounding residential properties;

• the development as proposed to be modified is contrary to the aims of the LEP and the objectives for development in Zone R4 and is therefore not in the public interest. 

The evidence 

16. The hearing commenced on the site of the proposed development and included observation of the existing internal and external play areas and the recent changes the Council had made to parking controls in Coxs Lane. That change has removed unrestricted parking spaces and the area along the western side of Coxs Lane is now designated as No Stopping so that it is no longer possible to legally park anywhere along that roadway south of Landers Rd.

17. The Court’s attention was also drawn to parking restrictions along the southern side of Landers Rd which provide for two hour parking, other than with a resident permit, and on the northern side which is also a No Stopping zone and the location of bus stops in close proximity to the site along Epping Rd. The removal of the parking spaces in Coxs Lane has resulted in the loss of five parking spaces according to evidence provided.

18. During the inspection the parties observed one child being dropped off at the centre. A car driver dropped off its passenger and child at the northern end of Coxs Lane and preceded to turn around utilising the driveway to the centre and the adjacent residential flat building so as to return back along Coxs Lane where he collected the passenger after she had dropped off their child. At that time the majority of visitor parking spaces within the basement were available for parking and drop off.

19. Expert evidence was heard from:

Traffic

20. The traffic experts agree that the survey data collected by Mr Lo and on site observations undertaken by both indicate the majority of drop off parking for the child care centre demands occurs on Landers Rd/Coxs Lane in the morning, even when there is spare capacity in the centre basement car park. In the afternoon, approximately half of the pickup parking demands occurs on Landers Rd/Coxs Lane, with the remaining half occurring in the basement carpark. 

21. They agree that 5-6pm is a suitable basis for assessing the centre’s peak visitor (drop off/pick-up) demand, due to a higher proportion of pickup movements and longer dwell time in the car park. 

22. They also agree that the provision of 16 visitor spaces for the proposed development is acceptable and has regard for Clause 3.8 of the Child Care Planning Guidelines, clauses 2.2 and 2.12 of the DCP Part R and clause I-10 off the DCP Part I. Whilst the latest survey of users demonstrates a peak visitor parking demand of 14 spaces, the experts agree that the allocation of a further two spaces is an appropriate approach which accounts for visitors travel mode variation as shown in the 2019 and 2020 survey results including the original and updated traffic reports and seasonal and weather conditions. Mr Corbett says these spaces would also be required to account for fluctuations in visitor parking demand as a result of the increased number of childcare places which is likely to result in an increased catchment area for the centre with more families residing outside of the catchment. Such families would likely drive to the centre consistent with the catchment map shown on page 8 of the updated traffic report which would result in an increased percentage of car drivers.

23. The experts agree that the implementation of the following measures (which could be appropriately conditioned) may assist in encouraging more visitors to use the basement carpark:

• the roller shutter is to remain open at all times during the peak drop-off/ pick up times i.e. 6.45am-10am and 3-6pm. 

• Removal of the existing column and intercom that is positioned in the centre of the driveway which currently results in non-compliant entry and exit lane widths, and impedes the efficiency of the vehicle access. To ensure that the roller shutter can be operated outside of the above peak hours, and intercom is to be provided on the egress side of the driveway. 

• The implementation of a set down and pick up via basement car parking only restriction by the centre. This restriction is to be reflected and communicated to the parents in an enrolment package. The implementation of the restriction is to also involve regular issuance of newsletters and emails by the centre’s management to inform parents of any identified misconduct and as an ongoing reminder of the restrictions.

24. The experts do not agree on the provision of staff parking in the car park.  

25. Mr Corbett notes that a child care centre with 93 places and 17 staff would require a total of 28 car parking spaces (19 visitor spaces and 9 staff spaces) under the DCP requirements. As the development proposes to retain the existing 19 space car park with no change to the existing allocation, he says the development is deficient by 9 car spaces including 3 visitor spaces and 6 staff spaces. As the original traffic report showed a peak demand of 4 car parking spaces by staff, or 31% based on the 13 staff surveyed, and the updated traffic report also showing a peak demand of 4 car parking spaces or 33% based on the 12 staff surveyed including one staff member that does not usually drive to or from the centre he says this confirmed the existing staff demand of 4 spaces already exceeds the provision of 3 spaces as existing and proposed. 

26. He submits the percentage of staff driving to and from the centre will change in the future as a result of such things as staff turnover and changes in staff travel modes. For example, if one or even two staff members who currently use alternative modes of transport for journeys to and from the centre began to drive, the above car driver percentage would change to 46-54% or 42-50% depending on which traffic survey was applied. This closely aligns with the DCP staff parking rate off 50%. Such a minor change to staff travel modes would have a substantial impact as this additional staff parking demand would occur on street and result in the staff parking deficiency increasing from one space to two or three spaces. Having regard to the surveyed figures, Mr Corbett says that the development should provide staff car parking in accordance with the DCP rate of 1 space per two staff so 9 staff spaces should be available. The deficiency of six spaces will result in overspill of car parking onto the surrounding road network. 

27. He says that as staff would not be able to park along Landers Rd due to the two hour parking limitation and the demonstrated high demand for that parking, they would need to look for alternative parking which would be around 380 metres away in Parklands Avenue of Kara Street which permit unrestricted kerbside parking. As no survey had been done of this area, he considered it unreasonable for the parking demands of the centre to impact on that street parking as it would place further demand on the already limited availability of on-street parking and would displace local residents' vehicles and impact on their amenity.

28. Mr Corbett notes the reliance of six on-street parking spaces is a best case scenario and assumed that all visitor parking demands would be wholly accommodated on site under the proposed development. The existing development relies heavily on on-street parking particularly during the AM peak, with his observations being some 93% of visitors parking on-street instead of using the basement car park which had ample spare capacity at the time of his inspection on 21 October 2020. 

29. He noted that while the proposed management strategy by the centre is expected to assist in encouraging visitors to use the basement car park he is concerned that a considerable portion of visitors will instead continue to park on-street including within the no stopping zone at the intersection of Landers Road and Coxs Lane as presently occurs. Parking within that zone creates a substantial safety risk for all motorists and pedestrians at the intersection which he said is particularly concerning when adjacent to a child care centre. 

30. Mr Corbett noted that Mr Lo proposes the preparation of a Sustainable Travel and Access Plan (STrAP) but he says this is more appropriate for larger scale developments such as those referenced under clause 5.1 of the DCP Part R. Such a plan would be beneficial as a means of encouraging staff to use alternative modes of transport however he does not believe the plan would be sufficient to result in any material shift in staff travel modes toward alternative transport. It is also a risk in this particular instance as any overspill of staff parking onto the surrounding road network would significantly impact the already limited parking availability, and detrimentally impact neighbouring residents. 

31. Mr Lo relies on surveys conducted of staff driver rate and concludes that 25% of the proposed 17 employees are likely to drive to the premises which results in a projected demand of 4 spaces and therefore only one space deficient and not 6 as suggested by Mr Corbett. If the particular employee who does not normally drive to and from the centre is also included in this calculation then the projected demand would be 6 spaces, still considerably less than the nine spaces reflected by DCP standard.

32. Mr Lo cites the DCP provisions in clause 2.2 that contemplate a reduction in car parking  and clause 2.12 where such a reduction can be justified by a study. The terms of clause 2.12 are as follows: 

“Council may consider a reduction in parking requirements where a study justifies the assumption that staff and users of the centre will use public transport, or live or work within walking distance, or due to other circumstances on an individual site basis. Particular consideration will be given to centres with a high number of staff due to the provision of 0-2 year old spaces.”

33. Mr Lo says that there are realistic and comprehensive transport services in the form of 1 bus every 9 minutes on average which are accessible and available within only 60 metres of the site and the majority of staff members already do not drive to and from the centre, and this could be further reduced by the ongoing implementation of the STrAP that he proposes. Mr Lo says that Mr Corbett’s concern about staff utilising currently unrestricted parking spaces in Parklands Avenue and/or Kara Street could be addressed through the imposition of two hour restrictions in those streets.  

34. He says the purpose of the STrAP in the context of the development is to educate and inform the centre staff and future staff of the available and accessible transport options. It is also intended to identify suitable measures to motivate a shift away from reliance on private cars. Typical strategy e.g. full/partial subsidy of journey to and from work public transport costs and reserving the staff parking spaces for carpool participants only are common, practical and effective and can be incorporated in this case. The effectiveness of the STrAP is not measured by the scale of the development, but the relevance of its identified strategies and their ongoing promotion by the management. The proposed staff parking arrangement is a balanced approach which has regard for driving needs as well as the excellent and comprehensive bus services that are available via the Epping Rd stops, which are adjacent to the centre.

35. The existing operation, which is without any form of encouragement through initiative such as a STrAP, already has a quiet low driving rate amongst its workforce. As is the intent of such a travel plan for workplaces and residential complexes, it is expected that its implementation will continue to inform, encourage and affect behavioural change amongst staff members. For those reasons, Mr Lo is satisfied that the proposal in relation to staff parking demand has met the requirements and the objectives of Parts 2.2, 2.12 and 6.1 of the DCP.

36. The experts agree that it is appropriate to remove the existing column and intercom system that is located in the centre of the access driveway to the premises. The applicant proposes a condition, draft Condition 13B, to address that requirement.

37. The Council submits that little weight should be put on the most recent survey regarding staff travel modes as it was not conducted independently but rather by centre management. The veracity of the conclusions of Mr Lo utilising the basement CCTV video to assess staff parking demands was also challenged.

38. At the conclusion of the evidence, the experts agreed that 16 parking spaces for visitors should be required and the suggested management practices adopted. There was no agreement as to the number of staff parking spaces that should apply, Mr Corbett says 9 are required and therefore there is a deficiency of 6 and Mr Lo says that 3 are sufficient when combined with the STrAP initiatives. The Court notes that no such plan was proffered as part of the application.

Town Planning

39. The planning experts agree that the site is suitable for a child care centre and that the key issue is whether the increased numbers of children result in unreasonable impacts by way of noise, traffic or on-street parking. At the time of writing their reports, they were of the view that the increase in numbers does not result in a change to the use of the building, the appearance of the building, or how the building sits within the streetscape. They defer to the evidence of the traffic and acoustic experts regarding to whether their proposal will result in any unreasonable acoustic, traffic or parking impacts.

40. In cross examination they were told that the recommendations of the acoustic consultants involved the erection of Perspex screens in various locations around the site including on top of existing boundary fences and as infills above the balustrades to the actual play areas on levels one and two. Mr Minto considered that the Perspex material would be satisfactory and not have any adverse streetscape impacts however Mr Apps considered that the design of the building, with its modulation and depth through the use of balconies, would be adversely affected. Once those balcony areas are enclosed, even with Perspex, it's reflective nature and need for regular cleaning would detract from the appearance of the building and those infills would read as windows which he considered to be undesirable.

41. Neither of the experts could advise the Court whether or not the enclosure of the space as proposed by the acoustic consultants would still be classified as outdoor play areas. Mr Minto says that they may become simulated outdoor play spaces which may require Departmental concurrence for the continued operation of the centre (Emphasis added). He considered the use of the area would be diminished and the amenity detrimentally affected through the enclosure of those spaces and Mr Apps concurred with that opinion.

42. Neither expert could assist the Court on whether the enclosure of these areas would affect the natural light and ventilation of the centre and therefore its compliance with the National Construction Code.

43. The planning experts agree that one of the ways in order for the proposed modification to be deemed substantially the same development is if the environmental impacts, in this case traffic, parking and acoustics, are deemed to be substantially the same as the originally approved development. Unless a view that the proposal will not result in any such unreasonable impacts and be formed, it would not be possible to form a view that approval of the development would be in the public interest.

Acoustics

44. The first Joint Report of the acoustic expert's, exhibit 6, highlighted areas of disagreement between the two experts. The differences were discussed during the site view and it was agreed, to assist the Court, that further joint conferencing occur in an attempt to narrow the issues between the parties. This conferencing occurred and a further report, Supplementary Joint Acoustic Report formed exhibit 10.

45. It is common ground that the increase in the number of children will increase the noise that emanates from the centre. Based on the existing background noise, the operation of the centre with 93 children in attendance and playing in the outdoor play areas in an unrestricted manner, as is currently the case, would result in exceedances of the relevant noise criteria.

46. To address those impacts, the applicant’s acoustic expert, Mr Stevens, recommends that acoustic barriers be installed around the perimeter of those play areas and that acoustic absorptive panels be installed to the ceilings of some of those play areas. The extent of work detailed is as follows:

Ground Floor	1.5m long Perspex angled at 45 degrees on top of the existing western boundary wall of the northern play area;
1.5m long Perspex angled at 45 degrees on top of the existing eastern boundary wall of the northern play area;
Perspex infill to panels on the northern boundary wall to Landers Road to a height of 1.4m where the solid wall does not reach that height;
Western wall of south western play area to be increased in height to 3.5m;
1.5m high Perspex (above floor level) to be installed around the external walls (east and south) of the south eastern play area.
First Floor	Installation of a full height Perspex barrier from the top of the existing wall to the ceiling of the northern play area;
installation of acoustic absorptive panels to the underside of the ceilings to both play areas.
Second Floor	Installation of acoustic absorptive panels to the underside of the ceiling to the northern play area;
installation of full height Perspex barrier from the top of the existing wall to the ceiling of the play area along the eastern side of the play area.

47. It was agreed that the increased height of the ground floor wall will impact two existing trees. The applicant proposes the relocation or replacement of those trees whereas the Council opposes the works due to the impact and lack of information on the trees and subsequent impact on the streetscape.

48. In addition to the installation of those barriers, it is necessary to restrict the number of children that use those play areas at any one time. Those restrictions are, according to the applicant, as follows:

The number of children in the outdoor play areas is to be limited as follows:

a) No more than 8 children are allowed at any one time in the ground floor north and west play area;

b) No more than 6 children are allowed at any one time in the ground floor south eastern play area;

c) No more than 6 children are allowed at any one time in the south play area on level 1

d) No more than 10 children are allowed at any one time in the north play area on level 1;

e) No more than 15 children are allowed at any one time in the north play area on level 2.

49. The Council opposes the wording of the condition having regard to the most recent acoustic report and evidence provided during the hearing and says, if the consent is to be modified, the following wording should apply:

The number and ages of children in the outdoor play areas at any one time is to be limited

as follows:

a) Four 0-2 year old children in the northern ground floor outdoor play area;

b) Four 0-2 year old children in the western ground floor outdoor play area;

c) Three 0-2 year old children in the south eastern ground floor outdoor play area;

d) Four 2-3 year old children in the southern outdoor play area on level 1;

e) Ten 3-4 year old children in the northern outdoor play area on level 1;

f) Fifteen 4-5 year old children in the northern outdoor play area on level 2.

50. Mr Gauld acknowledges that the application does not alter the number or age groups of children that would utilise the ground floor rooms. Currently, the existing consent provides for 16 children aged between 0 and 2 to be accommodated in the northern room and 12 0-2 year olds in the southern room. Therefore, he concedes that the proposed barriers to be installed to the outdoor play areas that service those areas will improve the noise impacts from those areas.

51. Both experts agree, that subject to the construction of the proposed acoustic fences and ceilings and implementation of the proposed management practices of limiting the number of children to play within each individual outdoor play area at any one time to that detailed at [48] above, the proposal would comply with the relevant noise standards.

52. The Council raised the issue of traffic noise from Epping Rd and any potential amenity impacts to children using those play areas that open towards that road. Both experts agree that the existing consent did not constrain the use of that area and that no amelioration measures were required when that consent was granted. Mr Stevens says that it is likely, with the installation of the absorptive ceilings that the areas together with the existing wall heights, would be compliant or perform better than the existing situation. Mr Gauld says there is no evidence to support this view.

Conclusion and findings

53. For the consent to be modified, I must be satisfied, pursuant to the provisions of s 4.55(1A) of the EP&A Act, of a number of matters. That section is in the following form:

Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the proposed modification is of minimal environmental impact, and

(b)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

54. As required by subcl (a), the first test is that the proposed modification must be of minimal environmental impact. Having regard to the evidence, I am not so satisfied. That is because I accept the evidence of the Council’s traffic expert, that the development will result in an adverse impact on traffic and parking within the vicinity of the site and accordingly, that impact will not be minimal. I cannot be satisfied, based on the lack of independence, by the staff car usage survey, that the proposed three staff spaces within the basement will be adequate for the additional and future parking needs if the number of children were increased.

55. As submitted by Mr Corbett, the travel mode of staff is dynamic and therefore subject to change over time and I do not have sufficient evidence that the number of spaces to be provided if the consent were to be modified would be adequate. The impact of the lack of parking could not be considered to be a minor impact as there is already a high demand for on-street parking and it is unreasonable that the impact from the site would result in loss of all day parking some 380m from the site. Again, there is not sufficient evidence of the availability or otherwise of parking in that area and I consider Mr Lo’s suggestion of introducing timed parking restrictions to either Parklands Avenue or Kara Street would have a significant impact on the amenity of that area.

56. The evidence is that the majority of parents already utilise parking and at times park illegally in Landers Rd adversely impacting traffic flow and creating a safety risk. The failure of parents using the available drop off areas was witnessed during the site view.

57. In terms of noise, I am satisfied that this issue could be managed through the provision of the acoustic treatment proposed by the applicant.

58. In terms of streetscape, I prefer the evidence of Mr Apps and concur that the addition of the proposed Perspex angled screens will detrimentally affect the streetscape and, I consider will be out of character with development in the locality.

59. The second test is to establish whether the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all).

60. As stated above, the consent granted by the Court was in accordance with an agreement between the parties made at a conciliation conference. Whilst I had presided over that conference and was therefore aware of the discussions held in relation to the contentions of the case, I was not required to consider the merits of the application. Nor was I aware of the reason that the Council decided to enter into that agreement. The Council submits the background to the grant of the consent and a further modification that it approved on 25 November 2016 that amended the internal layout of the centre to meet requirements of the Building Code of Australia (BCA) are relevant to my determination of the question. I do not accept that submission.

61. The agreement entered into between the parties was one that amended the design of the building form that originally proposed as well as reduced the number of children to be cared for and the number of parking spaces proposed. Why those plans were acceptable to the Council was not a matter for my consideration at the time, nor was I made aware of those reasons. I was only required to consider whether the agreement reached was one that could be made in the proper exercise of the Court’s functions. In those circumstances, and having regard to my Judgment, it is not possible to identify whether there were any “essential element” as discussed by Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 that would, in this case, guide my consideration of the test.

62. As guided by Bignold J, at [55]-[56] and [58]:

“The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is ‘essentially or materially’ the same as the (currently) approved development.

The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).

Qualitatively appreciated, that difference is in respect of material and essential features of the approved development, that materiality involving the importance attributed to the physical features of the approved development sought to be modified.”

63. The test requires a comparison between the consent as it would be if modified and that which was originally granted.

64. The original consent provided for the construction of a 56 place child care centre with 19 car parking spaces provided within the basement. The consent as proposed to be modified would accommodate 93 children and no increase in the number of parking spaces. The evidence in staff number varies with either 13 or 15 persons employed on site. The modification application proposes 17 staff plus 2 ancillary staff omitted from the parking calculations and assessment. Quantitively, that is a 66% increase in the number of children and around a 30% increase in the number of staff.

65. The number of staff parking spaces are reduced from 6 to 3 so the ratio of spaces is also reduced from 1 per 2 (compliant with the DCP) to 1 per 6. Similarly, despite increasing the number of spaces allocated to visitors, the ratio of visitor spaces drops from 1 /4.7 to 1/5.8 children. The existing centre provides all of its parking needs (DCP) on site. The development as proposed does not and relies on on-street parking and the preparation of a STrAP, however, no such policy has been proffered.

66. Qualitatively, the child care centre would operate from the same building as approved under the current consent however, to meet the environmental impacts brought about by the increased number of children attending the centre, physical and operational changes are required.

67. The additional children using the facility require the installation of acoustic screens at various locations around the perimeter of the play areas to achieve acoustic guidelines. Those screens are readily visible from both adjoining premises and the public domain. Under the existing consent, the acoustic attenuation required is incorporated within the design of the existing building structure without the need for “add-on” type structures. Those structures would alter the appearance and character of the building with detrimental streetscape impacts. The existing building without those screens, is more in character with the high density residential area.

68. Additionally, children are currently able to play in the various play areas without restrictions on the number of children in those areas. The application, as sought to be modified, would introduce limitations on access to individual areas and on the number of children that could play in each area at any one time.

69. Those changes are significant changes in terms of building design, aesthetics, streetscape impact and operation of the centre. The planning experts concur this amenity of those areas would be detrimentally affected. It is unclear whether the enclosure of the outdoor play areas on the upper levels as proposed would still meet the definition of outdoor area or whether regulatory concessions would be required. No such concessions were required under the existing consent and all areas met the requirements of the guidelines.

70. Having made both the qualitative and quantitative assessments of the original consent and the consent as proposed to be modified as described above, I do not consider that the proposed development would be substantially the same as that approved under the original consent. That is because the development as modified would not be of the same essence or materially the same as it would require additional mitigation measure, result in off site impacts, alter the method of operation of the centre, in particular the way children can utilise the play areas and alter the character of the building and streetscape.

71. Those changes are such that the centre would no longer operate in the same manner, would require considerable alteration to management practice and children at the centre would be constrained from using the play areas they currently enjoy as well as being limited as to the time they can access those areas. I consider those changes to be significant and therefore not substantially the same as that provided for under the original consent.

72. I must also have regard to the submissions received by the Council when it notified the application as required under the terms of its DCP. I note the objectors raised issues of traffic, noise and parking that they say are already adversely impacting the enjoyment of their area. Whilst, based on the evidence of the experts, I accept that noise could be addressed, I am not satisfied the parking impacts of the increased number of children and staff are adequately addressed. I also note from both the site view and evidence of the traffic experts, that the usage of the site is having adverse impacts on the road system and available parking and regularly results in illegal parking along Landers Rd. The final draft Plan of Management filed by the applicant attempts to address this concern however cannot overcome the staff parking shortfall.

73. As the jurisdictional test imposed under s 4.55(1A) of the EP&A Act cannot be met, the application must fail.

Orders

74. The Court orders:

1. The appeal is dismissed.

2. The modification application lodged with Lane Cove Council on 8 May 2019 that sought to modify development consent DA 148/2015 by increasing the number of child care places from 56 to 93 is refused.

3. The exhibits, other than exhibits 1, A and E, are returned.

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S Morris

Acting Commissioner of the Court

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Decision last updated: 20 November 2020