Isaac Property Development Pty Limited v Blacktown City Council

Case •

[2022] NSWLEC 1588

•

26 October 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Isaac Property Development Pty Limited v Blacktown City Council [2022] NSWLEC 1588
Hearing dates: 13 September, 14 September, 15 September 2022
Date of orders: 26 October 2022
Decision date: 26 October 2022
Jurisdiction:Class 1
Before: O’Neill C
Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 20-01284 for the construction and use of a three-storey commercial building consisting of basement car parking, food and drink premises on ground floor, gymnasium on ground and mezzanine floors and a childcare centre on levels 1 and 2; the construction and operation of a take away food and drink premises with drive through facility; associated car parking, landscaping and signage; and consolidation of the existing 3 lots into 2 new lots, at 81-91 Railway Terrace, Schofields, is approved, subject to the conditions of consent at Annexure A.

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

Catchwords:

DEVELOPMENT APPLICATION – construction of a three-storey commercial building with basement parking for use as a food and drink premises, a childcare centre and a gymnasium, construction of a fast-food premises with drive through facility, on-grade car parking, landscaping and signage – whether the proposal is consistent with the desired future character for the Schofields Neighbourhood Centre – riparian management

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.46, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Environmental Planning and Assessment Regulation 2021, Sch 6, cl 3

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, cl 3.9

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, cl 6C

Water Management Act 2000, s 91

Texts Cited:

Alex Avenue and Riverstone Precinct Plan 2010

Blacktown City Council Growth Centre Precincts Development Control Plan 2010

Natural Resources Access Regulator, Guidelines for controlled activities on waterfront land (2018).

Department of Planning & Environment, The Childcare Planning Guideline (2017).

Category:Principal judgment
Parties: Isaac Property Development Pty Limited (Applicant)
Blacktown City Council (Respondent)
Representation:

Counsel:
A Pickles SC (Applicant)
G Farland (Respondent)

Solicitors:
Allens (Applicant)
Bartier Perry Lawyers (Respondent)
File Number(s): 2021/341648
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 20-01284 for the construction and use of a three-storey commercial building consisting of basement car parking, food and drink premises on ground floor, gymnasium on ground and mezzanine floors and a childcare centre on levels 1 and 2; the construction and operation of a take away food and drink premises with drive through facility (fast-food premises); associated car parking, landscaping and signage; and consolidation of the existing 3 lots into 2 new lots, at 81-91 Railway Terrace, Schofields (the site) by Blacktown City Council (the Council).

  2. The appeal was subject to conciliation on 21 March 2022, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 23 May 2012, pursuant to s 34(4) of the LEC Act.

The proposal is amended

  1. The Court granted the applicant leave to amend the application to rely on amended plans on 20 August 2022, subject to an order that the applicant pay the Council’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the EPA Act.

  2. The Court granted the applicant leave to amend the application at the commencement of the hearing to rely on further amended plans (Ex A). The parties agreed the amendments to the architectural and landscape plans were minor within the meaning of s 8.15(3) of the EPA Act.

  3. The traffic experts prepared a supplementary joint report (Ex L) following their oral evidence and agreed on the position of bollards to address aspects of contentions 13(e) and 22(c) raised by the Council in the Statement of Facts and Contentions (Ex 1). The plans were further amended to include the agreed position of bollards and a wheel stop.

  4. The Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) continues to apply to the application because the application was lodged with the Council on 3 September 2020, the Class 1 application was filed with the Court on 1 December 2021, and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021).

  5. The final amended plans (the proposal) were filed with the Court on 27 September 2022 and uploaded with the Council’s consent under cl 55 of the EPA Regulation 2000 to the NSW planning portal on 28 September 2022.

Issues

  1. The Council’s contentions can be summarised as:

  1. The proposal fails to deliver the desired objectives of Section 5.1, the development principles for the Schofields Neighbourhood Centre, of the State Environmental Planning Policy (Sydney Growth Centres) 2006 (Growth Centres SEPP), because the proposal does not retain the fined grained, intimate scale of development; fails to integrate commercial, retain and community land uses with outdoor spaces; detailed design has not been undertaken in a coordinated manner to achieve a high-quality urban design outcome; and the proposal is not well served by parking, pedestrian/cyclist access.

  2. The proposal fails to respond to the character statement within Section 5.1 Development Principles of the Growth Centres Development Control Plan 2010 – Schofields neighbourhood centre (Growth Centres DCP).

  3. The proposal fails to contribute to the quality of the streetscape and public domain, as follows:

  1. The proposed fast-food premises is not considered to be compatible with the positive characteristics of the neighbourhood centre streetscape along Railway Terrace.

  2. The proposal is car dominated and does not provide a high level of pedestrian amenity, access and safety.

  3. The proposed drive-through dominates the ‘new plaza’ and severs pedestrian connectivity.

  4. The proposal fails to provide a response to the vista available due north along Railway Terrace.

  5. The proposed colonnade treatment on the western elevation reduces activation to the pedestrian footpath.

  6. The entry carpark ramp for the childcare facility is not fully integrated within the footprint of the three-storey building and the area occupied by the ramp should be provided as a setback to the adjoining residential properties.

  7. The three-storey building does not provide a transition to the lower density residential property at 9B Station Street as the separation distance is less than 6m.

  8. The three-storey building precludes an outlook to the RE1 land from the existing retail/commercial development along Railway Terrace; and from the proposed fast-food premises as an area of future expansion as detailed in Figure 5-2 Schofields Neighbourhood Centre – desired future character.

  9. The proposal fails to respond to the available vista at the south-western end of Carman Park and it fails to provide direct pedestrian and differently abled links to the park which will curtail the vision for improvements to the park as shown in Figure 5-2.

  1. The proposal does not provide an active street frontage or street address to Railway Terrace which is inconsistent with the objectives and desired future character for the area.

  2. The proposal is heavily dominated by hardstand and vehicular circulation with pedestrian movement, landscaping and amenity overlooked.

  3. The proposal fails to provide a considered landscaping scheme and adequate provision of deep soil that would result in greater aesthetic quality to enhance the desired future ‘village’ character.

  4. The proposal fails to achieve a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.

  5. The proposal fails to follow the established front setback alignment along Railway Terrace. Elevations to the neighbours to the east and south rely on blank defensive walls without adequate separation.

  6. The proposal fails to optimise solar access within the development and mitigate overshadowing impacts on the RE1 zoned publicly accessible land.

  7. The proposal results in impacts to the residential amenity and overshadowing of common open spaces.

  8. The proposal results in poor visual appearance that does not respond to the existing or desired future character and streetscape of the surrounding context.

  9. The Vegetation Management Plan and the Stormwater Management Plan must show that the Strahler stream order has been considered and that the appropriate vegetated riparian zone has been applied consistent with the Natural Resources Access Regulator Guidelines for controlled activities on waterfront land (NRAR 2018). The Riparian Assessment Report has not applied the method of Strahler stream ordering as understood from the NRAR guidelines and material. The proposal should not encroach on the inner 50% of the vegetated riparian zone, as shown in the Vegetation Management Plan. The amended Vegetation Management Plan ceases at the conclusion of Year 5 and there is no provision for implementation beyond that period.

  1. The Council submitted that the contentions regarding stormwater and flooding had been addressed by the amendments made to the proposal.

  2. The applicant disputed seven conditions of consent.

The site and its context

  1. The site is on the eastern side of Railway Terrace, with access at the rear of the retail/commercial properties fronting Railway Terrace to the south from Rothwell Lane.

  2. The site is roughly L shaped, with an area of 8,200.6m2 and a frontage to Railway Terrace of 79.335m. The site is vacant.

  3. Schofields Railway Station is approximately 1km to the south of the site.

Figure 1 The site (from Ex 1).

  1. The site falls to the north-western corner.

  2. An unnamed tributary, which flows into Eastern Creek (part of the Hawkesbury-Nepean River catchment) runs across the northern portion of the site.

The proposal

  1. The proposal is designed by architects Smith & Tzannes Pty Ltd.

  2. The proposal includes the following:

  • the construction and use of a three-storey commercial building in the south-eastern portion of the site, consisting of basement car parking accessed from a driveway off Rothwell Lane, food and drink premises and a northern terrace overlooking the riparian area on ground floor, a gymnasium on ground and mezzanine floors, and a childcare centre on levels 1 and 2;

  • the construction and operation of a takeaway food and drink premises (fast food premises) fronting Railway Terrace with a northern and western terrace for circulation and outdoor seating, and a drive through facility at the rear accessed from the driveway off Rothwell Lane;

  • an area identified as ‘new plaza’ which is paved driveway between Railway Terrace and Rothwell Lane, including surface parking for 20 cars and two loading bays;

  • associated landscaping and signage;

  • consolidation of the existing 3 lots into 2 new lots; and

  • the childcare centre is for up to 100 children aged between 6 weeks and 6 years (Ex F);

  • 24-hour trading for all uses except the childcare centre, which will operate 6.30am to 6.30pm Monday to Friday 50 weeks/per year (Ex F).

Figure 2 Site plan/ground level plan, final amended plans filed 27 September 2022.

Planning framework

  1. State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Precincts SEPP) commenced on 1 March 2022. SEPP Western Parkland City, and the site is within the area designated as the North West Growth Centre.

  2. The Council submitted that the savings provision (cl 3.9 of the Precincts SEPP and cl 6C of the Growth Centres SEPP) requires the application to be assessed under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP), as the application was lodged on 3 September 2020. In the absence of a contrary position, I accept the Council’s submission.

  3. The Alex Avenue and Riverstone Precinct Plan 2010 (the Precinct Plan) (Appendix 4 of the Growth Centres SEPP) applies to the site (North West Growth Centre Land Application Map Sheet LAP_005 of the Growth Centres SEPP).

  4. The relevant aims of the Precinct Plan, at cl 1.2, are:

(a) to make development controls for land in the Alex Avenue and Riverstone Precincts within the North West Growth Centre that will ensure the creation of quality environments and good design outcomes,

(b) to protect and enhance the environmentally sensitive and natural areas and the cultural heritage of those Precincts,

(c) to provide for recreational opportunities within those Precincts,

(d) to provide for multifunctional and innovative development in those Precincts that encourages employment and economic growth,

(g) to promote pedestrian and vehicle connectivity with adjoining Precincts and localities and within the Alex Avenue and Riverstone Precincts,

  1. The site is zoned B1 Neighbourhood Centre and E2 Environmental Conservation under the Precinct Plan (extract from the zoning map below).

  1. The relevant objectives of the zones, to which regard must be had pursuant to cl 2.3(2) of the Precinct Plan, are:

Zone B1 Neighbourhood Centre

• To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

• To ensure the scale and type of business development is compatible with the scale of the surrounding area.

• To promote a sense of place and focal points for the local community.

Zone E2 Environmental Conservation

• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

Zone E2

• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

  1. The Council submitted it is undisputed that the proposal is permissible in the B1 zone because the proposed uses relied upon by the applicant (centre-based childcare facilities, food and drink premises; recreational facilities (indoor)) are nominate uses permitted with consent in the zone under the Precinct Plan.

  2. The Council submitted that the proposal complies with the height of buildings and floor space ratio (FSR) development standards applicable to the site under the Precinct Plan, 17m and 2.75:1.

  3. The part of the site zoned E2 is identified as a native vegetation retention area (cl 6.4 of the Precinct Plan and North West Growth Centre Native Vegetation Protection Map Sheet NVP_005 of the Growth Centres SEPP).

  4. The site is identified as flood prone and major creeks land (North West Growth Centre Development Control Map Sheet DVC_005 of the Growth Centres SEPP).

  5. The Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (DCP 2010) applies to the Riverstone Precinct at 1.1, which includes the site.

  6. The purpose of DCP 2010, at 1.2, includes to communicate the planning, design and environmental objectives and controls against which the consent authority will assess development applications.

  7. DCP 2010 is relevantly divided into Section 2: precinct planning outcomes, Section 5: centres development controls, and Schedule 2 Riverstone precinct, including development principles – Schofields neighbourhood centre.

  8. Controls – development within the floodway at 2.3.1.3 of DCP 2010 include considerations for flood affected land, as follows:

Whether the proposed building materials are suitable;

“• Whether the buildings are to be sited in the optimum position to avoid flood waters and allow evacuation;

• Whether proposed structures or the filling of land are likely to affect flood flows;

• Whether earthworks required to maintain the capacity of the floodplain and flood flow velocities will impact on soil salinity and soil stability;

• The potential impact of the development, including earthworks, on native vegetation;

• The views of other authorities, as considered necessary and whether the applicant has consulted with those authorities and the outcomes of that consultation; and

• Consistency with the NSW Floodplain Manual.”

  1. The Centres development controls, at Section 5, have the following objectives:

a. create a vibrant centre that functions as the heart of the community within the relevant Precinct;

b. establish design principles that achieve high quality coordinated urban design outcomes and high standards of amenity;

c. encourage social interaction and the development of places that are safe and desirable for all users;

d. provide flexible controls to accommodate change within the Centre’s over time;

e. ensure that development in the centre takes advantage of access to public transport.

  1. The relevant objectives and controls for streetscape and architectural design, at 5.2.1 of DCP 2010, are:

5.2.1.1 Objectives

“a. To achieve high standards of streetscape amenity and building design.

b. To encourage pedestrian activity in the streets of the Centre and other public spaces.

c. To clearly define the character of the main street and other elements of the public domain.”

5.2.1.2 Controls—active frontage and street address

“1. Active street fronts, built to the street boundary, are required on the ground level of all retail and commercial development fronting the main street and where applicable, public open space, as identified in the Desired future layout of the Centre figure in the relevant Precinct’s Schedule…

4. The primary means of pedestrian access to retail, commercial and upper floor residential uses is to be from the street rather than from the rear or internal areas of the building.

5. Vehicle access to basement level parking or parking located behind buildings is not to be from active street frontages…

9. Restaurants, cafes and the like are encouraged to provide openable shop fronts.

10. On corner sites, active shop fronts are to wrap around the corner and address both street frontages…

15. All buildings on active street frontages are to include awnings above the ground floor for the full length of the street frontage.

16. Parking is to be screened by buildings, from the main street and other streets with active frontages, or be below ground.”

5.2.1.3 Controls—building facades

“17. Building facades at street level on active frontage streets are to have a minimum of 80% glazing and be open to the street…

19. At night, internal lighting is to fall onto the footpath, or under-awning lighting is to be provided.”

5.2.1.4 Controls—landscape design and public spaces

“29. Parks and plazas are to act as a focal point for the Local Centre and community activities and are to be designed to ensure adaptability and flexibility in use and function over time.”

  1. The relevant objectives and controls for building bulk, scale and design, at 5.2.2 of DCP 2010, are:

5.2.2.1 Objectives

“a. To ensure a high standard of building design.

b. To ensure that buildings are appropriate to the scale and character of the centre.

c. To provide for appropriate air circulation and solar access, and to maintain view corridors to and through the centre.”

5.2.2.2 Controls

“4. Zero side setbacks are required on the ground floor and first floor and the side wall shall contain no windows or other openings (except where the side setback is to a public street, where the façade controls in clause 5.2.1 apply)…

6. Where windows, balconies or other openings are to be provided on upper floors, the minimum side setback for upper floors is 6 metres from the side property boundary and the minimum separation distance between habitable rooms or balconies is 12 metres.”

  1. The relevant objectives and controls for signs, at 5.2.3 of DCP 2010, are:

5.2.3.1 Objectives

“a. To ensure that signs and advertising structures are unobtrusive and coordinated in their appearance and design, and complement buildings and the streetscape.

b. To limit the purposes for which signs may be erected to those that identify businesses and buildings.”

5.2.3.2 Controls

“14. Free standing signs (signs that are not affixed to a building) are not permitted on active street frontages.”

  1. Schedule 2 Riverstone precinct includes the development principles for the Schofields neighbourhood centre, at 5.1, as follows:

Objectives

“• To support a vibrant village centre that draws visitors from a broader catchment and serves the convenience retail and commercial needs of the surrounding community.

• To retain the fine grained, intimate scale of development.

• To integrate commercial, retail and community land uses with outdoor spaces.

• To ensure that the detailed design of the centre is undertaken in a coordinated manner in order to achieve a high-quality urban design outcome.

• To ensure that the Centre is well served by public transport, parking, and pedestrian/cyclist access.”

Character statement

“The Schofields neighbourhood centre is located to the south-west of the Riverstone Precinct. It comprises land that is zoned B1 Neighbourhood Centre in the vicinity of Station Street and Railway Terrace, and adjacent drainage and open space land. The general area is that shown on Figure 5-2.

The relocation of the Schofields Railway Station from its current site to a location approximately 800 metres south (adjacent to the Alex Avenue Precinct) requires the redefinition of the role of the Schofields Neighbourhood Centre. The future sustainability of the centre lies in its ability to take on a special ‘village’ character that will be supported by future development. This means that retail and commercial activities have the potential to capture more specialised or niche markets that are less likely to be provided in larger centres.

Undeveloped flood prone land that forms part of the land zoned B1 Neighbourhood Centre provides an opportunity to integrate commercial and retail activities with a highly activated outdoor space that incorporates recreational and passive open space uses. The orientation of commercial and retail uses towards this outdoor space will contribute to improved amenity and to the character of the centre.

The intention of the Indicative Layout Plan is to enable recreational, community and retail uses to establish in Schofields neighbourhood centre that will attract visitors from a broader catchment, but also serve a convenience function and provide a central destination for neighbourhood interaction. Medium density housing types will be permitted within and close to the centre, including shop top housing, to increase the local catchment population for retail uses and to increase levels of activity in and around the centre.”

Activities or land uses that may contribute to the long-term viability of the centre, and be consistent with the desired future character, include:

• shop top housing.

• cafés, tearooms and restaurants.

• neighbourhood shops, mini-marts, takeaway food premises, kiosks.

• upgrading and expansion of the Schofields Community Hall (proposed by Council as part of the Riverstone Precinct Plan).

• outdoor

• outdoor music/fireworks display.

• a local history museum.

• clusters of standard retail interspersed with local commercial premises (e.g. offices for small businesses).

• local art and craft workshops, studios, galleries, weekend market stalls.

Figure 3 Figure 5-2 Schofields Neighbourhood Centre – desired future character

  1. Active street frontage is defined under DCP 2010 as follows:

Active street frontages are defined as one or a combination of the following:

• entrance to retail;

• shop front;

• glazed entries to commercial and residential lobbies;

• café or restaurant if accompanied by an entry from the street;

• active office uses, such as reception, if visible from the street; and

• public building if accompanied by an entry.

  1. The Childcare Planning Guideline published by the Department of Planning & Environment in August 2017 includes the following at 4.4 Ventilation and natural light:

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 childcare 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.”

Public submissions

  1. One resident objector gave evidence at the commencement of the hearing onsite. His concerns can be summarised as follows:

  1. the objector was not able to view the plans despite the link that was sent to him by the Council’s solicitor;

  2. the proposal will generate too much traffic and on-street parking;

  3. the area is a peak stormwater area and the proposal should improve stormwater, not contribute to it;

  4. there are an excessive number of trees being removed and the proposal will be a heat sink;

  5. the proposal will disturb the surrounding residential areas, it is not suitable and the 24 hours operation will disrupt residents’ sleep; and

  6. fast-food outlets result in patrons discarding their rubbish on the ground and not in rubbish bins.

Expert evidence

  1. The applicant relied on the expert evidence of Stephen O’Connor (planning), Peter Smith (urban design), Nick Metcalf (landscaping), Tim Rogers (traffic), Nick Mitchell (stormwater and flooding) and Craig Anderson (ecology).

  2. The Council relied on the expert evidence of Julie Horder (planning), Karla Castellanos (urban design), Brett Maynard (traffic), Ashley Bond (stormwater and flooding) and Dr Meredith Henderson (ecology).

  3. The experts prepared joint reports which were admitted into evidence: planning (Ex 3), urban design and landscaping (Ex 7), traffic (Exs 6 and L), stormwater and flooding (Ex 5) and ecology (Ex 4). The planning, urban design, traffic and ecology experts gave oral evidence.

Consideration

The proposal is consistent with the objectives for the Schofields Neighbourhood Centre

  1. The Council contends that the proposal fails to deliver the desired objectives of Section 5.1 Development principles of DCP 2010 – Schofields Neighbourhood Centre.

  2. Mr Smith noted that the objectives and character statement for the Schofields Neighbourhood Centre relate to the neighbourhood centre as a whole and need not be fulfilled on each individual site. The site is not required to be a “central destination for neighbourhood interaction”, rather that is the function of the entire centre. I accept Mr Smith’s observation that the objectives of Section 5.1 of Sch 2 to DCP 2010 are for the entire Schofields Neighbourhood Centre to achieve. A vibrant village centre will be achieved if the neighbourhood centre is viable, by providing a range of goods and services in demand in the surrounding community and broader catchment, and convenient access to the neighbourhood centre.

  3. I am satisfied that the proposal is consistent with the objectives for the Schofield Neighbourhood Centre, for the following reasons:

  1. The proposal will contribute to supporting a vibrant village centre because it provides a range of permissible uses that will draw visitors from a broader catchment and serves the convenience retail and commercial needs of the surrounding community. The proposal is highly responsive to the unique opportunities and constraints of the site and to the character of the locality.

  2. A take-away food premises is identified by the development principles for the Schofields Neighbourhood Centre as a us that may contribute to long-term viability of the centre and be consistent with the desired future character for the centre.

  3. The scale and spatial layout of the proposal is consistent with the fine grained, intimate scale of development envisaged for the Schofields Neighbourhood Centre and is consistent with the scale of development anticipated by the objectives for local neighbourhood centres. The proposal achieves a spacious, small suburban shopping centre character, consistent with the feel of the Schofields locale, while still being pedestrian friendly and connected as part of the neighbourhood centre.

  4. The proposal integrates the proposed uses with outdoor spaces, by including extensive and generous outdoor seating areas overlooking the riparian corridor and the recreation area to the east of the site, and seating along the pathway adjacent to the restored riparian corridor. The proposal includes landscaped spaces around the buildings and carpark, to give it a suburban character. The proposal establishes a visual connection and relationship between the nearby community centre and the neighbourhood centre.

  5. The proposal is a high-quality urban design outcome, which provides on-grade, legible and convenient parking, consistent with the needs and expectations of the local community, with level access to the outdoor seating areas, including the colonnaded terrace around the fast-food premises.

  6. The proposal contributes to vehicular, pedestrian and cycle access to the neighbourhood centre, by providing less formal, pleasant, landscaped thoroughfares through the site for vehicles, cyclists and pedestrians.

The proposal is consistent with the future desired character of the Schofields Neighbourhood Centre

  1. According to Ms Castellanos, the development principles for the Schofields Neighbourhood Centre seeking a special village character specifically apply the site whether it is privately or publicly owned. In her view, the proposal fails to achieve a “central destination for neighbourhood interaction” or to deliver a village feel. The proposal is for two distinct commercial facilities with a large carpark and a drive-through facility bonding them together. The proposal does not constitute a central destination and there are insufficient areas for interaction. The proposal does not integrate the uses with the outdoor space. In Ms Castellanos’ opinion, the elevated plinth above the riparian corridor to allow for flood storage creates a defensive and utilitarian elevation to the future expansion of the Schofields Community Centre. In her view, no effort has been made to respond to the vista available at the end of the east-west axis of the park.

  2. I accept the agreement of the planning experts that the proposal, as part of the Schofields Neighbourhood Centre, will contribute to providing a place for neighbourhood interaction. I accept and agree with Ms Horder’s interpretation that the character statement applies to the neighbourhood centre as a whole, and encourages land uses that contribute to the long-term viability of the centre. I accept Ms Horder’s evidence that the drive through at the rear of the fast-food premises will not contribute to the neighbourhood centre being a central destination for neighbourhood interaction. The drive through is a discrete element of the proposal that has been thoughtfully designed so as not to be the focus, and so as to not to interrupt vehicular and pedestrian flow through the neighbourhood centre. I am satisfied that the proposal, as a whole, will contribute to the long-term viability of the neighbourhood centre and it being a place for neighbourhood interaction. The drive through, given its configuration and location, does not unreasonably detract from the proposal’s ability to significantly contribute to the long-term viability of this neighbourhood centre.

  3. I accept and agree with the planning experts’ agreement that a connection between the Schofields Community Hall and the proposal would contribute to the long-term viability of the neighbourhood centre, however, as the riparian corridor is to be rehabilitated and revegetated, the ecology experts agreed that a pathway across the riparian corridor is not appropriate because it would interfere with the rehabilitation of the riparian corridor. It is the Council’s preference, as reflected in the project’s brief, that the rehabilitation of the riparian corridor be prioritised over pedestrian access across the creek, both the existing connection via the pedestrian way from Carman Street and any future connection between the community centre and the neighbourhood centre.

  4. I do not accept that the treatment of the north-western corner of the proposal, the raised colonnaded terrace with outdoor seating, for circulation between the on-grade parking, the fast-food premises, and Railway Terrace, creates a defensive and utilitarian elevation to the future expansion of the community centre. The raised colonnaded terrace is an appropriate and practical response to the flood planning level on the site and creates an attractive, activated edge to the Schofields Neighbourhood Centre, allowing pedestrians to circulate freely between the on-grade parking and Railway Terrace. The continuation of the terrace to the south as the existing shops are redeveloped should be encouraged as it would provide level pedestrian access around the corner, above the flood planning level, between the on-grade parking and the footpath of Railway Terrace. The continuation of the raised, colonnaded terrace would provide pedestrian circulation level with the internal floor level of the new shops that are currently below the flood planning level.

  5. The community centre is some distance from the northern elevation of the fast-food premises and across the riparian corridor. The northern elevation, including the raised colonnaded terrace, in no way dictates the future development of the community centre. The proposal will provide a pleasant outlook, with a northern aspect, from the outdoor seating on the colonnaded terrace, across the riparian corridor, to the community centre. The future development of the community centre site should further enhance the visual connection between the community centre and the nearby neighbourhood centre.

  6. The proposal provides ample opportunities for informal neighbourhood interaction as part of the neighbourhood centre. The food and drink premises, probably a café, with north-facing outdoor seating overlooking the riparian corridor, will likely be a popular local meeting place, as will the fast-food premises and the outdoor seating on the colonnaded terrace. The scattered seating along the pedestrian and cycle pathway next to the riparian corridor will provide a contemplative place to rest or meet.

  7. In Mr Smith’s opinion, the proposal is consistent with the objectives and the character statement at Section 5.1 of Sch 2 to DCP 2010, because it contributes to a vibrant village centre with the provision of pedestrian paths that link Railway Terrace to Rothwell Lane and the reserve to the east; the uses serve the needs of both the direct and broader community; the open space is directly accessible from the food and drink premises; the proposal is compatible in scale with both the existing and future development likely in the neighbourhood centre and provides a human scale form appropriate for the hierarchy of the centre and the development standards that apply; outdoor spaces are integrated with the commercial and retail uses for the site and the uses orientate towards and activate the outdoor space, contributing to the improved amenity and character of the centre; and the majority of the site is retained for open space and will be re-vegetated as a conservation area.

  8. Mr Smith noted that the proposal provides a pedestrian/bike route along the edge of the riparian corridor and provides activation of the rear of the site that will connect with future development on the property recently sold by the Council, previously designated as a carpark. This will activate Rothwell Lane. In his view, providing a car park on-grade is characteristic of other centres in the area. The provision of some on-grade car parking is important for the vibrancy and convenience of shoppers and provides activation of the space when there are less pedestrians.

  9. I accept and agree with Mr Smith’s evidence.

Figure 5-2 “Schofields Neighbourhood Centre – desired future character” of Schedule 2 Riverstone Precinct to DCP 2010

  1. The planning experts agreed that the diagram at Figure 5-2 of Sch 2 to DCP 2010 (Ex 2 f 237) was prepared over a decade ago before the railway station was constructed in an alternative location to the south of the neighbourhood centre. They noted that the diagram is labelled “draft”, it shows the site as a green space with the only development being a children’s playground; it shows a carpark on land to the east of Rothwell Lane which the Council has since sold; and for these reasons the planners agreed little wight should be given to the curtailment by the proposal of the vistas shown in the diagram.

  2. According to Ms Castellanos, the diagram at Figure 5-2 is as important as the objectives at Section 5.1 Development principles – Schofields neighbourhood Centre.

  3. According to Mr Smith, the detailed contents of the diagram at Figure 5-2 should be given little weight for the following reasons:

  1. The site is shown as undeveloped and indicates the site will be used as “The Green” a children’s playground and a connection for a pedestrian overpass.

  2. The land use zoning and development controls for the site suggest that this is no longer relevant. Including reference to the two-storey building height – which now permits 5 storeys.

  3. Other features of the figure also have not been adopted in subsequent decisions of council. For example: the Art and Craft workshop studios is a mixed-use retail and residential development.

  4. The on-grade carpark land has been sold, the pedestrian overpass is located where the markets were proposed.

  1. The diagram at Figure 5-2 illustrates a now outdated designer’s “vision” for the future development of the Schofields Neighbourhood Centre, it is not a masterplan. It is an illustration of some urban design ideas, based on identified opportunities and constraints. It pays little attention to property boundaries or land ownership, and there is no reference to flooding impacts. It ignores the creek as a riparian corridor, other than identifying it as part of “the green” area, and it does not distinguish between land zoned for environmental conservation and public recreation. The diagram ignores that the area designated for a public park is in private ownership and is zoned B1. The diagram is merely an idea, or a vision for the area. It is not at a level of resolution that it can be literally applied as a series of DCP controls. I agree with Mr Smith’s analysis of the diagram at Figure 5-2.

  2. The diagram at Figure 5-2 includes a reference to Bicentennial Park, Pymble, “state of the art children’s playground” and “high quality of bike and walking tracks”. Bicentennial Park at West Pymble is a vast parkland, mostly zoned for public recreation with a smaller area zoned for environmental conservation (see the land zoning map of the Ku-ring-gai Local Environmental Plan 2015 Map Sheet LZN_008). The “state of the art children’s playground” at the Bicentennial Park at West Pymble is located on RE1 zoned land. In contrast, the riparian area around the creek on the site is zoned E2 and the area on the site identified as the location for the children’s playground is not zoned for recreation, it is zoned for the development of the neighbourhood centre. Had the Council wanted to implement the diagram as a masterplan for the Schofields Neighbourhood Centre, the Council would have had to have taken a number of significant steps to realise the “park” shown on the site in the diagram, including land acquisition and rezoning.

  1. The diagram at Figure 5-2 relies on the pedestrian overpass to channel pedestrian traffic into the site. The overpass has since been located further to the south when compared to the position indicated by the diagram.

  2. The site on the corner of Rothwell Lane and Station Street, formerly owned by the Council and identified as part of the on-grade parking area by the diagram, has since been sold by the Council and is in private ownership.

  3. The diagram at Figure 5-2 envisages the replacement of the existing shops along Railway Terrace with a slip lane into kerbside parking in front of the shops, parallel to Railway Terrace. This configuration would require the demolition of all the existing buildings in the B1 zone along Railway Terrace to the north of Station Street. This is contrary to the Council’s position that the existing shops fronting Railway Terrace provide the “fine-grained, intimate scale of development” to which the future development of the site must conform.

  4. The proposal is consistent with the following urban design ideas illustrated by the diagram at Figure 5-2:

  1. The diagram envisages a frontage for the neighbourhood centre to both Railway Terrace and Rothwall Lane. The proposed driveway exit and entry to Rothwell Lane will encourage the activation of the B1 zoned land fronting Rothwell Lane.

  2. The diagram envisages on-grade parking with convenient pedestrian access to the neighbourhood centre. The proposal provides on-grade parking for 20 cars for convenient vehicular access the neighbourhood centre.

  3. The diagram envisages green pedestrian and cycle connectivity through the riparian corridor. The proposal provides pedestrian and cycle pathways through the site.

  4. The diagram envisages an opportunity for the neighbourhood centre to have an aspect towards the riparian corridor and parkland.

  5. The diagram envisages a northern pedestrian terrace overlooking the park and riparian corridor, that is shown as a level terrace with steps down to the parking area in Rothwell Lane. The proposal includes two north-facing terraces with outdoor seating overlooking the park to the east and the riparian corridor.

  6. The diagram makes reference to childcare as part of the neighbourhood centre. The proposal includes a childcare centre.

  7. The diagram envisages the future expansion of the neighbourhood centre in the eastern portion of the site. The three-storey building of the proposal is located in a position indicated as the future expansion of the neighbourhood centre.

  1. I am satisfied that the proposal is broadly consistent with the ideas expressed in the diagram and assists in achieving the some of the design principles for the Schofields Neighbourhood Centre illustrated by the diagram.

The proposal is consistent with the character statement for the Schofields Neighbourhood Centre

  1. The proposal is consistent with the character statement for the Schofields Neighbourhood Centre at 5.1 of Sch 2 Riverstone Precinct to DCP 2010 for the following reasons:

  1. The character statement identifies that the “future sustainability of the centre lies in its ability to take on a special ‘village’ character that will be supported by future development”, with retail and commercial activities that have the potential to capture more specialised or niche markets less likely to be provided in local centres or commercial cores. The proposal, being part of that ‘future development’, will contribute to the special village character that is achieved by a viable neighbourhood centre that provides a range of small-scale retail, business and community uses that serve the needs of people who live in the surrounding neighbourhood. The uses proposed should each contribute to the long-term viability of the centre. A take-away food and drink premises is identified by DCP 2010 as a use that may contribute to the long-term viability of the centre and which would be consistent with the desired future character of the centre.

  2. The proposal integrates retail and commercial activities with outdoor spaces, including highly activated spaces such as the north-facing terraces with outdoor seating around the food and drink premises, and the fast-food premises. Those north-facing terraces overlook landscaped areas, the carpark and the riparian corridor. The terraces are connected by footpaths through the site and easy access to on-grade parking.

  3. The on-grade carpark has an informal layout and is sufficiently small so as not to dominate the site and to retain the landscaped character of the riparian corridor adjacent. The provision of easily accessed and legible car parking encourages casual visits and contributes to the viability of the neighbourhood centre.

  4. The proposal will attract visitors and provide local access to food and drink premises, a childcare centre and a gymnasium. The continued development of the neighbourhood centre will likely build on the success of this development to provide other complementary retail and services for the local community.

Built form and scale between the three-storey building and the adjoining residential development

  1. The planning experts agreed that there is no transition in built form provided between the three-storey building and the adjoining residential development, and that the setback of the upper floors of the three-storey building to the shared boundaries of residential development is 5 to 6.3m.

  2. The planning experts disagreed on whether the three-storey building is appropriately located adjoining residential development to the east and south of the site.

  3. According to Ms Horder, although the southern setback of the three-storey building does not result in any amenity impacts on the adjoining residential development, the building form should provide a better transition between the three-storey building proposed and the future, likely, two-storey development in the residential zone. She is concerned about the view of the three-storey building from 9B Station Street.

  4. In Ms Horder’s opinion, the proposal should provide a 6m setback from the shared boundaries of residential development, consistent with control 6 of 5.2.2 of DCP 2010 (quoted above at [34]), to adequately provide a transition in scale from the three-storey building to the residential development. In Ms Horder’s view, the three-storey building could be better located on this large site away from the residential development, to provide a transition in scale between the two zones.

  5. In Mr O’Connor’s opinion, the zero-side setback control applies to the three-storey building, at control 4 of 5.2.2 of DCP 2010 and the proposal exceeds the required setback. Mr O’Connor noted that the side setback provides deep soil for landscaping. According to Mr O’Connor, the change in scale between the three-storey building and the adjoining residential development is what is to be expected at the zone boundary between B1 and R2, as the change in the height of buildings development standard is 17m to 9m between the zones.

  6. The planning experts agreed that the overshadowing caused by the three-storey building meets the requirements of DCP 2010 for solar access and is acceptable, because 9B and 9 Station Street are not overshadowed by the proposal in midwinter until after 2pm; and 5 and 7 Station Street receive solar access to at least 50% of their private open space in midwinter during the morning and the windows of habitable rooms receive solar access until 2pm.

  7. I am satisfied that the scale and configuration of the three-storey building is compatible with the adjoining residential development. Clearly, the zero-side setback control is intended for adjoining shops fronting a street, as shown in the “typical elevation” of Figure 5-1 of DCP 2010, to create a continuous street wall in a shopping centre. The circumstance in the south-eastern corner of the site, where a B1 zone has an interface with the side and rear boundaries of low-density residential development, and land zoned for recreation, is a unique configuration and the zero-side setback control should not be applied.

  8. I accept Mr O’Connor’s evidence that the change in scale between the site and the adjoining residential development is anticipated by the development standards that apply, and the proposal is less that the height anticipated by the height of buildings development standard. I accept the agreement of the planning experts that the three-storey building does not result in any unacceptable amenity impacts on the adjoining residential properties. I am satisfied that the 5 to 6.3m landscaped setback is adequate in the south-eastern corner of the site to maintain the reasonable amenity of the adjoining residential properties.

The pylon signs are to be deleted by condition

  1. The urban design experts agreed in their joint report that the two pylon signs could be deleted, however, in oral evidence, Mr Smith supported the retention of the pylon signs on the basis that the relevant control of 5.2.3 of DCP 2010 does not address proposed pylon signs in areas other than active street frontages.

  2. The pylon signs are, by intention, conspicuous. They are not in keeping with the character of a neighbourhood centre. The pylon signs are contrary to the first objective for signs, at 5.2.3 of DCP 2010. The pylon signs are to be deleted.

The fast-food premises and colonnaded terrace and outdoor seating are consistent with the objectives for active street frontages

  1. The Council contends that the proposal does not provide an active street frontage or street address to Railway Terrace which is inconsistent with the objectives and desired future character for the area.

  2. The planning experts agreed that an active street frontage and an awning to Railway Terrace are required by the DCP 2010 controls. In Mr O’Connor’s opinion, it is not appropriate to provide a separate entry to the fast-food premises with internal stairs, as this would not activate the street front. In his view, the colonnaded terrace activates the street frontage, and the colonnaded terrace could be extended south as the neighbouring shops are re-developed. The provision of a colonnaded terrace means that it is not practical to extend the awning further to the north beyond the stairs accessing the terrace as all-weather protection is provided, and the objective of street activation is achieved.

  3. According to Ms Horder, the front setback and proposed colonnade is disharmonious with the adjoining development to the south and objectives and controls under Section 5.2.1 of DCP 2010. In particular, the treatment to Railway Terrace will disrupt and dissuade pedestrian activity due to the change in levels. In her view, the proposal is deficient in terms of its integration with the existing built form and desired character of the centre.

  4. The provision of a colonnaded terrace and outdoor seating area is an ideal solution to the constraint of the flood planning level requiring the retail space to be at RL 20.6 and the fall of the site which drops away below the flood planning level at the north-western corner. The colonnaded terrace forms the north-western edge of the neighbourhood centre and provides level access between the on-grade parking and the food and drink premises. The outdoor seating area activates the street frontage, consistent with the objective for active street frontages, and provides a pleasant outlook over the riparian corridor and visual connections between the community centre to the north, and the parking area to the north-east. I accept the applicant’s position that the provision of the colonnaded terrace will likely generate a continuation of the terrace in front of the future re-developed shops fronting Railway Terrace, until the footpath level rises above the flood planning level. The colonnaded walkway is a superior outcome when compared to individual retail premises providing an entry level and a stair to an internal space above the flood planning level, because the retail shopfront/s are connected via a level walkway to the accessible car parking space and other car parking spaces in the on-grade carpark for people requiring level access, including those wheeling prams. The colonnaded terrace provides a legible, activated circulation space. The fast-food premises is a well-designed building, and a thoughtful response to the constraints and opportunities of the site. It is at a scale that is consistent with the scale of buildings anticipated in a neighbourhood centre.

  5. I accept Mr O’Connor’s view that the awning extends as far as is necessary, to provided covered access to the stair between the footpath to Railway Terrace in front of the site and the colonnaded walkway. The diverging of the footpath parallel to Railway Terrace, away from the site’s western boundary, further justifies the proposed northern end of the awning. The colonnaded terrace forms an edge of the neighbourhood centre, and so the awning need only extend as far as the stair access to the covered colonnaded terrace.

  6. I am satisfied that the proposal is consistent with the objectives for streetscape and architectural design at 5.2.1.1 of DCP 2010.

Vehicular access and movement priority over amenity and landscaping

  1. The Council contends that the proposal is heavily dominated by hardstand and vehicular circulation with pedestrian movement, landscaping and amenity overlooked.

  2. The planning experts agreed that the carpark, which could potentially be used as a gathering space, receives optimal solar access in midwinter as it has a northern orientation.

  3. The proposal is not heavily dominated by hardstand and vehicular circulation. There is a driveway through the site to connect Railway Terrace and Rothwell Lane, with car parking and loading on either side of the driveway. The driveway follows the irregular southern edge of the riparian corridor, reflected in the zoning map as the edge between E2 and B1, and then turns to connect with Rothwell Lane. The drive through to the fast-food premises is a discrete loop off the driveway.

  4. The pedestrian routes meander through the site along the southern edge of the riparian corridor, on the northern edge of the parking area, and on the southern edge of the parking area, between the fast-food premises and the food and drink premises, the gymnasium and the childcare centre. There are two pedestrian crossings across the parking area and the driveway. The vehicular route does not dominate the pedestrian route, it has the character of a shared zone. Areas of landscaping, including deep soil areas, are scattered throughout the site, to give the impression that the riparian corridor slowly thins out across the site. The site has good amenity, as the fall and the outlook are to the north and over the riparian corridor.

Aesthetics and materiality

  1. I accept the planning experts’ agreement that the visual appearance of the acoustic glass as elevations facing the neighbours to the east and south is acceptable.

  2. On the basis of the Materials and Finishes Plan A-904 filed with the Court on 27 September 2022, I am satisfied that the proposal is consistent with the objectives for external building materials and colours at 6.4.3.1 of DCP 2010, because the materials are earthy, non-reflective, and create legible, attractive and safe entrances to both buildings.

Riparian management

  1. The Council contends that insufficient information has been provided to enable a proper assessment of the likely impacts on riparian values.

  2. The parties agreed the site is “waterfront land” as defined by the Water Management Act 2000 (Water Management Act). The application is integrated development within the meaning of s 4.46(1) of the EPA Act, because the proposal requires a Controlled Activity approval (s 91(2) of the Water Management Act).

  3. The application includes an amended Vegetation Management Plan (“VMP” Ex D) and a Groundwater Assessment Report (Ex E).

  4. I accept the agreement of the ecology experts that the amended VMP has adequately addressed the Council’s contention that insufficient information has been provided to enable a proper assessment of the likely impact of the proposal on biodiversity values.

  5. I accept the agreement of the ecology experts that it is not appropriate to extend the life of the VMP beyond 5 years because, according to Dr Henderson, the purpose of the VMP is to improve the quality of the riparian corridor and this project will have been achieved at the conclusion of 5 years. The ecology experts agreed that some maintenance of the riparian corridor will be required beyond 5 years.

  6. The application was referred to the Natural Resources Access Regulator (NRAR) by the Council and NRAR provided general terms of approval (GTAs) on 11 November 2020 (Ex 2, f 14). The GTAs issued by NRAR do not constitute an approval under the Water Management Act, as the consent holder must apply to NRAR for a Controlled Activity approval after consent has been issued by the Council and before the commencement of any work or activity (Ex 2, f 454).

  7. The Water Management (General) Regulation 2018 includes, at Sch 2, Stream order of a watercourse, with the title, “The Strahler system”, as follows:

The Strahler system

“The method of determining the stream order of a watercourse shown on a topographic map is the Strahler system.

The Strahler system is as follows—

(a) Any watercourse that has no other watercourses flowing into it is classed as a first order stream.

(b) If 2 streams join, the resulting stream is—

(i) the same order as the highest order of the 2 streams, or

(ii) if the 2 streams are of the same order, the order greater than that of the 2 streams.

For example, in the diagram below—

(a) If 2 first order streams join, the stream becomes a second order stream (2).

(b) If a second order stream is joined by a first order stream, it remains a second order stream.

(c) If 2 second order streams join they form a third order stream (3).

(d) If a third order stream is joined by a first or second order stream, it remains a third order stream.

(e) If 2 third order streams join they form a fourth order stream.”

  1. The ecology experts disagreed whether the unnamed tributary, which flows into Eastern Creek (part of the Hawkesbury-Nepean River catchment), that runs across the northern portion of the site, is a first order stream or a second order stream. In Mr Anderson’s opinion, the stream is a first order stream, and in Dr Henderson’s opinion, the stream is a second order stream.

  2. According to the “Guidelines for controlled activities on waterfront land” published by the NRAR (“the Guidelines”), a first order stream requires 10m vegetated riparian zone (VRZ) on either side of the stream, and a second order stream requires 20m VRZ on either side of the stream (Ex 2, f 389). The Guidelines include the following text (Ex 2, f 389):

Objectives for riparian corridor management

“The overarching objective of the controlled activities provisions of the WM Act is to establish and preserve the integrity of riparian corridors.

Ideally, the environmental functions of riparian corridors should be maintained or rehabilitated by applying the following principles:

• identify whether or not there is a watercourse present and determine its order in accordance with the Strahler System

• if a watercourse is present, define the RC/VRZ on a map in accordance with Table 1

• seek to maintain or rehabilitate a RC/VRZ with fully structured native vegetation in accordance with Table 1

• seek to minimise disturbance and harm to the recommended RC/VRZ

• minimise the number of creek crossings and provide perimeter road separating development from the RC/VRZ

• locate services and infrastructure outside of the RC/VRZ. Within the RC/VRZ provide multiple service easements and/or utilise road crossings where possible.

• treat stormwater run-off before discharging into the RC/VRZ.”

NRAR however, does allow for a range of works and activities on waterfront land and in riparian corridors to better meet the needs of the community, so long as they cause minimal harm as outlined in the riparian corridor matrix below.

  1. The Riparian Assessment Report by Anderson Environment and Planning (AEP) dated 6 July 2022 (Ex B, tab P) includes a “Desktop Stream Order” map (Figure 3) that shows the stream on the site as “2”; and a “Ground-truthed Stream Order” map (Figure 6) that shows the stream on the site as “1”. The Riparian Assessment Report determined the VPZ as a buffer of 10m (Figure 8).

  2. The ecology experts agreed that the Office of Water 2012 FAQ document regarding Strahler order effect is clear that downstream Strahler Order is not changed by upstream classification.

  3. According to Dr Henderson, when NRAR agrees to the extinguishment of first order streams, other streams are then not re-ordered. NRAR maintains the mapped stream ordering beyond an extinguished first order stream. The mapped hydroline dataset is not altered by NRAR. Dr Henderson considers that the VRZ has been incorrectly calculated at 10m and it should be 20m.

  4. According to Mr Anderson, the Strahler Order and derived VRZ presented in the Riparian Assessment Report (Ex B, tab P) is correct.

  5. I am satisfied that sufficient information has been provided as part of the application and that it is appropriate to grant development consent for the proposal based on a 10m VRZ for the following reasons:

  1. The 10m VRZ is consistent with the zoning map (extract above at [22]) which zones the southern edge of the 10m VRZ as the boundary between the E2 and B1 zones.

  2. The NRAR issued GTAs based on a 10m VRZ. I accept the agreement of the ecology experts that the NRAR issued GTAs on the basis that the stream is a first order stream. I accept that the GTAs are not a Controlled Activity approval, however, the NRAR must have at least considered the proposal in issuing the GTAs, including, critically, the 10m VRZ, because “Schedule 1” to the NRAR’s GTAs includes the list of documents provided by the Council to the NRAR and which are referred to in the GTAs. Had the NRAR had an initial concern about the 10m VRZ, presumably the GTAs would not have been issued to Council.

  3. The Guidelines (quoted above at [95]) permit an applicant to identify whether there is a watercourse present on the site and if so, to determine its order in accordance with the Strahler System and its VRZ according to the table in the Guidelines. The applicant has done so in the Riparian Assessment Report.

  4. The Riparian Assessment Report has prepared a “Ground-truthed stream order” map (Ex B, tab P, Figure 6) and determined that the stream is a first order stream which requires a VRZ of 10m. I accept the findings of the Riparian Assessment Report that a VRZ of 10m on the site is appropriate.

  5. There remains an opportunity for the NRAR to adjust the VRZ when the development consent holder applies to the NRAR for a Controlled Activity approval after consent has been granted and before the commencement of any work or activity.

Childcare Centre details

  1. I accept the agreement of the planning experts that the information provided by the application in relation to the childcare centre is sufficient.

  2. The planning experts disagreed on whether the childcare centre has optimised solar access to internal areas. According to Ms Horder, the solar access to Room 1 of the childcare centre is insufficient as it does not comply with Section 4.4 of the Child Care Planning Guideline (Ex 2, f 298F, quoted above at [36]).

  3. According to Mr Smith, the childcare proposal complies with the guidelines. The emphasis in the guidelines in relation to “natural light” is to prioritise daylight over artificial light. In Mr Smith’s opinion, Room 1 is well lit by natural light as it also has windows in the western façade.

  4. I accept and prefer Mr Smith’s evidence in relation to the design guidance for ventilation and natural light in the Child Care Planning Guideline. Every activity room in the childcare facility is orientated north and has direct access to an outdoor play area. The multi-level building means that the northern outdoor play area on Level 1 is covered by the slab that forms the outdoor play area of the level above. Nevertheless, the northern aspect for all activity rooms is ideal and each activity room will have ample natural light during the day.

Conditions of consent

  1. The parties filed the updated conditions of consent on 7 October 2022 (the filed conditions of consent). In the filed conditions of consent, seven conditions were disputed by the applicant. The parties added a short note under each disputed condition summarising their positions.

Condition 4.2.8

  1. Condition 4.2.8 requires a detailed design road safety audit (RSA) to be conducted by a TfNSW accredited independent road safety audit team and the report is to be provided to Council for review.

  2. The applicant seeks the deletion of the condition as this issue was not raised as a contention by the Council. The Council submits that the condition is a condition commonly imposed, as a range of potential safety issues could arise, and road works would typically require a RSA.

  3. I accept and prefer the Council’s submission. The condition merely requires the RSA to be provided to Council for review.

Condition 4.2.10(a)

  1. Condition 4.2.10(a) requires the updating of the ground floor plan to show bollards and wheel stop (as agreed by the traffic experts in Ex L and shown on the final iteration of the architectural plans).

  2. The applicant seeks the deletion of the condition as the amendments are shown on the final iteration of the architectural plans. The Council submits that the condition should be imposed because the bollards and wheel stop would not be “mandatory requirements” if they are indicated only on the approved architectural plans.

  3. I accept and prefer the applicant’s position. The bollards and wheel stop are shown on the final iteration of the architectural plans. I do not accept the Council’s submission because there is no such thing as “non-mandatory requirements” regarding documentation that forms part of the development consent unless changes are required by condition. Future certification of the development is required to be consistent with the development consent.

Conditions 15.2 and 15.3

  1. Condition 15.2 requires the VMP to be updated to identify the correct plant community type and extent on the retained land. The amendments must include updating the proposed planting list consistent with the correct published list of plants according to the Bionet Vegetation Classification data set.

  2. Condition 15.3 requires the VMP to be implemented in perpetuity and weed densities must be continually supressed and destroyed after the VMP implementation phase.

  3. The applicant seeks the deletion of both conditions, on the basis that the ecology experts agreed that the amended VMP (Ex D) included the information required by condition 15.2, and the ecology experts agreed that it is not appropriate to implement the VMP in perpetuity, as that is not the purpose of the document. The Council submits that the species list should be updated and the VMP should be implemented in perpetuity.

  4. I accept and prefer the applicant’s position because it is consistent with the oral evidence of the ecology experts. Dr Henderson’s oral evidence was that the specific purpose of the VMP is to rehabilitate the riparian corridor so as to reinstate the native bushland that has been lost, and this project will be completed by the implementation of the VMP over the 5-year period. Her evidence was that active maintenance of the riparian corridor will be required after the 5-year period, but that it was not appropriate to extend the life of the VMP beyond the 5-year period.

Condition 22.1.1(iv)

  1. Condition 22.1.1(iv) requires the VMP to be implemented and revised as required.

  2. The applicant seeks the deletion of the condition because the amended VMP includes the information that had been sought in the ecology experts’ joint report, and the Council submits that the ecology experts agreed that the species list was to be revised.

  3. I accept and prefer the applicant’s position. The (amended) VMP is to be implemented and this condition, requiring the implementation of the VMP, is retained. The “revised as required” is deleted.

Condition 23.13.2

  1. Condition 23.13.2 requires the removal of two pylon signs in favour of signage on the façade of the buildings.

  2. The pylon signs are not in keeping with the character of a neighbourhood centre. The pylon signs are contrary to the first objective for signs, at 5.2.3 of DCP 2010. The condition is retained.

Condition 24.1

  1. Condition 24.1: final bullet point requiring the fast-food premises to conduct a weekly litter clean up within a 200m radius of their store. The waste management plan must be updated to this effect.

  2. The applicant proposes a litter patrol radius of 50m and submits that there are other take-away food premises in the vicinity of the fast-food premises, making the 200m radius unreasonable.

  3. I accept the applicant’s criticism of the terms of the condition and the condition is amended to require the weekly litter clean-up to be confined to packaging rubbish from the fast-food premises within a 200m radius of the premises.

Condition 27

  1. Condition 27 requires the VMP to be implemented in perpetuity and weed densities must be continually supressed and destroyed after the VMP implementation phase.

  2. The applicant seeks deletion of the condition, on the basis that the amended VMP is referred to in Condition 3.1.1 and applies according to its terms (including in relation to the preparation of annual reports) for a period of 5 years. After that time, the landowner will be subject to other legislation in relation to the management of the conservation land. This condition is also unnecessary given the ongoing obligations imposed by condition 22.1. The applicant is willing to register the VMP on title.

  3. The Council submits that the VMP should be implemented in perpetuity as the experts agreed to additional and ongoing management. The VMP provides a mechanism for action and enforcement.

  4. I prefer and accept the applicant’s position.

Conclusion

  1. I am satisfied, the basis of the evidence before me, that, pursuant to cl 6.4(6)(b) of the Precinct Plan, as little native vegetation as possible will be disturbed in the area of the site identified as a native vegetation regeneration area.

  2. The Council’s fundamental issue with the proposal is the provision of a drive through facility for the fast-food premises. I understand the Council’s concern that a drive through facility to a fast-food premises can dominate circulation within a shopping centre and erode a suburban village centre character, and that the Council wants the Schofields Neighbourhood Centre to have a cohesive and attractive local shopping centre atmosphere for the community. Having considered the Council’s position, I am satisfied that the design and location of the drive through proposed is acceptable because it is discrete, it does not disrupt the vehicular and pedestrian thoroughfares through the site, and it does not dominate the proposal, in the way the parking and drive-through dominate the Schofields Village Centre (Ex 7, Appendix K). I am satisfied that the proposal is highly responsive to the site, using the riparian corridor as a green edge, with landscaped area across the site and a spacious layout to create meandering pedestrian footpaths, convenient on-grade parking along an informal driveway though the site that does not dominate the place, and a suburban village-centre character.

  3. The proposal is a well-designed, thoughtful response to the brief because it responds to the site’s opportunities and constraints, rather than being imposed upon the site. The proposal is a thoroughly site-specific design solution. I am satisfied that the proposal is consistent with the objectives for the B1 zone, the principles and objectives for development in local and neighbourhood centres, and the objectives and character statement for the Schofields Neighbourhood Centre.

Orders

  1. The orders of the Court are:

  1. The appeal is upheld.

  2. Development Application No. 20-01284 for the construction and use of a three-storey commercial building consisting of basement car parking, food and drink premises on ground floor, gymnasium on ground and mezzanine floors and a childcare centre on levels 1 and 2; the construction and operation of a take away food and drink premises with drive through facility; associated car parking, landscaping and signage; and consolidation of the existing 3 lots into 2 new lots, at 81-91 Railway Terrace, Schofields, is approved, subject to the conditions of consent at Annexure A.

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

____________

Susan O’Neill

Commissioner of the Court

341648.21 (Annexure A)(491648, pdf)

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Decision last updated: 26 October 2022

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