Kirovski v Georges River Council

Case •

[2025] NSWLEC 1325

•

09 May 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Kirovski v Georges River Council [2025] NSWLEC 1325
Hearing dates: 9-11 December 2024 and 13 February 2025
Date of orders: 09 May 2025
Decision date: 09 May 2025
Jurisdiction:Class 1
Before: Porter C
Decision:

The Court orders:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application, as agreed or assessed.

(2) The appeal is dismissed.

(3) Development application DA-2023/0468 for demolition of the existing structures and construction of a four storey centre based child care centre at 8 Gover Street, Peakhurst is determined by refusal of consent.

(4) The exhibits are returned except for A, B and 1.

Catchwords:

DEVELOPMENT APPEAL – multi storey - centre based child care facility – car parking – car stacker – landscaping - design excellence – insufficient information

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7, 8.15

Land and Environmental Court Act 1979, s 39

Environmental Planning and Assessment Regulation 2021, 38

Georges River Local Environmental Plan 2021, cll 6.10, 6.12

Cases Cited:

Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641

Texts Cited:

Child Care Planning Guideline 2021

Education and Care Services National Regulations 2011

Category:Principal judgment
Parties: Stephanie Kirovski (Applicant)
Georges River Council (Respondent)
Representation:

Counsel:
H Grace (Applicant)
M Staunton (Respondent)

Solicitors:
Bartier Perry (Applicant)
Georges River Council (Respondent)
File Number(s): 2023/452834
Publication restriction: Nil

JUDGMENT

  1. COMMISSIONER: This appeal is about the density and design of a proposed four-five storey child care centre in a high density residential area.

  2. The Applicant, Stephanie Kirovski (Kirovski) has appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) Georges River Council’s (Council) refusal of Development Application No. 2023/0468 (DA). The DA seeks consent for the demolition of existing structures, tree removal, construction of a four-five storey centre-based child care facility with basement parking, associated earthworks and landscaping at 8 Gover Street, Peakhurst.

  3. For the reasons set out, I find that the deficient car parking, proposed use of car stackers, regimented car parking timetable and inability for cars to pass in the basement in a sensitive development such as a child care centre are indicative of a development that has sought more child care places than can be accommodated on the site. I also find that the proposed development does not provide sufficient landscaping to meet the landscaping and design excellence preconditions to consent.

Amended Application

  1. At the hearing, Kirovski sought and was granted leave to amend the DA pursuant to s 39 of the Land and Environment Court Act 1979 and s 38 of the Environmental Planning and Assessment Regulation 2021. The amendment was unopposed by Council (amended DA), with the parties agreeing that the amendments were not minor and a costs order is made pursuant to s 8.15(3) of the EPA Act. The amendments are summarised as:

  1. Amended Architectural Drawings prepared by BDAA Revision 6 (architectural plans).

  2. Amended Landscape Plans prepared by Greenland Design Issue G (landscape plans).

  3. Amended cl 4.6 written request prepared by Avenue Town Planning (written request).

  4. Amended waste management plan prepared by Femme Build Revision 5.

  5. Amended Plan of Management prepared by Femme Build Revision 6 (PoM).

  6. Further acoustic letter prepared by Koikas Acoustics dated 9 December 2024.

  1. The amendments included:

  1. An overall increase in height by 400mm, including increase in floor to ceiling heights.

  2. Level 2 outdoor area reduced in depth by 1m to facilitate solar access.

  3. Reduction in child care places from 52 to 50.

  4. Changes to gross floor area calculations and landscaping calculations.

  5. Bin cleaning facilities.

  6. Further details added to plans (i.e services, RL levels, bin paths).

  7. Separation shown between active and passive play areas.

  8. Further overshadowing diagrams.

The site and context

  1. The subject site comprises 8 Gover Street, Peakhurst, legally known as Lot 161 in DP 36317. The site is an irregular shaped site, described as quadrilateral with a frontage of 19.25m, rear boundary of 15.85m and total site area of 638.6m2. The site slopes to the rear by approximately 3m.

  2. At the site viewing, the Court was shown a photograph and video of the adjoining rear levels, which drops in ground level through retaining elements at the rear site. This level change is generally characteristic of the block.

  3. With the parties, the Court viewed the block, reserve, pathway from the reserve to the site and child care centres discussed in the joint expert reports.

  4. It was observed at the site viewing that development in the area is in transition. Low density dwelling homes are being redeveloped into 3 storey residential flat buildings. There are a mix of some four storey buildings and elements as well as two-three storey townhouses and dual occupancies. Single entry basement garage entries were observed and setbacks in the area were mixed.

  5. The site is zoned R4 High Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP) with a maximum height of 12m and FSR of 1.1

Key Issues

  1. At the hearing, Council pressed the following contentions in its Amended Statement of Facts and Contentions (ASOFAC) (Ex 1):

  1. Bulk and scale.

  2. Height exceedance.

  3. Design excellence.

  4. Landscaping.

  5. Site isolation.

  6. Outdoor place space.

  7. Internal amenity.

  8. Inadequate car parking provision and design.

  9. Traffic and safety impacts.

  10. Acoustic impacts - resolved by the amended DA.

  11. Waste management - resolved by the amended DA.

  12. Stormwater management - resolved by the amended DA and owners consent from the adjoining neighbour.

  13. Insufficient information - resolved by the amended DA.

  1. The issues can be distilled as:

  • Parking.

  • Building design.

  • Landscaping.

  • Amenity.

Expert Evidence

  1. Expert evidence about the contended issues was heard from:

Applicant

Council

Traffic

Thomas Steal

Paul Corbett

Town Planning

Benjamin Black

Heather Warton

Urban Design

Benjamin Black

Roopali Pandey

Acoustic

Adam Semple

Richard Haydon

Landscape

Bao Ly

Craig Kenworthy

Stormwater

Derek Yang

Firoz Ahmed

Waste

Benjamin Black

James Cosgrove

  1. The traffic engineers, landscape architects, town planners and urban designers gave oral evidence at the hearing.

Public Submissions

  1. The DA was notified to surrounding properties from 7 November 2023 to 30 November 2023, where 8 submissions objecting to the development were received by Council. An additional / revised submission was submitted shortly before the hearing. The issues raised are summarised below, in no particular order:

  1. Increased traffic impacts on a narrow road which lacks on-street parking. Two way passing is unavailable.

  2. The Trafalgar Street conditions are better than Gover Street, allowing better traffic management for that child care centre.

  3. Safety.

  4. Noise.

  5. Impacts from a commercial development in a residential area.

  6. Reduction in property values.

  7. Privacy.

  8. Existing construction impacts.

  9. Height / number of storeys.

Landscaping

  1. Council contends that the proposed landscaping is inadequate, deficient in its ongoing maintenance plan and would result in a poor landscape outcome for the site and locality. The result of which would be inadequate planting to screen the proposed development and inadequate landscaped play spaces for children. Council also contends that the lack of a ground floor outdoor play area is a missed opportunity for play and learning. The relevant planning controls and guidelines identified in the ASOFAC are set out below:

  2. Clause 6.12 landscaped areas in certain residential and conservation zones of the GRLEP states:

(1)  The objectives of this clause are as follows—

(a)  to ensure adequate opportunities exist for the retention or provision of vegetation that contributes to biodiversity and enhances the tree canopy of the Georges River local government area,

(b)  to minimise urban run-off by maximising permeable areas on the sites of development,

(c)  to ensure that the visual impact of development is minimised by sufficient and appropriately located landscaping that complements the scale of buildings,

(d)  to ensure that the use of surfaces that absorb and retain heat are minimised.

(2)  This clause applies to development involving the erection of a new building, or external alterations or additions to an existing building, resulting in an increased building footprint on land in the following zones—

…

(c)  Zone R4 High Density Residential,

…

(3)  Despite subclause (2), this clause does not apply to residential apartment development within the meaning of State Environmental Planning Policy (Housing) 2021.

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

(a)  allows for the establishment of appropriate plantings—

(i)  that are of a scale and density commensurate with the height, bulk and scale of the buildings to which the development relates, and

(ii)  that will maintain and enhance the streetscape and the desired future character of the locality, and

(b)  maintains privacy between dwellings, and

(c)  does not adversely impact the health, condition or structure of existing trees, tree canopies or tree root systems that are to be retained as part of the development on the land or adjacent land, and

(d)  enables the establishment of indigenous vegetation and habitat for native fauna, and

(e)  integrates with the existing vegetation to protect existing trees and natural landscape features such as rock outcrops, remnant bushland, habitats and natural watercourses.

(5)  Development consent must not be granted to development on land to which this clause applies unless at least the following percentages of the site area consists of landscaped areas or natural rock outcrops—

…

(f)  for development in Zone R4 High Density Residential—10% of the site area.

  1. Clause 6.10 design excellence of the GRLEP applies, which states:

(1) The objective of this clause is to deliver the highest standard of sustainable architecture and urban design.

(2) This clause applies to development on land referred to in subclause (3) involving—

(a) the erection of a new building, or

…

(b)  land in the following zones if the building concerned is 3 or more storeys or has a height of 12 metres or greater above ground level (existing), or both, not including levels below ground level (existing) or levels that are less than 1.2 metres above ground level (existing) that provide for car parking—

(i)  Zone R4 High Density Residential,

4)  Development consent must not be granted for development to which this clause applies unless the consent authority considers that the development exhibits design excellence.

(5)  In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters—

(a)  whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b)  whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c)  whether the development detrimentally impacts on view corridors,

(d)  how the development addresses the following matters—

…

(xi)  excellence and integration of landscape design.

  1. The following guidelines from the Child Care Planning Guideline 2021 (CCPG) are relevant:

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.

3.4 Landscaping

Landscaping of child care facilities can play an important role in integrating facilities into the surrounding streetscape and context. Good integration of facilities benefits neighbours and future residents.

…

Considerations

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

C17 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.

C18 Incorporate car parking into the landscape design of the site by: • planting shade trees in large car parking areas to create a cool outdoor environment and reduce summer heat radiating into buildings • taking into account streetscape, local character, pedestrian safety and context when siting car parking areas within the front setback • using low level landscaping to soften and screen parking areas.

3.3 Landscaping

Objectives

a) Contribute to the creation of a distinct landscape character for the Georges River LGA.

b) Protect existing significant trees and vegetation as outlined in Council’s Tree Management Policy and Appendices.

c) Promote healthy growth of canopy trees.

d) Reduce the visual and environmental impact of buildings, structures and hardstand. e) Create attractive, comfortable, functional and safe streets, public domain and private domain.

f) Complement and enhance the function of communal open space, private open space and setback areas.

g) Provide habitat corridors for local wildlife species.

h) Encourage infiltration of rainwater to the water table.

i) Reduce urban heat.

j) Protect existing natural rock outcrops.

Controls

1. Landscaping on site should be incorporated into the site planning of a development to (where appropriate):

i. Reinforce the desired future character of the locality;

ii. Maintain significant landscape features;

iii. Be consistent with any dominant species in the adjoining area of ecological significance;

iv. Incorporate fire resistant species in areas susceptible to bushfire hazard;

v. Provide planting within setback zones (setbacks identified within the relevant applicable parts of the DCP);

vi. Soften the visual impact of buildings, carparks and roads;

vii. Cater for outdoor recreation areas;

viii. Separate conflicting uses;

ix. Screen undesirable elements;

x. Provide opportunities for on-site stormwater infiltration, in particular around existing trees and vegetation;

xi. Consider the future maintenance requirements of landscaped areas;

xii. Protect the effective functioning of overhead, surface level or underground utilities; and

xiii. Improve the aesthetic quality of the development.

2. Landscape planting should achieve a mature height in scale with the structures on the site.

…

Planting on Structures

7. Where landscaping is provided in a structured environment such as a raised planter box or ‘on slab’ they should include waterproofing, drainage and automatic irrigation. The minimum plant material pot container sizes for trees should be 75 litres and minimum soil depth for shrubs 200mm and groundcovers 150mm.

8. Green roofs and walls must be provided in higher density urban environments where opportunities for deep soil landscaping are limited and/or where large walls face active areas of the public domain.

Evidence

  1. Mr Kenworthy for Council says that the lack of trees along the eastern and western side setbacks do not ameliorate the scale of the proposal. Of the four trees proposed in the rear setback, these are provided within an above ground OSD on stormwater piping and would be restricted in growth and lifespan. He says that the side setback areas do not provide any trees, and are mostly pathways for around half of the side setback areas. Mr Kenworthy’s evidence is that the planters along the elevations do not meet cl 6.12(4) as there are no trees proposed in the side setbacks, the on-podium planters are limited in depth that can only accommodate shrubs and that do not soften the scale of the development. Of the plantings proposed along a small area along the side setbacks, he says that these trees are hedge-like and difficult to access.

  2. Mr Kenworthy says that the lack of at grade play areas are not in accordance with the CCPG, 4.10 natural environment. The proposed trees and OSD result in an area that cannot be used for an at grade play space.

  3. Mr Kenworthy’s evidence is that the revised maintenance schedule does not provide any access to the western or rear boundary. Mr Kenworthy was sceptical about the ability to implement the maintenance schedule, which included a requirement for anchor points for rope access to maintain some of the landscaping but was obstructed by landscaping and acoustic/BCA barriers. He identified other areas of conflicting information in the landscaping plans and the maintenance schedule, including mulched areas in landscaping, inability to access the rear plantings, and an inability to access some planters for maintenance due to the separate 1.39m acoustic fence and 1.8m BCA barrier.

  4. Mr Ly for Kirovski says that there are limited deep soil opportunities along the side setback which do not allow for tree planting that would soften the building. He says that trees, shrubs and ground covers are proposed in the front and rear setbacks. Mr Ly’s evidence is that a vertical wall and the tall shrubs in planter boxes have been provided along the elevations to provide a green buffer between developments with deep planter boxes that achieve cl 6.12(4) of the GRLEP. Mr Ly says that tree plantings along the side setback may impact adjoining properties and limit the extent of the proposed basement and building.

  5. My Ly noted that there were no requirements for at-grade outdoor place areas.

  6. Mr Ly conceded in oral evidence that the location of the stormwater pipes in the OSD should be moved, that there was no gate to the provide access to the rear area, and that further information relating to maintenance of some of the planters that were separated by the 1.8m BCA barrier was required.

Submissions

  1. Kirovski submits that the four trees along the northern boundary will reach a height of 8-10m, reaching approximately the height of level 3. To address concerns about conflicts between the stormwater infrastructure and trees, an agreed condition of consent is proposed to relocate the pipes running through the OSD to along the basement wall.

  2. Council submits that access gates to the rear and west cannot simply be added by conditions of consent. The density of shrubs and differences in levels and wall heights mean that they cannot be accessed via a gate or if possible, would crush other landscaping. Council submits that there is no evidence on how to access and maintain many planter areas that are elevated, separated by 1.39m acoustic fencing, dense landscaping shrubs and then a 1.8m BCA barrier.

  3. A proposed condition of consent to combine the 1.39m acoustic fence and 1.8m BCA barrier seeks to overcome the maintenance issue and crushing of landscaping caused by potential gates (condition 26(f)).

Consideration and findings

  1. The concerns raised relate to sometimes differing landscaping controls in the GRLEP, GRDCP and CCPG. Clause 6.12 of the GRLEP is a precondition to the grant of consent. The landscaping issues relevant to this clause cannot be deferred to conditions of consent and must be satisfied prior to the grant of consent. I firstly accept that the cl 6.12(5)(f) is met, in that 10% of the site area is landscaped.

  2. I accept Mr Kenworth’s evidence that the lack of landscaping and lack of relatively scaled trees within the side setbacks is inadequate. Clause 6.12(4)(a) of the GRLEP requires that plantings be of a scale and density commensurate with the height and scale of buildings. I accept that the proposed planter box shrubs are not of an adequate scale that would soften the scale of the proposed four-five storey built form or enhance the streetscape. This is particularly important as the site currently adjoins low density development. I find that the retention and proposed trees in the front setback, street verge and rear setback are not enough to compensate for the lack of tree canopy or larger plantings along the side setbacks.

  3. I do not accept that trees or larger plantings cannot or should not be located in the side setbacks. The site is zoned R4 High Density Residential, which generally contemplates separation between most permissible buildings, that is often used for landscaping. Trees or plantings of a commensurate scale to a proposed development along boundaries between the types of development permitted within the zone is specifically sought by cl 6.12(4)(a) and separately supported by C17 of the CCPG and 3.3(1)(v),(vi), (xiii) and (2) of the Georges River Development Control Plan 2021 (GRDCP). Whilst the GRDCP allows a minimum side setback of 1.2m for the first two storeys, that is not an impediment to designing a building that allows sufficient areas for plantings along the side setback that are commensurate with the scale of the building (also being one of the preconditions to the grant of consent).

  4. Control 3.3(1)(xi) of the GRDCP requires consideration of the future maintenance requirements of landscaped areas. Outside of the proposed water irrigation system, the ability of the planter boxes to be maintained on the outside of the BCA and acoustic barriers is unknown. This was accepted by both experts. The use of anchors along a building is not novel, but the use of them on this building with various BCA and acoustic barriers has not been demonstrated. The proposed condition to combine the barriers/fences has not, in my view, overcome the issue.

  5. As submitted by Mr Staunton, the onus is on the Applicant to demonstrate that consent should be granted. I accept the evidence of Mr Kenworthy and concessions from Mr Ly and find that the amended DA is deficient of information to ensure that the proposed landscaping can be maintained. The ability to maintain the rear areas and some of the planter box landscaping on the outside of the acoustic barrier is unknown and I accept that the access concerns would likely mean some of the landscaping would not survive. The inadequate maintenance plan is contrary to 3.3(xi) of the GRDCP and would not achieve the objectives, as a likely consequence of an inability to maintain important parts of the landscaping would be the loss of it.

  6. For the reasons I have set out above, I am not satisfied that sub-cl 6.12(4)(a) of the GRLEP, Principle 5 and 3.4 Landscaping C17 of the CCPG and 3.3 Landscaping of the GRDCP have been met. As cl 6.12 of the GRLEP is a precondition to the grant of consent, there is no power to grant consent.

  7. Separately, for the same reasons given in these findings, I also accept that the inadequate landscaping would have contributed to an adverse finding that the development does not exhibit design excellence pursuant to cl 6.10(4) and having regard to subclause 6.10(5)(d)(xi). However, regard is to be had to each provision of the framework of cl 6.10. As there is no power to grant consent, there is little utility in conducting that consideration.

  8. I also note that the landscape architects and planners provided evidence about if the development incorporated a natural environment as required by Regulation 113 of the Education and Care Services National Regulations 2011. In my view, the design of the development was unclear on the extent of natural elements in the proposed play areas apart from sand pits. The natural environment regulation applies irrespective of their location on ground level (acknowledging ground level as an obvious and prime location for outdoor spaces) or balcony/terrace play areas. As the proposal was not for a simulated outdoor environment, the extent of any natural environment in the proposed play areas was unclear.

Parking and the stackers

  1. Council contends that the proposed car parking is deficient by 5 visitor car spaces with associated impacts on on-street parking and traffic and safety impacts and deficient 2 staff car spaces. Council also contends that the proposed car parking spaces for 8 of the 12 car spaces in the car stackers are unsafe and unworkable.

  2. The relevant planning controls from the GRDCP are set out below:

3.13 Parking Access and Transport

Objectives

a) Minimise traffic congestion and ensure adequate traffic safety and management.

b) Ensure an adequate environmental quality of parking areas (including both safety and amenity).

c) Provide adequate car parking for building users and visitors, depending on building use and proximity to public transport.

Controls

Parking Rates

1. The car parking rate for development types are outlined in Table 1 – Parking Requirements. In the event of a discrepancy between the parking rates specified in this Part of the DCP and any another, the specific requirements identified within the detailed controls for a locality/area shall prevail.

2. Development types not listed in Table 1 would be subject to a merit assessment based on the provisions set out in the Roads and Traffic Authority – Guide to Traffic Generating Developments. Council may require a detailed Traffic & Parking Study to be prepared for major development types or types of development not listed in the Guide.

3. It should be noted that the parking spaces required by this DCP are minimum numbers. Some uses, due to the nature of their operation, may warrant additional parking spaces and these may be required by Council.

4. Where a development is unable to provide the number of off street parking spaces required under Table 1, some of the required parking may be provided in the form of a contribution to public parking provision where required under an applicable Section 7.11 Plan.

5. In calculating the total number of car parking spaces required for a development type, the total should be rounded up to the nearest whole number (i.e. 0.5 or greater).

Other land uses: Centre-based Child Care Facility

• 1 space per 2 staff plus:

… - Centres with 40 to 69 Children – 1 space per 5 children

• Transport and Parking Assessment Study required

…

Basement Parking

15. Basement car parking is preferable in commercial and residential flat buildings.

16. Basement car parking is to be located within the building footprint.

17. All basement parking areas are to have security doors.

18. Include natural ventilation to basement and semi basement car parking.

19. Integrate ventilation design into the façade of the building, or parking structure, treating it with appropriate features such as louvres, well designed grilles, planting or other landscaping elements.

  1. The proposed car parking arrangement was further clarified during oral evidence of the engineers. Mr Steal, traffic engineer for Kirovski, gave evidence that the proposed parking arrangement involved two car stackers, each containing four car spaces, fencing around each stacker, and a ‘fancy fence’ (its name on the plans) security measure across the basement to ensure children were not able to access the stackers or fall in when in motion.

  2. It was explained in oral evidence that the 1m high, retractable, safety ‘fancy fence’ would be triggered when the stackers would be in motion. When the car stacker stops, the fence automatically lowers back down. The car drives out of the stacker system, and would need to be reactivated at some point past the fancy fence. The fancy fence would retract back into the ground when the stackers were not in use. Specific details about how drivers would get in and out of the stackers and how the stacker system would either integrate or interact with the fancy fence were generally unknown by both experts.

  3. Being four cars per stacker, Mr Steal described that each proposed stacker had two car spaces top and bottom. When the stacker is in action, the lift raises or lowers two car spaces at the same time. Meaning, the stacker cannot be operated if there is a car in both below and above spaces.

  4. Use of the stackers and fancy fence relied on an example roster contained in the PoM. The timetable considered staff and visitor arrival/departures and their indicative allocated parking space. The purpose of the timetable was to demonstrate that the stacker parking of 8 spaces can work in practice.

  5. Use of the stackers is proposed to be limited to before 7.30am, between 10am-2pm and after 7pm.

Evidence

  1. The experts agreed that the proposed staffing of 14 (10 full time educators, 2 relief staff, one cook and one supervisor) require 7 staff car spaces under the GRDCP. 6 staff car spaces are proposed. Mr Corbett says that one of the proposed car spaces is inadequate and therefore, only 5 staff spaces are proposed.

  2. The experts agreed that 11 visitor spaces are required by the GRDCP, with 6 proposed.

  3. Both experts agree in the Traffic JER that the previous Plan of Management with an example staff roster and parking arrangements was unworkable, as some of the staff working times did not align with being able to move their car from the allocated car stacker space.

  4. Mr Steal, traffic expert for Kirovski, undertook a first principles approach to demonstrate that the proposed car parking met the objectives of 3.13 of the GRDCP. Surveys of comparable child care centres were undertaken, including for nearby 10 Lawrence Street, Peakhurst that had a similar number of child care places. Mr Steal’s evidence is that the surveys of Lawrence Street showed a peak visitor demand of 5-6 spaces per hour (for 98th percentile and 98.3rd percentile cases). The proposed 6 visitor spaces for the proposed development of a similar size therefore meets the objective of the control as adequate car parking to meet demand will be provided. All visitor parking will therefore occur on site, not on the street.

  5. Mr Steal agrees with Mr Corbett’s approach to peak parking accumulation, also using the Lawrence Street child care centre, but comes to a different conclusion. Mr Steal says there is only a one minute period in the week where eight visitor vehicles sought to use the child care centre. Further, over the week of surveys, the accumulation of over 6 visitor vehicles lasted for four minutes. Mr Steal’s evidence is that using an accumulation approach, the 98th percentile accumulation modelling generated a demand of 4 visitor vehicles per hour in peak periods. Mr Steal says that it is unreasonable to provide for parking above the 98th percentile as this is a rare occurrence and generally resolved through a short wait in the car park by visitors.

  6. Mr Steal says that the Wattle Grove child care centre considered by Mr Corbett is not comparable. Wattle Grove is located in a low density zone and surrounded by low density development. This site is high density and accommodates a higher population, meaning that more users will walk to the proposed child care centre.

  7. Regarding on street parking, Mr Steal says that the transitory nature of visitor parking will mean that on street parking for residents will not be impacted. Staff parking on the street (those who are not allocated a car space in the development) will be directed to park near the reserve which contains a number of available car spaces.

  8. Mr Steal’s evidence relating to staff car space 6, is that the space will be allocated for a small car only. Given it is a staff car space, Mr Steal says that only the driver’s door will need to be used and the required 300mm clearance width to the wall does not inhabit its effective use as a car space as demonstrated by swept path analysis in the Traffic JER.

  9. Mr Steal’s evidence about the car stacker systems is that the system would take 1.5-2 minutes at the longest to complete the car park. Mr Steal’s understanding was that the design of the car park included consideration of the car stackers and their associated structures, but did not elaborate on what those were. It was agreed that general specifications through a brochure were included in the amended DA.

  10. Mr Steal’s evidence regarding two way passing of vehicles at the driveway, along the vehicle ramp and within the basement is that further swept path testing provided in the Traffic JER demonstrates safe passing movements and vehicles passing in the driveway. Mr Steal says that adequate sight distances are provided along Gover Street and there is no Australian Standard for simultaneous inbound/outbound passing at the driveway.

  11. Mr Steal mostly agrees with Mr Corbett’s evidence that the now relied on PoM example roster for use of the stackers partly did not work. Mr Steal’s evidence is that the roster is indicative only.

  12. Mr Steal’s evidence regarding the proposed waste collection is that a low clearance height vehicle has been selected, with a maximum height of 2.08m that can access the basement. Mr Steal says that other projects with a similar ramp grade have been granted development consent. The specification sheet indicates an example of the maximum transition gradients, not the absolute maximum gradient.

  13. Mr Corbett, traffic expert for Council, says that the proposed car parking is deficient for the proposed use. Mr Corbett says that the traffic surveys relied on by Mr Streel demonstrate a peak visitor parking demand of 8 car spaces for Lawrence Street. Mr Corbett’s evidence is that a comparison of the Lawrence Street data against the RMS Validation Trip Generation Surveys, Child Care Centres Analysis Report dated September 2015 (RMS Analysis Report) would support a peak visitor demand equating to 0.17 car spaces per child. This would equate to 8 visitor spaces at 10 Lawrence for 47 children.

  14. The proposed child care centre in the Traffic JER was for 52 children. Mr Corbett’s evidence is that using the same methodology as the RMS Analysis Report, this would result in an expected peak demand of 9 visitor spaces. Mr Corbett also considered the RMS Validation Trip Generation Surveys, Child Care Centres, Data Report dated August 2015 (RMS Data Report). Mr Corbett’s says that one of the assessed child care centres at Wattle Grove is comparable given its location in a residential area, in south-west Sydney and capacity for 45 children. The RMS Data Report found Wattle Grove generated a peak visitor parking demand for 10 car spaces, equating to a visitor parking rate of 0.22 spaces per child. The proposal, when assessed at the previous 52 children, would result in an expected demand of 11.4 visitor car spaces.

  15. With consideration of both methods, Mr Corbett’s evidence is that visitor car parking demand would be 10 car spaces. The proposed six visitor spaces is a 40% deficiency, in addition to the two staff spaces. The result of which could lead to:

  1. Multiple cars entering the basement seeking unavailable car parking and causing gridlock or reversing up the basement ramp to get out of the site with associated safety concerns.

  2. Parking on-street along Gover Street to drop-off/pick up children. Gover Street is constrained due to its narrow length, curved alignment and poor sight lines on a street which currently has high parking demand. Mr Corbett agreed in oral evidence that the parts of the day when the child care centre would be used provided more on-street parking than other times.

  1. Mr Corbett’s evidence is that proposed staff car space 6 cannot be used. Even when labelled as a small car space, the car space does not demonstrate the required 0.3m clearance under AS 2890.1 for the vehicle, side mirrors and opening of the car doors. Mr Corbett says that this space cannot be counted as a small car space, therefore the development is deficient by 2 staff spaces and 5 visitor spaces with associated impacts to on-street car parking.

  2. Mr Corbett’s evidence regarding the ability of vehicles to safely exit and pass on Gover Street is that the high demand for on-street parking, narrow street width (requiring cars to pull into car spaces to allow cars to pass) and lack of proposed off-street parking will create difficulties in cars passing, including at the entry of the proposed development. Mr Corbett agrees that there is no requirement for access driveway movements, however, has also provided swept paths in the Traffic JER demonstrating that the other swept paths not provided by Mr Steal show that left in, right out car movements cannot be achieved, potentially causing reversing on the ramp.

  3. Mr Corbett’s evidence on the queued vehicle and basement ramp passing, is that the ramp gradient for the queued vehicle is non-compliant by nearly double. If the incoming vehicle stopped approximately 300mm further on the ramp, the exiting vehicle could not pass, resulting in unsafe reversing up the ramp to allow the exiting vehicle to pass.

  4. Regarding the proposed car stacker system, Mr Corbett’s evidence is that insufficient information has been provided to demonstrate if the stackers can physically fit into the basement. His oral evidence is that the DA documentation did not show that two car stacker systems were proposed, and was only clarified in oral evidence by Mr Steal. Mr Corbett reiterated his concerns about the amended DA demonstrating how the basement can physically accommodate the stackers, associated structures and achieve a compliant parking space width.

  5. In both the Traffic JER and oral evidence about the previous and current version of the PoM, Mr Corbett detailed numerous occasions where the example roster did not work for entering or exiting staff. Examples included at 1pm, 1.10pm, 1.15pm, 1.25pm, 2pm, 2.10pm, 2.20pm, as the car stackers would be full or partially full, so that the stacker could not be operated. This was mostly caused by relief staff who were allocated car spaces on top of the two stackers.

  6. Mr Corbett’s evidence was that the Applicant had not shown how the two sets of car stackers could operate within the proposed hours and the required number of staff. He says that this results in an effective reduction of proposed car parking spaces.

  7. Mr Corbett’s concerns about the use and safety of the proposed stacker system and security fancy fence is best summarised from part of his oral evidence:

WITNESS CORBETT: No. I've never seen such a system proposed in terms of…I'm well aware of stackers and I have a lot of experience with stackers, some of which do incorporate their own sliding gate systems and the like.  But the proposal that's been put forward is effectively a stacker system and then a standalone fancy fence, I think it's called.  I've never heard of such a thing, so I can only assume that it's going to be a totally separate system that would stand separate to the stackers, and I have some concerns as to whether that could actually be integrated with the car stacker system (Trcpt 10/12/2024 pg 45).

  1. Mr Corbett accepted that if the car stacker system itself incorporated an integrated security, that this would address some of the safety concerns. He says that no details have been provided of this system.

  2. Mr Corbett’s evidence regarding the proposed waste vehicle is that the identified truck is comparable to a longer, small rigid vehicle (SRV). AS 2890.2 requires a clearance of 2.28m (clause 1.4.4) although accepts that 2.2m is sufficient. The proposed clearance at 2.08m is inadequate. Clause 3.3.3.2 of AS 2890.2 permits a maximum grade of 15.4% (which is exceeded) or clause 3.3.3.3 allows a vehicle performance assessment. Mr Corbett’s alternative performance assessment, based on a specification sheet for a similar truck (Annexure K Traffic JER), states that the maximum grade is 21.7%. The proposed grade exceeds the maximum, at 25%. Mr Corbett also undertook comparisons with other Council DCPs. Mr Corbett’s evidence is that the Applicant has confined their truck selection to one specific make and model, and that the clearance dimensions and ramps to facilitate an SRV should be provided to ensure satisfactory access and waste collection.

Consideration and Findings

  1. His Honour, Preston CJ stated in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2] that:

“…an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed.”

  1. Before considering if the proposed flexibility to the car parking rate has merit, it needs to be demonstrated that the number of proposed car parking spaces are able to be used.

  2. During the hearing the Applicant was granted leave to rely on an amended PoM which included a revised sample parking roster. I accept that the purpose of the parking roster is to demonstrate how the car stackers can operate with the needs of staff and visitors (being parents/care givers). Detailed by Mr Corbett’s oral evidence, I accept that the parking roster has not demonstrated that the car stackers can operate to service the needs of staff and cannot be relied on as car parking. Whilst the Applicant submits that the timetable is an example only, the onus is on the Applicant to demonstrate in the example that the proposed timetable works (see [68]). Kirovski has been unable to demonstrate that, despite being granted leave during the hearing to amend their PoM.

  3. I accept Mr Corbett’s evidence that the reliance on car stackers lacks sufficient detail, is potentially unsafe and is unworkable in this child care centre. I accept Mr Staunton’s submissions and find that there is very little detail provided about how the two car stackers, the fancy fence barrier and the safety laser (that if tripped, would also stop the moving stackers) would all operate together, beyond line indications on the architectural plans and generic specification brochures for the stackers. From the oral evidence, it was unclear how the laser aspect operated. Nothing in the amended DA documentation indicated how the laser or fancy fence would operate.

  4. As best as I could understand from the oral evidence and submissions, if the laser was triggered by a runaway child, this would cause the car stackers to stop moving. However, it would not stop the child from reaching the car stacker in whatever position it might happen to be in from lifting or lowering a car. Acknowledging that the fancy fence would be up and restrict some access, and that this possibility might be remote given the limited hours of its use and the indicative roster showing that three staff members will use the system at 7am, it is still an unacceptable potential safety consequence in a child centre. To the extent that the PoM states that the stackers are not be used when children are in the basement, this would be very difficult to enforce if parents/children were already in the basement or tried to enter the basement around 7am, and the total time for the staff to load their cars into the stacker takes 1.5-2 minutes to complete. Even a small likelihood of this occurring is unacceptable in a child care centre development.

  5. The need to rely on a detailed staff car parking timetable, car stackers, laser and a fancy fence are clear indicators that the site is unsuitable for the extent of development proposed.

  6. I accept Mr Corbett’s evidence that safe vehicle passing in the basement has not been demonstrated. The swept paths showing a non-compliant queuing area gradient and margin of error of approximately 300mm has not adequately demonstrated safe vehicle passing and I accept would likely lead to unsafe reversing up the basement ramp. I also accept Mr Corbett’s evidence about excluding the small car space and find that the non-compliant small car space is too small to be safely used. The Applicant’s narrowness of only using the driver’s side of designated small vehicle space overly constrains the useability of the car space and I find that it should not be included as a car space.

  7. Accordingly, I accept Mr Corbett’s evidence and Mr Staunton’s submissions, and find that the PoM, car stackers and basement design do not demonstrate that all proposed car parking spaces are useable and safe. I find that the deficient car parking does not adequately service the proposed use, would be unsafe, and would result in unreasonable on-street car parking impacts on a narrow street experiencing high parking demand. The proposal is contrary to 3.13, objectives (a), (b) and (c) and control (1) and (3) of the GRDCP.

  8. Lastly and separate from the above, in relation to providing adequate access for waste collection, I accept Mr Corbett’s evidence. The proposed waste access is designed for a specific manufacturer’s vehicle and not for commonly utilised waste collection trucks, of which some can be SRV as defined in AS 2890.2. The reliance on a narrow, specific type of waste truck is unreliable over the life of the development. I also accept Mr Corbett’s evidence that the specific requirements of the nominated waste vehicle are likely to be inconsistent with the proposed ramp grade and the nominated truck may not be able to use the ramp. The evidence in front of the Court indicates that the proposed ramp grade exceeds the maximum grade permitted for the track, as provided by Mr Corbett in the Traffic JER. I find that adequate ongoing waste collection has not been demonstrated by Kirovski.

  9. For completeness, had the proposed car parking spaces been workable, I would have accepted the first principles approach adopted by the experts as a way of meeting the objectives of control 3.13 of the GRDCP for visitor car parking. Mr Corbett’s approach based on the correlation between the RMS Analysis Report and RMS Data Report would have been preferred, with the 50 proposed child care places generating 10 car spaces (ultimately generally consistent with the GRDCP requirement). Given the availability of parking at the nearby reserve, I would have accepted Mr Steal’s evidence that the shortfall of 1-2 staff car parking spaces was acceptable.

Conclusion

  1. The design of a development begins with a consideration of the site, its opportunities, its constraints, and the needs of the type of development. The number of proposed child care places, use of car stackers and constraints of the site are incompatible.

  2. The proposed development has not provided adequate plantings along the side setbacks to screen the scale of the proposed development. The maintenance of parts of the landscaping behind various screening, even with anchors, has not been demonstrated to ensure that the proposed landscaping can be maintained. The lack of appropriate landscaping does not meet the preconditions of cl 6.12 landscaped areas of the GRLEP or the landscaping controls of the GRDCP.

  3. Council raised a number of other issues, some of which were persuasive, regarding design excellence, amenity, basement gross floor area and strict adherence to the PoM for the play areas. However, these do not need to be dealt with as I do not have power to grant consent.

  4. I conclude that the landscaping and parking issues warrant refusal of the amended DA.

Orders

  1. The Court orders that:

  1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application, as agreed or assessed.

  2. The appeal is dismissed.

  3. Development application DA-2023/0468 for demolition of the existing structures and construction of a centre based child care centre at 8 Gover Street, Peakhurst is determined by refusal of consent.

  4. The exhibits are returned except for A, B, and 1.

S Porter

Commissioner of the Court

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Decision last updated: 09 May 2025

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Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641