Guo v Parramatta City Council

Case •

[2020] NSWLEC 1311

•

21 July 2020

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Guo v Parramatta City Council [2020] NSWLEC 1311
Hearing dates: 18-19 and 22 June 2020
Date of orders: 21 July 2020
Decision date: 21 July 2020
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the application and rely upon those amendments contained in, and arising from, the Exhibit S sketch subject to the Applicant paying the Respondent’s costs thrown away as a result of the amendment as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2)   The appeal is upheld.

(3)   Development consent is granted for Development Application No. DA/745/2018 for site consolidation, demolition works, tree removal and construction of a 53 place child care centre with basement car parking at 21-23 Norfolk Road, Epping, subject to conditions of consent in Annexure ‘A’.

(4)   All Exhibits are returned except for Exhibits R, S, T and W.

Catchwords:

DEVELOPMENT APPLICATION – Centre-based child care in R2 Low Density Residential zone – East Epping Heritage Conservation Area – flood planning – consideration of public submissions

Legislation Cited:

Education and Care Services National Regulations

Environmental Planning and Assessment Act 1979

Hornsby Local Environmental Plan 2013

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

Cases Cited:

Cachia v Manly Council (No 2) [2009] NSWLEC 1107

Coshott v Woollahra Council [1996] NSW LEC 256

Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45; [2009] NSWLEC 153

New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154

Texts Cited:

Hornsby Development Control Plan 2013

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’

NSW Child Care Planning Guideline 2017

NSW Environment Protection Authority, Noise Policy for Industrial

Category:Principal judgment
Parties: Ya Xin Anna Guo (Applicant)
Parramatta City Council (Respondent)
Representation:

Counsel:
A Hemmings (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Apex Planning & Environment Law (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2019/43140
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by the Parramatta Local Planning Panel on behalf of Parramatta City Council (the Respondent) of Development Application No. DA/745/2018 (the application) for the site consolidation, demolition works, tree removal and construction of a 53 place child care centre with basement car parking at 21-23 Norfolk Road, Epping (the site).

  2. On 17 March 2020, the Applicant was granted leave to amend the development application and rely upon amended plans and documents. The amendments resulting from the amended plans may be summarised as follows:

  • Revised architectural design providing a 7m separation between the retained structure and new work

  • Increased number of trees retained

  • Increased setbacks from rear to outdoor play area;

  • Reduced encroachment into the front setback;

  • Revised acoustic treatment and landscape details.

  1. At the commencement of the hearing, the Applicant sought leave to further amend the application and rely upon amended plans that result from the joint conferencing between the experts, and that are considered by the parties to resolve, or be likely to resolve, a number of the contentions contained in the Amended Statement of Facts and Contentions (Exhibit 1) and which the Respondent considers minor.

  2. The Court granted leave to further amended Stormwater plans, marked Exhibit T. However for reasons set out later, other plans were not entered as evidence on the first day.

  3. In narrowing the contentions, the parties were assisted by the following experts who, following joint conferencing where stated, prepared expert reports that recorded the areas of agreement:

  • Flooding: Ms Louise Collier (for the Respondent) and Mr Drew Bewsher (for the Applicant) prepared joint expert report marked Exhibit 10, and supplementary report marked Exhibit 11.

  • Traffic: Mr Behzad Saleh (for the Respondent) and Mr Craig McLaren (for the Applicant) prepared joint expert report marked Exhibit 6 and supplementary report Exhibit L.

  • Landscape architecture: Mr Ryan Bollard (for the Respondent), and Mr Robert Frew (for the Applicant) prepared joint report marked Exhibit 5 and Mr Frew also contributed to Exhibit 8.

  • Child care: Ms Wendy Shepherd (for the Respondent) and Dr Brenda Abbey (for the Applicant) prepared joint expert report marked Exhibit 7 and two supplementary reports marked Exhibit 9 and Exhibit 13.

  • Acoustic advice provided by Mr Richard Haydon (for the Applicant), marked Exhibit J and a supplementary report marked Exhibit W.

  • Arboricultural advice provided by Mr Mark Kokot of Rain Tree consulting marked Exhibit K.

  1. Joint expert reports in respect of heritage and town planning were not prepared in advance of the proceedings as it is commonly held by the parties that the amended plans and proposed conditions of consent (Exhibit 14) resolve the pertinent matters set out in the report prepared by Council Officers for, and considered by, the Parramatta Local Planning on 19 February 2019.

  2. In the evolution of the hearing, the issues in dispute were broadly distilled into two kinds. Firstly, those matters raised by the public submissions are generally in respect of the likely environmental impacts of the development on traffic and acoustic privacy of adjoining properties. Whereas, the matters raised by the Respondent deal with the degree to which the development connects the children at the child care facility with the natural environment around them as required by the requirements of the Education and Care Services National Regulations (National Regulations), and the NSW Child Care Planning Guideline 2017.

The site and its context

  1. The site comprises two lots, being Lot 4 in DP 8487 known as 21 Norfolk Road, and Lot A in DP 371706 known as 23 Norfolk Road, Epping. When combined, the lots comprising the site present a frontage of 33.78m to Norfolk Road, and an approximate depth of 50.3m and a total area of 1,626.8m2.

  2. The site is currently occupied by two post-war single storey dwellings of brick and tile with a slope of 4.3m from the rear of the site towards Norfolk Road.

  3. As stated in Exhibit 1, the site is located in the upper reaches of the Terrys Creek catchment, which is a tributary of the Lane Cove River. A small open channel of 300mm in depth, and 500mm wide is located along the northern boundary of the site.

  4. A main sewer line traverses the northern boundary, and an open stormwater channel runs generally parallel to the northern boundary and it is commonly held that No 23 Norfolk Road is partially affected by flooding along the northern and eastern boundary.

  5. To the east of the site, located on the eastern side of Norfolk Road, is the Epping Public School which is listed for its local heritage significance in the Hornsby Local Environmental Plan 2013 (HLEP).

Public submissions

  1. On 19 November 2019, the matter was listed for a three-day hearing commencing on 18 June 2020. On 23 March 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) on the Court’s website.

  2. Consistent with the Pandemic Policy, the parties consented to the hearing proceeding by MS Teams, and for public submissions to be provided in writing prior to the hearing.

  3. It is helpful to state here that due to the evolution of the appeal, public submissions were received on the following occasions, including:

  1. In response to the notification of the original development application, between 7 November 2018 and 28 November 2018 (Exhibit 2, Tab 5).

  2. In response to the notification of the development application between 10 July 2019 and 31 July 2019 in respect of the Application for Review pursuant to s 8.3 of the EPA Act dated 21 June 2019 (Exhibit 2, Tab 25).

  3. In response to the notification of the amended plans for which leave was granted at [2], between 1 April 2020 and 21 April 2020 (Exhibit 2, Tab 32).

  4. In response to the invitation from the Respondent to residents to prepare submissions in writing for the purposes of the proceedings, in accordance with the Pandemic Policy (Exhibit 4).

  1. Public submissions may be summarised as follows:

  1. Existing on street parking is limited and will be worsened by the proposed development

  2. Traffic congestion and road safety may worsen and so have the effect of increasing the chance of accidents, placing pedestrian school children at risk

  3. Existing noise levels, from sources such as the Epping Public School and traffic on Norfolk Road will worsen in the local area, especially considering the location of the outdoor play area

  4. The proposed development includes the removal of large mature trees that will adversely impact on the extent of shade and privacy enjoyed by neighbours

  5. The outdoor play area is inadequate as it fails to provide sufficient area per child

  6. The proposed emergency evacuation plan and assembly area is inadequate as the assembly area is itself at risk of flooding

Planning framework

  1. As the proposed development is for a Centre-based child care facility, the application is made under the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP Child Care). The aims of the SEPP Child Care provide relevantly;

The aim of this Policy is to facilitate the effective delivery of educational establishments and early education and care facilities across the State by—

…

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

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

…

(g) ensuring that proponents of new developments or modified premises meet the applicable requirements of the National Quality Framework for early education and care services, and of the corresponding regime for State regulated education and care services, as part of the planning approval and development process, and

…

  1. Part 3 of the SEPP Child Care sets out specific development controls for early education and care facilities, including relevantly, at cl 23:

23 Centre-based child care facility—matters for consideration by consent authorities

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 of the SEPP Child Care sets out non-discretionary development standards in the following terms:

…

(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.

  1. Clause 26 has the effect of setting aside provisions in a development control plan that are relevant to the following:

(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).

…

  1. The provisions of National Regulations apply to a Centre-based child care facility. The terms relevant to the contentions at the centre of the dispute in respect of the area allowed for children are as follows:

107 Space requirements—indoor space

…

(2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 3.25 square metres of unencumbered indoor space.

and

108 Space requirements—outdoor space

…

(2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space.

  1. Clause 110 of the National Regulations sets out requirements for ventilation and natural light in the following terms:

110   Ventilation and natural light

The approved provider of an education and care service must ensure that the indoor spaces used by children at the education and care service premises—

(a)  are well ventilated; and

(b)  have adequate natural light; and

(c)  are maintained at a temperature that ensures the safety and wellbeing of children.

  1. The National Regulations sets out additional requirements for outdoor space which include:

113   Outdoor space—natural environment

The approved provider of a centre-based service must ensure that the outdoor spaces provided at the education and care service premises allow children to explore and experience the natural environment.

and

114   Outdoor space—shade

The approved provider of a centre-based service must ensure that outdoor spaces provided at the education and care service premises include adequate shaded areas to protect children from overexposure to ultraviolet radiation from the sun.

  1. The Child Care Planning Guideline (Guideline) referred to at [18] is a mandatory consideration that generally sets aside the provisions of a development control plan, except for controls relating to building height, rear and side setbacks and car parking rates.

  2. The Guideline contains design quality principles including, relevantly:

“Principle 3 - Adaptive learning spaces

Good facility design delivers high quality learning spaces and achieves a high level of amenity for children and staff, resulting in buildings and associated infrastructure that are fit-for-purpose, enjoyable and easy to use. This is achieved through site layout, building design, and learning spaces fit-out. Good design achieves a mix of inclusive learning spaces to cater for all students and different modes of learning. This includes appropriately designed physical spaces offering a variety of settings, technology and opportunities for interaction.

Principle 4- Sustainability

Sustainable design combines positive environmental, social and economic outcomes. This includes use of natural cross ventilation, sunlight and passive thermal design for ventilation, heating and cooling reducing reliance on technology and operation costs. Other elements include recycling and re-use of materials and waste, use of sustainable materials and deep soil zones for groundwater recharge and vegetation. Well-designed facilities are durable and embed resource efficiency into building and site design, resulting in less energy and water consumption, less generation of waste and air emissions and reduced operational costs.

Principle 5 - Landscape

Landscape and buildings should operate as an integrated and sustainable system, resulting in attractive developments with good amenity. A contextual fit of well-designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood. Well-designed landscapes make outdoor spaces assets for learning. This includes designing for diversity in function and use, age-appropriateness and amenity. Good landscape design enhances the development’s environmental performance by retaining positive natural features which contribute to the local context, co-ordinating water and soil management, solar access, micro-climate, tree canopy, habitat values and preserving green networks.

Principle 6 - Amenity

Good design positively influences internal and external amenity for children, staff and neighbours. Achieving good amenity contributes to positive learning environments and the well-being of students and staff. Good amenity combines appropriate and efficient indoor and outdoor learning spaces, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, service areas and ease of access for all age groups and degrees of mobility. Well-designed child care facilities provide comfortable, diverse and attractive spaces to learn, play and socialise.”

  1. In support of the design quality principles, the Guideline sets out matters for consideration in respect of:

“3.1 Site selection and location

Objective: To ensure that sites for child care facilities are appropriately located.

C3

A child care facility should be located:

• near compatible social uses such as schools and other educational establishments, parks and other public open space, community facilities, places of public worship

• near or within employment areas, town centres, business centres, shops

• with access to public transport including rail, buses, ferries

• in areas with pedestrian connectivity to the local community, businesses, shops, services and the like.

…

3.4 Landscaping

Objective: To provide landscape design that contributes to the streetscape and amenity.

C18

Appropriate planting should be provided along the boundary integrated with fencing. Screen planting should not be included in calculations of unencumbered outdoor space. Use the existing landscape where feasible to provide a high quality landscaped area by:

• reflecting and reinforcing the local context

• incorporating natural features of the site, such as trees, rocky outcrops and vegetation communities into landscaping.

…

3.5 Visual and acoustic privacy

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.

…

3.8 Traffic, parking and pedestrian circulation

Objective: To provide parking that satisfies the needs of users and demand generated by the centre.

C31

Off street car parking should be provided at the rates for child care facilities specified in a Development Control Plan that applies to the land.

Where a Development Control Plan does not specify car parking rates, off street car parking should be provided at the following rates:

Within 400 metres of a metropolitan train station:

• 1 space per 10 children

• 1 space per 2 staff. Staff parking may be stack or tandem parking with no more than 2 spaces in each tandem space.

In other areas:

• 1 space per 4 children.

A reduction in car parking rates may be considered where:

• the proposal is an adaptive re-use of a heritage item

• the site is in a B8 Metropolitan Zone or other high density business or residential zone

• the site is in proximity to high frequency and well connected public transport

• the site is co-located or in proximity to other uses where parking is appropriately provided (for example business centres, schools, public open space, car parks)

• there is sufficient on street parking available at appropriate times within proximity of the site.

…”

  1. Part 4 of the Guideline sets out the means by which the National Regulations are applied to development proposals, with specific regulations that apply to the internal and external physical environment matters, references related construction standards and design guidance on how the regulations may be met.

  2. Of particular relevance to the proposal, Part 4 provides, relevantly in respect of cl 110 of the National Regulations (see [21]):

“4.4 Ventilation and natural light

…

Design Guidance

Ventilation

Good ventilation can be achieved through a mixture of natural cross ventilation and air conditioning. Encouraging natural ventilation is the basis of sustainable design; however, there will be circumstances where mechanical ventilation will be essential to creating ambient temperatures within a facility. To achieve adequate natural ventilation, the design of the child care facilities must address the orientation of the building, the configuration of rooms and the external building envelope, with natural air flow generally reducing the deeper a building becomes. It is recommended that child care facilities ensure natural ventilation is available to each indoor activity room.

Natural light

Solar and daylight access reduces reliance on artificial lighting and heating, improves energy efficiency and creates comfortable learning environments through pleasant conditions. Natural light contributes to a sense of well-being, is important to the development of children and improves service outcomes.

Daylight and solar access changes with the time of day, seasons and weather conditions. When designing child care facilities consideration should be given to:

• providing windows facing different orientations

• using skylights as appropriate

• ceiling heights.

Designers should aim to minimise the need for artificial lighting during the day, especially in circumstances where room depth exceeds ceiling height by 2.5 times. It is recommended that ceiling heights be proportional to the room size, which can be achieved using raked ceilings and exposed trusses, creating a sense of space and visual interest.

…”

  1. Part 4 also provides, in respect of cl 108 of the National Regulations (see [21]), relevantly:

“4.9 Outdoor space requirements

…

Design Guidance

Calculating unencumbered space for outdoor areas should not include areas of dense hedges or plantings along boundaries which are designed for landscaping purposes and not for children’s play (refer to Figures 9 and 10).

When new equipment or storage areas are added to existing services, the potential impact on unencumbered space calculations and service approvals must be considered.

Verandahs as outdoor space Where a covered space such as a verandah is to be included in outdoor space it should:

• be open on at least one third of its perimeter

• have a clear height of 2.1 metres

• have a wall height of less than 1.4 metres where a wall with an opening forms the perimeter

• have adequate flooring and roofing

• be designed to provide adequate protection from the elements (refer to Figure 8).

…”

  1. Part 4 of the Guideline also provides, in respect of cl 113 of the National Regulations (see [23]), relevantly:

“4.10 Natural Environment

…

Design Guidance

Creating a natural environment to meet this regulation includes the use of natural features such as trees, sand and natural vegetation within the outdoor space.

Shrubs and trees selected for the play space must be safe for children. Avoid plant species that risk the health, safety and welfare of the facility’s occupants, such as those which:

• are known to be poisonous, produce toxins or have toxic leaves or berries

• have seed pods or stone fruit, attract bees, have thorns, spikes or prickly foliage or drop branches. The outdoor space should be designed to:

• provide a variety of experiences that facilitate the development of cognitive and physical skills, provide opportunities for social interaction and appreciation of the natural environment

• assist supervision and minimise opportunities for bullying and antisocial behaviour

• enhance outdoor learning, socialisation and recreation by positioning outdoor urban furniture and play equipment in configurations that facilitate interaction.”

  1. Part 4 of the Guideline also provides, in respect of cl 114 of the National Regulations (see [23]), relevantly:

“Design Guidance

Providing the correct balance of sunlight and shade to play areas is important for the health and well-being of children and staff. Combining built and natural shade will often be the best option.

Solar access

Controlled exposure to daylight for limited periods is essential as sunlight provides vitamin D which promotes healthy muscles, bones and overall wellbeing. Outdoor play areas should be provided with controlled solar access throughout the year. Outdoor play areas should:

• have year-round solar access to at least 30 per cent of the ground area, with no more than 60 per cent of the outdoor space covered.

• provide shade in the form of trees or built shade structures giving protection from ultraviolet radiation to at least 30 per cent of the outdoor play area

• have evenly distributed shade structures over different activity spaces.

Natural shade

Natural shade should be a major element in outdoor play areas. Trees with dense foliage and wide-spreading canopies provide the best protection. Existing stands of trees, particularly in rear setbacks, should be retained to provide shaded play areas. Species that suit local soil and climatic conditions and the character of the environment are recommended.

Dense shrubs can also provide shade. They should be planted around the site perimeter so they don’t obstruct supervision. Pruning shrubs on the underside may create shaded play nooks underneath.

Planting for shade and solar access is enhanced by:

• placing appropriately scaled trees near the eastern and western elevations

• providing a balance of evergreen and deciduous trees to give shade in summer and sunlight access in winter.

Built shade structures

Built structures providing effective shade include:

• permanent structures (pergolas, sails and verandahs)

• demountable shade (marquees and tents)

• adjustable systems (awnings)

• shade sails.

Shade structures should not create safety hazards. Support systems such as upright posts should be clearly visible with rounded edges or padding. Vertical barriers at the sides of shade structures should be designed to prevent children using them for climbing. Shade structures should allow adults to view and access the children’s play areas, with a recommended head clearance of 2.1 metres. The floor area underneath the structure should be of a sufficient size and shape to allow children to gather or play actively”

  1. Part 4 of the Guideline also provides, in respect of cl 104 of the National Regulations, relevantly:

“Design guidance

Fencing at child care facilities must provide a secure, safe environment for children and minimise access to dangerous areas. Fencing also needs to positively contribute to the visual amenity of the streetscape and surrounding area. In general, fencing around outdoor spaces should:

• prevent children climbing over, under or though fences

• prevent people outside the facility from gaining access by climbing over, under or through the fence

• not create a sense of enclosure.

Design considerations for side and rear boundary fences could include:

Figure 11 Heights and requirements for child care facility fencing.

• being made from solid prefinished metal, timber or masonry

• having a minimum height of 1.8 metres

• having no rails or elements for climbing higher than 150mm from the ground.

Fencing and gates should be designed to ensure adequate sightlines for vehicles and pedestrian safety in accordance with Australian Standards and Roads and Maritime Services Traffic Management Guidelines. Gates should be designed to prevent children leaving/entering unsupervised by use of childproof locking systems…”

Hornsby Local Environmental Plan 2013

  1. The site is located within the R2 Low Density Residential zone as identified in the HLEP. Centre-based child care facilities are permitted in the R2 zone with consent where consistent with the zone objectives, which are in the following terms:

Objectives of zone

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

  1. As the site is located within the East Epping Heritage Conservation Area (East Epping HCA), the provisions of cl 5.10 of the HLEP apply. Subclause (4) requires that the consent authority, or the Court on appeal, must, before granting consent in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. It is commonly held by the parties that amendments contained in the Exhibit R Plans does not adversely impact the East Epping HCA.

  2. The provisions of cl 6.3 of the HLEP apply as the site is at or below the flood planning level in accordance with subcl (2)(b) being defined as the 1:100 ARI level at subcl (5). It is the joint position of the stormwater experts that the onsite detention system is now designed to cater for a drowned outlet as a result of the 1:100 year ARI flood level as a result of the amended plans at Exhibit T.

  3. That said, the provisions of subcl (3) require the Court be satisfied of the following in order to enliven the power to grant consent:

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

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

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

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

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

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

The contentions are substantially resolved

  1. As summarised at [7], the contentions at the heart of this dispute relate to both the likely environmental impacts and the conformance of the proposal with child care requirements.

  2. On the first day of the hearing, the Applicant sought to rely upon a sketch of the outdoor play area prepared by Conzept landscape architects to which the Respondent objected as it sought to further amend the application in a manner that the experts had not had the opportunity to review, and was not minor in the amendments it proposed.

  3. I directed that the sketch be the subject of further joint conferencing between the child care experts, in consultation with the Applicant’s landscape expert Mr Frew as required, and for a supplementary report to be filed with the Court by 10am the following day, and before the hearing reconvened at 11am.

  4. At the commencement of the second day of the hearing, the parties advised me that without prejudice discussions had taken place and jointly submitted that a further adjournment of the hearing was likely to result in the dispute being narrowed or resolved.

  5. As the matter had been initially listed as a 3-day hearing, I directed that the Applicant file and serve any further amended plans by 10am Monday 22 June 2020, and adjourned the hearing until 12pm the same day.

  6. On the third day of the hearing, the Applicant sought leave to further amend the application and rely upon further amended plans and other documents, including:

  1. Amended architectural plans, marked Exhibit R.

  2. Acoustic advice, and attached diagram prepared by Mr Richard Haydon of Acoustic Dynamics dated 18 June 2020, marked Exhibit W.

  1. The Respondent tendered the further supplementary expert report prepared by the child care experts in accordance with my directions at [39], and draft conditions of consent that the parties are agree upon, marked Exhibit 14.

  2. The Applicant also sought leave to amend the application and rely upon a further revised sketch of the outdoor play area prepared by Conzept landscape architects, marked Exhibit S (Exhibit S Sketch) that was the result of the joint conferencing which was not objected to, subject to the Applicant paying the Respondent’s costs thrown away.

  3. The Applicant submits that the amendments are matters of detail with no changes of any consequence to the physical bounds of the outdoor play other than material and floor finishes. Furthermore, the amendments are responsive to a contention raised by the Respondent late in the proceedings, and on purely subjective grounds, and which is otherwise capable of being resolved by a condition of consent.

  4. In support of which, the Applicant relies on Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45; [2009] NSWLEC 153 to the extent that the amendments are minor, which is a matter of fact and degree, and when considered overall, and where no further assessment or notification is required, and is not a change in concept.

  5. In the alternative, the Respondent considers it irrelevant as to when the contention was raised, and submits that the changes flowing from the Exhibit S sketch are important in the context of the proposal, and have wider implications comprising:

  1. Deletion of the rubberised surface in favour of timber decking;

  2. Introduction of 2 sandpits, and deep soil planting in the SW corner of the outdoor play area;

  3. Amendment to the acoustic barrier to the perimeter of the outdoor play area, including changes to the height, deletion of the cantilever and addition of see-through panelling;

  4. New landscaped areas around the perimeter of the outdoor play area.

  1. In my view, as the Exhibit S sketch is itself a single page plan, the precise degree of amendment that flows from the sketch is best understood by reference to the further amended architectural plans that were marked Exhibit R, and acoustic advice prepared by Mr Richard Haydon. If the amendments were limited to the finishes of the outdoor play area, with no impact on the perimeter of the area, it may reasonably be considered minor.

  2. However, as Moore SC, as his Honour was then, states in Cachia v Manly Council (No 2) [2009] NSWLEC 1107, an assessment of degree requires calibration in respect of the scale of the proposal, as shown by Bannon J in Coshott v Woollahra Council [1996] NSWLEC 256:

“.. It is a matter of degree whether changes are major or minor. In a small project, any change may be major. In a large scale project such as a three or four-storey Vaucluse mansion, the relative effect of change may be minimal.”

  1. I consider the amendments to the outdoor play area to extend beyond floor finishes and the addition of two sandpits. Instead, the Applicant amends the materials and geometry of the extensive acoustic fence that contains the outdoor play area, and represents a primary interface with neighbouring properties.

  2. In particular, the western elevation of the acoustic fence shown on Drawing DA41 Rev H (Exhibit R) comprises amendments evident in the Exhibit S sketch that I consider to be more than minor in the context of the scale of the proposed development.

Consideration of public submissions

  1. While the parties are agreed that amendments to the plans resolve the contentions, I am required to consider those matters set out in public submissions and summarised at [16], as those submissions raise matters that are said to comprise likely impacts of the development (s 4.15(1)(b) of the EPA Act), and may be considered of public interest (s 4.15(1)(e) of the EPA Act).

  2. In embarking on consideration of the issues raised by residents, and on behalf of the Epping Civic Trust, I am encouraged by the Applicant to apply weight to those issues in accordance with the guidance of Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 to the effect that public submissions may be afforded weight where objective, specific, concrete or observable consequences of the proposed development are set out.

  3. I proposed to consider public submissions under those headings set out at [16], and as follows:

Existing on-street parking is limited and will be worsened by the proposed development

  1. A number of the public submissions state that on-street parking is already limited for residents in the area due to the high volume of commuters parking cars on the street for long periods during the day, and school-related traffic on Norfolk Road. Furthermore, illegal parking activity results in residents’ driveways being regularly blocked.

  2. While the Court was not assisted by an onsite view prior to the hearing, the Respondent provided a package of images of properties along Norfolk Road, marked Exhibit 12. Those images, supported by aerial photographs, show properties in the area benefit from a variety of off-street parking, including car ports, garages and driveways that are, in many instances, able to accommodate multiple vehicles.

  3. On-street parking restrictions were mapped as part of a visit to the area by the Applicant’s traffic engineer on 19 May 2020 at Annexure F1 of the joint traffic report which shows a mix of No Stopping, Restricted and Unrestricted parking on Norfolk Road, and largely Unrestricted parking on Chester Street.

  4. Where illegal parking activity obstructs or inconveniences residents, it is reasonable that those residents expect enforcement action from the Council, and where safety concerns are held in relation to pedestrian/vehicle conflict submissions may be made to local traffic committees.

  5. The provision of car parking to be expected of the proposed development is found in the Hornsby Development Control Plan 2013 (HDCP). The Table at Part 1.C.2.1 (d) of the HDCP requires that child care centres provide 1 car parking space per 4 children.

  1. As the application before the Court proposes a child care facility for 53 children, a total of 13.25 spaces are required. A total of 14 car spaces is proposed, and I note that s 4.15(3A) of the EPA Act provides that where a development application complies with standards contained in a development control plan, more onerous standards are not to be required.

  2. I also note that the traffic experts agree that amendments to the design of the car park will assist in traffic management within the car park by relocating the wheel stops so that car park spaces Nos 7-12 are accessed from the 5.8m wide parking aisle.

Traffic congestion and road safety may worsen and so increase the chance of accidents, placing pedestrian school children at risk

  1. Norfolk Road is clearly a busy roadway, particularly at school drop off and pick up times. The joint expert traffic report contains references to a traffic report undertaken by GHD in January 2018, commissioned for the expansion of the Epping Public School (GHD Traffic Report), with excerpts contained at Annexure D2, Exhibit 6.

  2. The GHD Traffic Report records that 46% of students at the school arrive by private vehicle and the remainder, the majority, walk, cycle or arrive by public transport.

  3. For reasons set out at Annexure E of the joint report, and particular to the crossing points on Norfolk Road, I am satisfied that the walking routes likely to be preferred by students, and their parents and/or carers will be across the road from, and not across the driveway of, the subject site.

  4. However, I also note that sightlines from a vehicle exiting the site are illustrated in images at Figures 4 and 5 of the amended Traffic and Parking Impact Assessment (Exhibit L) and that the forward direction of the vehicle on exit would provide the driver with sightlines that are consistent with the relevant Australian Standard.

  5. I also consider the amendment of the proposal in accordance with the agreed position of the traffic experts to be relevant and appropriate in further promoting safe use of the site by vehicle drivers as follows:

  • Installation of a speed hump on the exit site driveway, located within 2m from the site boundary.

  • Installation of a centre line marking extending for 6m into the site from the boundary.

  • Advice to parents and carers that egress from the site should be left turn only during school peak hour times.

  1. Exhibit L contains SIDRA modelling of mid-block performance that the parties agree is not a requirement of a proposal such as that before the Court as it is more suited to intersection analysis in the early stages of planning. However, applying the same rates as the GHD Traffic Report, the Applicant submits that the level of service, with expansion of the Epping Public School and child care facility volumes included, remains acceptable.

  2. This is further supported by the agreed position of the experts that peak operating periods of the Epping Public School and the proposed child care facility overlap but are not wholly coincident. Relatedly, the experts agree that the probability of conflict between pedestrians and vehicles at the driveway of the subject site is so low as to be acceptable and defined as follows in Exhibit 6:

  • 0.2% chance during the 8am-9am peak hour, or one occurrence every 500 AM peak hour periods

  • 0.09% chance during the 3pm-4pm peak hour, or one occurrence every 1,111 PM shoulder peak hour periods.

Existing noise levels, from sources such as the Epping Public School and traffic on Norfolk Road will worsen in the local area, especially considering the location of the outdoor play area

  1. The focus of the concern at potential impacts of noise on surrounding residents is the outdoor play area that was the subject of acoustic advice resulting in amendments adopted during the hearing. For the reasons that follow, I am satisfied that the proposed development will not impose an unacceptable level of noise on residents of surrounding properties.

  1. Modelling assumptions contained in the Noise Emission Assessment (Exhibit J) and further advice contained in Exhibit W inform amendments contained in the plans for which leave was granted at Exhibit R.

  2. Included in the advice at Exhibit W is a diagram of windows that must remain closed during indoor activities whether or not there is outdoor play. As only the window/door assembly in Playroom 3 is required to be closed during indoor activities, I consider it reasonable to expect the facility will be managed in accordance with the assumptions underlying the acoustic modelling.

  3. Relevantly, the acoustic assessment is made on the basis of the lowest levels of background noise in the local area, and during the most intense, or maximum operations of the child care facility, which is described as greater than 2 hours of outdoor play per day (‘Scenario A’) at p19 of Exhibit J. The Noise Emission Levels set out on Table 4.2 of Exhibit J are shown to comply with the objective of 44dB, derived from the Environment Protection Authority’s Noise Policy for Industrial.

  4. The materials, height and density of components comprising the acoustic fence is the subject of proposed conditions of consent (Exhibit 14, conditions 9, 9A and 9B), and is detailed on Drawing DA41 (Exhibit R).

The proposed development includes the removal of large mature trees that will adversely impact on the extent of shade and privacy enjoyed by neighbours

  1. The amended plans at Exhibit D increased the setback to the western boundary adjoining properties to Rockleigh Way, and so allow the retention of Trees 19, 20 and 21 that were formerly to be removed.

  2. I have considered the retention value of existing trees set out in the Tree Assessment Schedule at Annexure C in Exhibit K, prepared by Rain Tree Consulting. In doing so, I note that select trees within the East Epping HCA form part of an Endangered Ecological Community, and that trees of 5m of more in height are protected under Part 1B.7.1 of the HDCP and for which consent is required.

  3. The landscape plans at Exhibit E show perimeter planting of new canopy trees to the west and north, and planting of shrubs and hedges to the south that are said to achieve 2.5m in height when mature.

  4. For the reasons set out above, I regard the removal of those trees so marked to be the result of considered assessment. Furthermore, I consider the proposed planting of canopy trees in the locations shown on the landscape plans will contribute positively to the amenity of properties in the area.

The outdoor play area is inadequate as it fails to provide sufficient area per child

  1. The spatial requirements for outdoor space in a child care facility are set out at [21]. As the proposal is now for a facility that caters for 53 children, a total outdoor area of 371m2 is required under the National Regulations.

  2. A total area of 372.8m2 is now proposed for the outdoor play area, and so I am satisfied that the area meets the requirement of the National Regulations.

The proposed emergency evacuation plan and assembly area is inadequate as the assembly area is itself at risk of flooding

  1. It is commonly held by the parties that the site is flood affected. Exhibits 10 and 11 set out the areas of agreement between the stormwater experts and Exhibit Q sets out, at Section 4, the Flood Emergency Response.

  2. Broadly speaking, the response adopts what has become widely known recently as a ‘shelter in place’ approach. The ground floor level is located well above the relevant flood level. Pedestrian access and egress to the facility is unaffected as the ramped pedestrian entry at the south east of the site is also located well above the relevant flood levels.

  3. A flood door to the north of the basement car park acts to exclude flood waters from entering the building, and all ventilation points to the basement are also positioned above the relevant flood levels.

  4. On the basis of the amendments resulting from the joint expert reports, the Flood Emergency Plan, and the proposed condition of consent (Condition 39A, Exhibit 14), I am satisfied that the emergency response and evacuation of children, staff, parents and carers as proposed incorporates appropriate measures to manage risk to life from flood in accordance with cl 6.3(3) of the HLEP.

Conclusion

  1. As stated at [52], the parties are agreed that the contentions are resolved by the amended plans. However, cl 23 of the SEPP Child Care requires the Court to take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development.

  2. I have considered the design quality principles contained in the Guideline, and I am of the view that the proposed development is consistent with those principles when assessed alongside the particular matters for consideration such as the site selection and location, extent and nature of landscaping, visual and acoustic privacy, traffic, parking and pedestrian circulation, ventilation and lighting, outdoor space requirements and the natural environment. The reasons for arriving at this conclusion are found within the judgment at [55]-[79].

  3. For the reasons set out at [53]-[79], I am satisfied that the matters raised in public submissions are adequately addressed in the amended application before the Court. Taking into consideration the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, as required by s 4.15(1)(b) of the EPA Act, I have determined that the likely impacts are acceptable.

  4. As the site is within the East Epping HCA, I have also considered the effect of the proposed development on the heritage significance of the area concerned in accordance with cl 5.10(4) of the HLEP, which I regard to be acceptable. In arriving at this conclusion, I note the increase of the roof pitch for the proposed new building to the north of the site is to be amended from 22.5° to 30°, and accept the concurrence of the experts that this will result in a presentation more suited to the heritage values of the East Epping HCA.

  5. I also consider that the proposed development for a centre based child care facility, being consistent with the objective of the R2 zone to enable other land uses that provide facilities or services to meet the day to day needs of residents, is consistent with the is in the public interest in accordance with s 4.15(1)(e) of the EPA Act.

Orders

  1. The Court orders that:

  1. The Applicant is granted leave to amend the application and rely upon those amendments contained in, and arising from, the Exhibit S sketch subject to the Applicant paying the Respondent’s costs thrown away as a result of the amendment as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

  2. The appeal is upheld.

  3. Development consent is granted for Development Application No. DA/745/2018 for site consolidation, demolition works, tree removal and construction of a 53 place child care centre with basement car parking at 21-23 Norfolk Road, Epping, subject to conditions of consent in Annexure ‘A’.

  4. All Exhibits are returned except for Exhibits R, S, T and W.

………………

T Horton

Commissioner of the Court

Annexure A (298637, pdf)

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Decision last updated: 21 July 2020

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Cachia v Manly Council (No 2) [2009] NSWLEC 1107
Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153
Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1389