Mike and Shan Pty Ltd v City of Canada Bay Council

[2022] NSWLEC 1015

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mike & Shan Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1015

Hearing dates:

3-5 November 2021

Date of orders:

20 January 2022

Decision date:

20 January 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See directions at [201].

Catchwords:

DEVELOPMENT APPLICATION – Impact of proposed development on State heritage item – Bourketown Heritage Conservation Area – adaptive reuse of water reservoir – centre-based child care facility - child care planning guidelines -

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cll 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, Sch 5

Environmental Planning and Assessment Act 1979, ss 1.3, 4.16, 4.46, 8.7, 8.14, 8.15

Education and Care Services National Regulations, cll 108, 113, 114

Environmental Planning and Assessment Regulation 2000, cl 55

Heritage Act 1977, s 57

Land and Environment Court Act 1979, s 39

Protection of the Environment Operations Act 1997

Roads Act 1993

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cl 25

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Texts Cited:

Child Care Planning Guidelines, August 2017

City of Canada Bay Development Control Plan 2017

The Burra Charter: the Australia ICOMOS Charter for Places of Cultural Significance, 2013

Category:

Principal judgment

Parties:

Mike & Shan Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
T To (Applicant)
S Puckeridge (Solicitor) (Respondent)

Solicitors:
Dentons (Applicant)
Lindsay Taylor (Respondent)

File Number(s):

2020/306306

Publication restriction:

No

Judgment

1. COMMISSIONER: The Drummoyne Reservoir is a large elevated steel-plated water tank supported on a circular concrete colonnade, and tower structure that was constructed in 1913, and is now listed on the State Heritage Register.

2. The Reservoir was de-commissioned sometime in the 1960’s and is now proposed for adaptive reuse by Mike & Shan Pty Ltd, the Applicant in these proceedings. The Applicant seeks development consent for a centre-based childcare facility accommodating 159 children, requiring alterations and additions to the Reservoir and the construction of a new building to the east of the site over basement car parking.

3. To this end, the Applicant lodged Development Application No DA2020/0161 (the ‘DA’) with the City of Canada Bay Council (the Respondent) on 8 July 2020 that remains undetermined by the Respondent.

4. The Applicant brings this Class 1 appeal against the deemed refusal of the DA, since amended, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. On 7 September 2021, the Applicant, with the agreement of the Respondent, amended the DA, and filed documents in respect of the same with the Court (Exhibit B)

6. At the commencement of the hearing, the Applicant sought to further amend the development application (‘the amended DA’) by relying on the following drawings and other documents, contained in the bundle later marked Exhibit C:

• Architectural plans, prepared by Milton Architects, identified as Revision I (Tab 1)

• Structural concept plans, prepared by Brogue consulting engineers, (Tab 2)

• Area plans, prepared by Milton Architects (Tab 3)

• Revised Plan of Management, prepared by Early Education Solutions, dated 2 November 2021 (Tab 4)

7. The Respondent agreed to the amendment, in accordance with cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), subject to the Applicant paying the Respondent’s costs thrown away pursuant to s 8.15(3) of the EPA Act. Accordingly, I directed the Applicant to lodge the amended DA on the NSW Planning Portal.

8. As a result of the amended DA, the principally contested issues in this matter are distilled from the Amended Statement of Facts and Contentions (Exhibit 1) as follows:

1. The impact of the development on the heritage significance of the item, and the heritage conservation area.

2. Compliance with the relevant planning framework regulating centre-based child care facilities

3. Exceedance in height and floor space ratio (FSR) on the site.

9. Two written requests, prepared in accordance with cl 4.6 of the Canada Bay Local Environmental Plan 2013 (CBLEP), seek to justify the contravention of the height control (the height request) (Exhibit 6) and FSR control (the FSR request) (Exhibit B, Tab 13) (collectively, the ‘Requests’).

10. The parties agree that the environmental planning grounds advanced in the written requests, and the consistency said to be found with the objectives of the zone, and the relevant standards, are also matters addressed in the heritage evidence.

11. The Court was not assisted by detailed submissions on the Requests, or by oral evidence of the town planning experts, as the parties agree that if the Court resolves in favour of the Applicant in respect of the issue at [8(1)], it would also find the written request should be upheld.

12. I record here that I consider the reverse to be the case. That is, that as cl 4.6 of the CBLEP requires the Court to reach a state of satisfaction in respect of certain matters in order to enliven power to determine the matters in dispute, I intend to consider the Requests first.

13. In so doing, the evidence of the heritage experts assists me in respect of those matters required to be considered by cl 4.6 of the CBLEP, and in respect of the contention as stated at [8(1)] which is properly the subject of cl 5.10 of the CBLEP which I will consider before the evidence of the child care experts in respect of the contention at [8(2)].

The Site and its context

14. In describing the site, and more broadly in the decision that follows, I will refer to the elements of the proposal on the site, collectively ‘the Reservoir’, as follows:

• ‘The Water Tank’, comprising the rendered concrete colonnade, and steel-plated water tank over.

• ‘The Tower’, comprising the six-storey rendered concrete tower forming the lift shaft and existing stairs.

• ‘The Annex’, being the new brick building proposed to the north east of the site at the corner of South Street and Reservoir Lane in the location of what is identified as the existing ‘Store Building’.

15. The site is currently occupied by the Water Tank, the Tower, brick Store building and a combination of soft and hard landscaped area, enclosed within a perimeter fence that is part sandstone, part cyclone fence with top strands of barbed wire.

16. The site is rectangular in shape, and is bounded on all sides by the streets or lanes named as follows:

• To the south east is Rawson Avenue

• To the north east is South Street

• To the north west is Reservoir Lane, and

• To the south west is Polding Lane.

17. The site is legally described as Lots 13, 14, 15 and 16 in DP 455626 having a total site area of 1,180m².

18. The site is located within the R2 Low Density Residential zone according to the CBLEP, in which centre-based childcare facilities are permitted with consent, where consistent with the following objectives for development in the R2 zone:

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

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

19. The hearing commenced with an onsite view in which the Court, in the company of the legal representatives and certain experts, viewed the site from the streets and lanes bounding the site; including from Bourketown Square to the south west of the site along Rawson Avenue; and a local heritage item known as ‘Rhodesia’.

20. Views of the site were taken from those locations contained in relevant Conservation Management Plans (CMPs) in evidence, that are identified on the aerial plan marked Exhibit 11.

21. It is also commonly held that the Water Tank and Tower are visible from multiple locations in the local area, and beyond, due to the location of the site at a high point in the Drummoyne topography, and the particular height of the Water Tank and Tower elements.

22. The parties agree that these wide district views form part of the ‘setting’ of the Reservoir, while the ‘curtilage’ of the Reservoir is contained within the site.

23. Such a description is consistent with Part D2.1 of the Canada Bay Development Control Plan 2020 (CBDCP) which defines the setting in the following terms:

“Setting is the area around a heritage item that contributes to its heritage significance and may include the visual catchment of a heritage item. Topography, trees, gardens, fencing, and pavement can all contribute to the setting of a heritage item. Where a heritage item is a landmark, it is particularly important that new development does not obscure its visual presence in the streetscape and/or townscape.”

24. It is appropriate at this point to record that the heritage significance of the site is identified as follows in the Statement of Significance, annexed to Exhibit 4 and contained at Ex 2, folio 206:

“The Drummoyne Reservoir is one of a group of four water supply service reservoirs (Bellevue Hill (WS0010), Penshurst No 2 (WS0087) & Ashfield (WS0002)) built as part of the Sydney metropolitan water supply system. The group represents a series of important technological and historic developments, being the first elevated service reservoirs of over 0.5mL capacity built, the first reservoirs to combine steel tank walls with reinforced concrete floors and the first to be built using Monier concrete reinforcement systems. The deliberate ornamentation and stylisation in the individual designs of each reservoir demonstrates the intention of the Board to produce landmark structures which harmonised with their immediate environment.

Drummoyne was one of two reservoirs built with an attached tower and was the only reservoir in the group to feature a tower as a deliberate ornament. It is now the only reservoir with its tower surviving. The combined tower and reservoir is a fine, well-designed Federation Free Classical structure and a local landmark which complements the architectural character of the vicinity. The provisions of the tower is associated with Sir Thomas Henley, a prominent local identity and politician who was also a member of the Board of Water Supply and Sewerage and who had been instrumental in the provision of these Reservoir.”

Public submissions

25. A number of public submissions are contained in the Respondent’s bundle (Exhibit 2), from folios 614-667.

26. The subject of these submissions are summarised in Exhibit 1 to include traffic and parking; visual and acoustic privacy; landscaped area; heritage conservation; scale and intensity of use; stormwater disposal; child safety; operating hours; calculation of gross floor area; overshadowing of neighbouring dwellings; impacts of construction activity; contamination; location of air conditioning; mobile phone reception; and boundary fence detailing.

27. In addition to these submissions, three objectors provided oral submissions via Microsoft Teams at the commencement of the hearing.

28. Mr Davies has had a long association with the heritage of the site and of the Bourketown HCA which he regards as distinctive and largely untouched by contemporary development. The proposed development is hostile to the character of the area, in its urban form; materials, street address, walls and fences, including the perimeter acoustic screens.

29. Ms Norma Jackson Snow, and daughter, Ms Celeste Jackson-Snow have a view of the Water Tank and Tower from the rear of their property. Their primary concern is for the congestion and compromised pedestrian safety that results from increased traffic in the area that is already served by a number of child care facilities and services, including outside school hours care services offered by the nearby schools.

The allowable height and FSR is exceeded

30. The existing Water Tank and Tower elements exceed the maximum height of building control of 8.5m applicable to the site, pursuant to cl 4.3(2) of the CBLEP, and the allowable FSR of 0.5:1, pursuant to cl 4.4.

31. The development application is supported by two written requests, prepared by Mr Greg Boston. The Applicant’s height request, appended to the joint town planning expert report marked Exhibit 6, is dated 26 October 2021 and the FSR request is dated 27 August 2021, and is behind Tab 13, Exhibit B.

32. As both Requests are advanced on virtually identical grounds, I will consider the requests together.

33. The height request identifies the height of the existing Water Tank is 20.041m, and the topmost point of the existing Tower is 26.432m.

34. The height request identifies all works proposed above the 8.5m building height control in the Water Tank and Tower are either contained wholly within the existing building envelope, or involve the removal of existing fabric to create openings for light and ventilation or involve the replacement/ refurbishment/ restoration of existing building fabric.

35. The established height of the existing Water Tank and Tower structures are not proposed to be altered as a consequence of the works proposed.

36. The proposed Annex Building also exceeds the height control of 8.5m. The passenger lift overrun to the roof top outdoor play space has a maximum height above the existing ground level of 11.81m, exceeding the height standard by 3.31m. Additionally, a balustrade around the roof top outdoor play space exceeds the height standard by a maximum of 600mm.

37. The Requests consider compliance with the relevant development standards to be unreasonable and unnecessary because the objectives of those development standards are achieved notwithstanding non-compliance with the standard at cll 4.3 and 4.4 of the CBLEP.

38. The objectives of cl 4.3 in respect of building height are as follows:

(a)  to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively contribute to the streetscape and public spaces,

(b)  to protect the amenity of residential accommodation, neighbouring properties and public spaces in terms of—

(i)  visual and acoustic privacy, and

(ii)  solar access and view sharing,

(c)  to establish a transition in scale between medium and high density centres and adjoining lower density and open space zones to protect local amenity,

(d)  to ensure that buildings respond to the natural topography of the area.

39. The objectives of cl 4.4 in respect of FSR are:

(a)  to ensure that buildings are compatible with the bulk, scale, streetscape and desired future character of the locality,

(b)  to provide a suitable balance between landscaping and built form,

(c)  to minimise overshadowing of, and loss of privacy to, neighbouring properties,

(d)  to maximise solar access and amenity for public places,

(e)  to manage the visual impact of development when viewed from public places, including the Parramatta River.

40. At the outset it is relevant to record that the height request identifies strict compliance would require the partial demolition of the heritage item, and the FSR request identifies the removal of all floor space from the Water Tank would result in strict compliance, but with no resulting change in the bulk, scale or streetscape presentation of the proposal.

41. As such, the FSR request asserts that it is primarily the decision to adaptively reuse the Water Tank element that results in the exceedance of FSR on the site, by floor space that is arranged vertically within the existing form of the Water Tank.

42. The Requests state that as the objectives of the height and FSR controls seek development that is compatible with the height, bulk and scale of the desired future character of the locality, the objectives anticipate new contemporary buildings that retain the scale and overall character of the immediate area in relation to bulk, form and use of materials and where they positively contribute to the streetscape and public spaces and achieve a contextually responsive built form, or “fit”.

43. The Requests cite the overall character of the area, defined as the Bourketown Conservation Area in Part CA.2 of the CBDCP (Exhibit 2, folio 358), as follows:

“The Bourketown Conservation Area is of high value in reflecting the principal late Victorian and Federation period of development of the Drummoyne Area. The street layout survives from the original Bourketown subdivision, one of the earliest subdivisions of the area. The focal point of Bourketown is Bourke Square and it is in this vicinity that some of the finest individual buildings and groups of buildings are located, along with a small group of commercial buildings and the Drummoyne Public School.

Bourketown is important for its remaining Victorian housing, particularly in the vicinity of Bourke Square, which includes substantial houses on generous allotments as well as a scattering of worker’s homes. This development is surrounded by the Federation housing that dominates the streetscapes and, importantly, includes a range of housing from semi-detached speculative development closer to Victoria Road, through to smaller freestanding houses, to large houses of high individual value. These are representative of most styles of residential development from the Federation period and include housing for a variety of social classes.

The conservation area includes a number of important urban buildings including four churches, a public school, commercial buildings and a major water reservoir all relating to the early twentieth century development of the precinct and all of high value both individually and for understanding the development of the area.”

44. In respect of that character, the Requests assert:

• The future character relates principally to the retention of the strong overall heritage and urban character of the streets with a mix of one and two storey buildings.

• New buildings should retain the scale and overall character of the immediate area as it relates to bulk, form and use of materials.

• New buildings can be in a range of forms including good contemporary contextually responsive building design.

45. Furthermore, the proposed development is compatible with the height, bulk, scale and streetscape of the desired future character of the locality, being considered different to sameness, for the reasons that follow:

• The retention of the existing heritage listed reservoir and tank structures achieve the desired future character of the conservation area given these structures will continue to contribute to the strong overall heritage urban character of the conservation area and immediate streetscapes and public spaces notwithstanding their building height breaching elements.

• The elements exceeding height and FSR controls will not result in a building that is incompatible with the scale and overall character of the immediate area as it relates to their bulk, form and use of materials.

• The height, bulk and scale of the new Annex building element will be subservient to the height, bulk and scale of the reservoir and tank structures notwithstanding the elements that exceed the relevant controls.

• Likewise, the elements that exceed the controls will not result in a building displaying a height, bulk, scale, form or materiality which will be perceived as inappropriate or jarring when viewed in the context of the height, bulk, scale, form or materiality established in the locality and visible within the site’s visual catchment, including the 3 and 4 storey residential apartment buildings located in Rawson Avenue and Tranmere Street, St Marks Public School and Drummoyne Public School.

46. The proposed development will positively contribute to the streetscape and public spaces because of the bulk, form and materiality of the Annex building, and the conservation works to the heritage item on the site.

47. According to the Requests, the proposal achieves the visual privacy required by the relevant objectives through the use of perimeter balustrading and landscaping to the Annex roof top outdoor play space, and by virtue of the distance between the proposed openings to the Water Tank and surrounding properties. Expert acoustic advice is relied on as evidence that acoustic privacy is also achieved.

46. The solar access required by the relevant objective is achieved by the siting of the Annex building so that shadow cast by the non-compliant elements associated with it fall predominantly within the site or within the adjacent road reserve.

47. As the site is located within the R2 zone, and not within a medium or high density centre, Objective (c) of cl 4.3 is considered to be not relevant.

48. Likewise, as the topography of the site is flat, the only relevant factor in considering objective (d) of cl 4.3 is the proposed excavation that does not have a bearing on the proposed height, or its exceedance.

49. Objective (b) of cl 4.4 seeks a suitable balance between landscaping and built form on the site that is achieved by virtue of the exceedance being largely contained within the existing volume of the Water Tank and so avoids any impact on the balance between landscaping and built form.

50. Next, the Requests sets out three environmental planning grounds to justify the contravention of the relevant standards, summarised as follows:

1. Firstly, as stated at [40], strict compliance with the height and FSR control would require part demolition of the heritage item, and removal of floor space within the existing envelope of the Water Tank. Instead, the proposed adaptive reuse of the site will ensure conservation works are undertaken, and the height of the proposed built form, including that part comprising the exceedance, is distributed in a contextually appropriate and sympathetic manner on the site.

2. Secondly, there is a public benefit derived by the conservation works that facilitate the ongoing management and conservation of the item.

3. Thirdly, the proposed development is consistent with the objectives at s 1.3 (c), (f), (g) and (h) of the EPA Act.

53. Pursuant to cl 4.6(4)(a)(ii) of the CBLEP, the Requests assert consistency with the objectives of the R2 zone, set out at [18], on the grounds that centre-based child care facilities are permitted in the zone with consent, and are properly defined as a facility or service that meets the day to day needs of residents.

The requests are considered

54. The parties jointly submit that the Court’s consideration of the matters at cl 4.6 of the CBLEP, as set out in the Requests, is assisted by expert heritage evidence.

55. The Court was assisted in heritage matters by experts Ms Lisa Trueman, for the Respondent, and Mr Sean Johnson, for the Applicant who conferred in the preparation of the joint expert heritage report (Exhibit 4).

56. The site is located within the Bourketown Heritage Conservation Area (Bourketown HCA) according to Sch 5 of the CBLEP, and guidance on future character; setting, scale, siting, materials and colours, fencing and the like are set out at CA.2 of the CBDCP.

57. The experts agree that adaptive reuse of the site is important for the restoration and longevity of the heritage item, and the Water Tank and Tower must be retained.

58. The experts also agree that an existing face brick Store building on the north east of the site may be demolished.

59. The experts identify three areas of disagreement in respect of the compatibility of the proposal with the local area, and the impact of the proposal on the heritage significance of the item:

• The impact of vehicular access to the carpark basement.

• The cumulative impact of elements in the front setback of the Annex.

• The impact of the terraced play space and walls at the upper level of the Annex.

60. Ms Trueman considers the cumulative impact of the above detrimental to the heritage significance of the Reservoir, which I note here is a matter more directly relevant to cl 5.10 of the CBLEP, and the proposed new Annex Building is not compatible with the Bourketown HCA. In simple terms, it is not a good ‘fit’ for the area, despite this being a focus of the objectives of the controls the subject of the Requests.

61. In the course of their oral evidence the experts referred or were taken to three Conservation Management Plans (CMPs) prepared prior to the lodging of the DA:

• June 2005, prepared by Sydney Water, endorsed by the NSW Heritage Council (Exhibit D) (2005 CMP)

• May 2009, prepared by Clive Lucas, Stapleton & Partners for Sydney Water (Exhibit E) (2009 CMP)

• March 2018, prepared by Weir Philips and endorsed by the Heritage Council (Exhibit B, Tab 3) (2018 CMP)

62. The Statement of Heritage Impact prepared by Mr Johnson is at Exhibit A, Tab 9, and the addendum is contained in Exhibit B, Tab 4.

63. It is helpful to identify those views that the Respondent submits are affected by the proposal due to adverse bulk and scale considerations and affecting the streetscape contribution made by the proposal. Figure 49 of the 2018 CMP, transposed in Exhibit 11, identifies the following numbered locations:

• View 1: Corner of South Street and Reservoir Lane

• View 2: from South Street across the road from the existing Store Building

• View 3: Rawson Avenue, at the intersection with South Street

• View 4: from Bourketown Square, to the south west

• View 5: distant views from the wider district, including from across Iron Cove from Callan Park

The impact of vehicular access to the carpark basement.

64. The Applicant proposes to retain the existing kerb crossing on Rawson Avenue as the location for ramped access to basement car parking under the proposed Annex building.

65. The driveway itself is identified as having a ‘medium’ level of significance in the 2009 CMP and is identified as ‘neutral’ in the 2018 CMP. Removal of neutral fabric is permitted as is fabric identified as of medium significance if no damage to the heritage item results.

66. Ms Trueman does not consider the removal of the existing driveway itself to be problematic, but rather regards the extent of excavation for the ramped access, so close to the Water Tank, to pose potential structural risks to the heritage fabric, and because the cumulative effect of elements proposed in the vicinity of the ramped access obstructs a view of the circular colonnade that is of exceptional heritage significance.

67. The cumulative effect of the ramped driveway, fencing and gates, acoustic treatment, fire stairs and the like adversely impact on the setting of the Water Tank and Tower, and the appreciation of the item by obstructing views to it from locations identified in the various CMP’s as being of high or exceptional significance.

68. The effect separates, rather than unifies, the site and extends the scope of works beyond what is identified in Figure 7.2 of the 2009 CMP, re-produced below, as a ‘Contributory zone’ into the ‘Symmetry zone’.

Figure 1: Figure 7.2 taken from the 2009 CMP

69. Ms Trueman considers the view depicted at Drawing A1.04 (Exhibit C, Tab 1), re-produced below, to support her opinion that the proposed driveway interrupts an appreciation of the Reservoir, its setting and curtilage.

Figure 2: Computer generated images taken from Drawing A1.04 (Exhibit C, Tab 1),

70. These views are supported by comments provided by the Heritage Council to the effect that the excavation required for the driveway access to the basement puts at risk the structural integrity of the circular colonnade and such an encroachment is “not only poor heritage planning but a highly undesirable heritage outcome which disregards the most fundamental of heritage principles.” (Exhibit 2, folio 556c)

71. The Applicant relies on structural engineering drawings (Exhibit C, Tab 2), accompanied by a letter of certification prepared by Ashley Pollard of Brogue engineering dated 22 October 2021, that shows a piled retaining system utilising rock anchors and describes a construction methodology for the excavation associated with the ramped driveway access.

72. Alternative locations for access were investigated by Mr Ken Hollyoak on behalf of the Applicant. These are set out in the Review of Alternative Access Options prepared (Exhibit B, Tab 10), but were discounted either because, in the case of access from South Street, ramp access extended parking to directly under the Water Tank or, in the case of access from Reservoir Lane, the swept path required would alter the radius of the site at the north east corner.

73. The Applicant relies on perimeter fence details Drawing A10.01-10.03 (Ex C, Tab 1) tendered on the second day of the hearing to show a lower section of the driveway gate detailed to obstruct a sightline to the driveway ramp so that when the gate is in the closed position, a sightline is not gained to the basement beyond.

74. While Ms Trueman considers a traditional palisade fence in the style of that originally proposed for the site around 1913 to be more appropriate, Mr Johnson believes there to be no evidence such a palisade was ever erected on the site and when the varied fence types in the area are considered, particularly the height and style of the perimeter fence to the school opposite, the Applicant submits that the palisade fence proposed to the majority of the sites’ perimeter are compatible with the character of the area.

The cumulative impact of elements in the front setback of the proposed Annex building

75. The Annex building is proposed to the north east of the site, at the corner of South Street and Reservoir Lane, in the location of the existing brick Store building.

76. An area of Outdoor Play Space occupies the Rawson Avenue frontage of the Annex Building shown at RL 33.600. The area is over the basement car park and the parties agree the level is determined by the basement below.

77. According to Ms Trueman, the height of the Outdoor Play Space above street level, its fencing and other built structures contribute to a bulk, scale and streetscape presentation that limits the number of arches visible in the circular colonnade supporting the Water Tank, and the vertical extent of the columns in the colonnade. In particular, the base of the colonnade, that is currently visible from this location, will be obstructed.

78. Instead, the Annex Building is the dominant element in the view, that will distract and detract from views to the Reservoir.

79. Furthermore, as the heritage values apply to the whole of the site, the vacant portion of the site evident today is critical to understanding the setting, curtilage and views of the Water Tank.

80. The photomontage at Drawing A00.00 (Exhibit C, Tab 1) is re-produced below:

Figure 3 Photomontage taken from Drawing A00.00 (Exhibit C, Tab 1)

81. The Applicant relies on guidelines at p 80 of the 2009 CMP (Exhibit E) that advise “short-ranged views of the lower section of the tank stand and tower can be obscured. The original timber paling fence and boundary tree plantings shows there is a precedent to blend the ground view of the building with the neighbouring developments. A similar development or design in [sic] appropriate.”

82. The original paling fence referred to is shown in images dating from 1915, including at p 40 of the 2018 CMP. It is something Ms Trueman believes was temporary, but which Mr Johnson considers to have been in place until as late as 1943 when aerial photography suggests it had been removed.

83. The experts agree that the paling fence had the effect of obscuring somewhere between 30-50% of the full height of the colonnade when viewed from Rawson Avenue.

84. The obscuring effect of the Annex Building is, according to the Respondent, of greater than minimal impact, although Mr Johnson considers that most of the structure of the Water Tank and Tower remains visible from View 3.

85. That said, the Applicant accepts there is an obscuring effect from Views 1, 2 and 3, but not from View 4 in the vicinity of Bourketown Square, that is considered the most significant view and from where views should be unimpeded (2018 CMP, p127).

86. An acoustic fence is proposed to Polding Lane, described on Drawing A10.01 as an ‘acoustic arbour’, comprising structural steel posts, glazed panel cladding and tensioned cables to support climbing plants.

87. The Respondent submits that reflections on the glazed panels and the density of planting will disrupt the view from Bourketown Square, as could any obscuring of the glass that may be required for the purposes of child protection.

The impact of the terraced play space and walls at the upper level of the proposed Annex building

88. The Annex Building includes Outdoor Play Spaces on Level 1 and 2 fronting South Street. An additional Outdoor Play Space is located on the roof top of the Annex Building, that connects to the lower level via a stepped terrace, and a passenger lift.

89. According to Ms Trueman, the bulk, scale and streetscape presentation of the South Street frontage is inconsistent with the character of the Bourketown HCA. The design ignores the local context in its pursuit of functionalism alone.

90. In particular, the Outdoor Play Space at Level 1 is around 2m in height above the existing footpath in South Street, with layers of fencing and acoustic treatment that are uncharacteristic of the local area.

91. Furthermore, the area is effectively enclosed by full height brickwork walls, a balustrade, and slab to Level 2 over.

92. During the proceedings, the Applicant prepared Drawing A2.06 Rev J, showing a baby change space and toilet on Level 2 in place of the lift lobby previously shown, and a greater area of planter for trees to provide shade that will only exacerbate the obscuring of the Water Tank from View 2, according to the Respondent.

93. Mr Johnson considers the ‘monumental scale’ of the Reservoir structure to be so vast that it will remain dominant and visible when viewed in the context of the Annex Building that is subservient by virtue of its simple rectangular form; flat roof and balustrade set at the height of the cornice of the circular colonnade, and its sympathetic materials.

94. The design response adheres to the material and form of the existing Reservoir, and not to the surrounding residential character that Mr Johnson considers would be inappropriate. That said, features such as the flat roof echo the top of the Water Tank and garages in Polding Lane, and the balustrade to the rooftop Outdoor Play Space reflects the railing to the top of the Water Tank that has historically been trafficable around its edge.

95. Such features assist in unifying the site which Mr Johnson considers to be consistent with the Future Character identified in the Statement of Significance at Part CA.2 of the CBDCP that recognises large lot sizes as a feature of the Bourketown HCA in the following terms:

“Future Character

The future character for this large and mixed area is principally to retain the strong overall heritage urban character of the streets with their mix of one and two storey houses on lots of mixed size.

Existing building stock is predominantly Victorian and Edwardian with some Inter-war pockets of housing and these characters should be retained. Buildings built prior to the Second World War should not be demolished and new buildings should retain the scale and overall character of the immediate area as it relates to bulk, form and use of materials. Given the large lot sizes for much of the area, additions and new buildings can be in a range of forms including good contemporary design with the emphasis on ‘fit’ into the setting. Garages and carports should not be added in front of the building line.”

The clause 4.6 requests are upheld

96. A common thrust of the objectives at cll 4.3 and 4.4 of the CBLEP is to ensure buildings are compatible with the height, bulk and scale of the desired future character of the locality. In the case of objective (a) of the height control, buildings should also positively contribute to the streetscape and public spaces.

97. The existing built form of the Reservoir is clearly compatible with the desired future character of the Bourketown HCA. It is described in its Statement of Significance as “a local landmark which complements the architectural character of the vicinity”, and in the Statement of Significance for the Bourketown HCA as one of a number of important urban buildings “of high value both individually and for understanding the development of the area”.

98. The exceedance of the FSR control is not entirely explained by the additional floor space of the Annex Building. Instead, the exceedance is evident in the floor space in both the Annex Building and the Water Tank.

99. That said, I accept the argument in the FSR request that the removal of floor space from the Water Tank would have no effect on the height, bulk and scale of the existing built form on the site, given the existing height, bulk and scale of the Water Tank is to be retained.

100. Accordingly, I agree with the parties that the Court’s consideration of the Requests should focus on the degree of consistency with the objectives of the relevant controls and the zone evident in the Annex Building.

101. Guidance for new buildings contained in Part CA.2 of the CBDCP requires they “retain the scale and overall character of the immediate area as it relates to bulk, form and use of materials. Given the large lot sizes for much of the area, additions and new buildings can be in a range of forms including good contemporary design with the emphasis on ‘fit’ into the setting.”

102. The Reservoir site is a large lot located directly opposite the large lot occupied by the Drummoyne Public School. Both sites are identified, along with other buildings, as being ‘important urban buildings’. On the basis of the onsite view, it may be said the two sites together form a distinctly ‘urban core’ that is so often the role performed by public buildings with identified heritage value, particularly when co-located.

103. While not located within the Bourketown HCA, a face brick residential flat building stands opposite the site, at the corner of South Street and Rawson Avenue, beyond which to its north, colorbond fencing and zero-setback garages extend continuously to the property at the intersection of South Street and Polding Street. Likewise, garages and first floor additions front Polding Lane to the west.

104. This is the scale and overall character of the immediate area to which the bulk, form and materials of new buildings should relate, according to Part CA.2 of the CBDCP.

105. It is in this context that I prefer and accept Mr Johnson’s view that the height, bulk and scale of the Annex Building is compatible with the area. In particular, I accept Mr Johnson’s evidence that:

1. The Annex building is located on the site at a point that is furthest from Rawson Avenue to minimise the visual impact of new built form on the site from this primary address.

2. So located, the height, bulk and scale of the Annex Building effectively serves to mediate what Mr Johnson describes as “a unique and massive industrial building” (Exhibit 4, par 3.2) of “monumental scale” with the surrounding residential context.

3. Consistent with the large lot sizes in the area, it is appropriate for the new building to take its cues from built form on the site, and not from surrounding development that is predominantly residential. To do so would associate the Annex Building with domestic scale residential development on smaller lots in the surrounding area, in contradiction to the character of this particular site.

4. The flat roof of the Annex Building contributes to its subservience to the scale of the Water Tank form, and its perimeter balustrade echoes the railing at the top of the Water Tank.

106. The exceedance of the height in the Annex Building is caused by the lift overrun which is set back from the South Street frontage. Furthermore, the roof top Outdoor Play Space is within the height control, and is also set back from South Street so that a presentation of one storey fronts South Street, albeit inclusive of additional height over the car park below, and the parapet balustrade to the Outdoor Play Space to Level 2.

107. The resulting height, bulk and scale of the Annex Building is compatible with that of its surrounds, including the 3 storey residential flat building opposite the site on South Street which is not included in the Bourketown HCA, but is in the immediate visual catchment and against which the compatibility of height, bulk and scale will gauged by passers by.

106. Additionally, on the basis of the trellis structure to South Street and plantings proposed to the perimeter of the rooftop Outdoor Play Space, and the stepped form of the Annex Building height, I accept the street presentation of the Annex Building will positively contribute to the existing streetscape in South Street that is today dominated by garages and unmodulated fencing.

107. As the location and function of the existing driveway is retained, I do not consider the vehicular access to the carpark basement to be incompatible with the height, bulk, scale or streetscape of the locality. The kerb crossing, driveway and proposed excavation are not of themselves incompatible with the area when the scale of the large lot and “monumental scale” of the existing built form is taken into account.

108. Ms Trueman’s evidence, summarised at [66], is that the proposed development fails to positively contribute to the streetscape and public spaces because of the vehicular access to the carpark basement, the cumulative impacts of elements in the front setback, and at the upper level of the Annex Building.

109. The excavation required by the driveway is said by Ms Trueman to pose structural risks and, because of the balustrade, acoustic fencing and other structures, obscures the view to the circular colonnade. Likewise, the elements in the front setback and at the upper level of the Annex building also obscure views to the Water Tank and Tower.

110. I accept the construction methodology and structural solution of Brogue consulting engineers at [71], and related structural assessments prepared by the same author in respect of the steel bracing to the Water Tank dated 26 March 2021 (Exhibit B, Tab 11), and of the existing steel plate walling to the Water Tank (Exhibit B, Tab 12), which answers the concerns of Ms Trueman and the Heritage Council in respect of structural integrity.

111. I also accept Mr Johnson’s view that the unique, monumental scale of the Water Tank and Tower is not compromised by what I consider to be minor obscuring of the heritage item within the zone in which some obscuring is considered acceptable by the 2009 CMP.

112. The architectural drawings (Dwg A 10.02, Exhibit C) depict balustrades that are a form of steel palisade fence commonly considered an acceptable contemporary solution in historic settings, and acoustic fencing that is predominantly transparent glass (Dwg A4.04, Exhibit C), including that to Polding Lane.

113. Some of these elements coincide with the driveway which is shown encroaching into the ‘Symmetry zone’ illustrated by Figure 7.2 of the 2009 CMP at [68] and which, by virtue of its retention, continues to encroach in to the same.

114. I accept the analysis undertaken in the Review of Alternative Access Options by Mr Hollyoak that demonstrates, in effect, that vehicular access in alternative locations would have a greater impact on the heritage setting and would not positively contribute to the streetscape and public spaces.

115. It must also be considered preferable in terms of heritage conservation, for the adaptive reuse of a large lot such as this to conceal parked cars in a basement to which access must be provided, in preference to a surface carpark.

116. The ramped access to the proposed basement carpark, as a consequence of the excavation, results in a visual separation between the Water Tank and Annex building of around 6.5m (Exhibit 12) when viewed from Rawson Avenue, which provides a buffer of sorts, depicted at [69], between the existing and new built forms, reflective of Figure 7.2 of the 2009 CMP.

117. Finally, there is no doubt that the proposed Annex Building will obscure some views to the Water Tank and Tower, identified at [63] as Views 1, 2 and 3. Views 1 and 2 are likely to be lost by any built form, including a fully compliant building envelope, that is added in this north east location of the site. The impact of the proposal on View 3 is partial and, in my view, acceptable.

118. I accept Mr Johnson’s evidence that the Annex Building is setback as far as possible, and that the circular colonnade remains sufficiently visible to understand its form and relationship to the Water Tank and Tower of which it is a part.

119. I am also sympathetic to the Applicant’s submission that some obscuring of the Water Tank and Tower is inevitable in adapting the site to a future use that will, in turn, ensure the retention, repair and maintenance of the heritage fabric on the site.

120. I conclude firstly that the loss of view to the heritage fabric from Views 1 and 2 is an unavoidable consequence of reasonable development on the site and the minor obscuring of the circular colonnade from View 3 is within an acceptable range, given the overall form and scale of the heritage item will remain capable of appreciation from the intersection of Rawson Avenue and South Street from where the 2018 CMP advises views to the Reservoir should remain unimpeded. Secondly, the proposal is largely consistent with Figure 7.2 of the 2009 CMP, which I consider to be a reasonable diagrammatic framework designed to balance the heritage values of the site, with the potential for new built form within the Bourketown HCA.

121. For the above reasons, on balance, I find the proposal positively contributes to the streetscape and public spaces, being an objective of the height control, and so I am satisfied that compliance with the height and FSR control is unreasonable or unnecessary in the circumstances of this case as the objectives of the controls are achieved notwithstanding the non-compliance.

122. I am also satisfied that the environmental planning grounds advanced in the Requests are sufficient to justify the contravention of the controls within the meaning of cl 4.6(3)(b) of the CBLEP. In particular, I accept proposed works to the Water Tank and Tower above the 8.5m height control are associated with adaptive reuse and conservation works to the item, detailed at 1:5 scale in the architectural drawings, and which are wholly contained within the existing volume and envelope. To this end, I also note a Schedule of conservation works is marked Exhibit F.

123. I also accept there is no additional height proposed to the Water Tank or Tower, and the exceedance of the FSR, to the extent it is apportioned to the floor space in the Water Tank, results in no discernible built form beyond the existing height, bulk and scale.

124. Relatedly, I also accept that the height exceedance to the Annex Building is largely, if not entirely, concealed from view in South Street by the stepped form of the Annex Building from this setback and has no adverse impact on the surrounding streetscape or the public domain in terms of visual privacy or overshadowing.

125. Finally, for the reasons summarised at [53], the proposed development, as a centre-based childcare facility answers the description of a land use providing for the day to day needs of residents and, for the reasons set out at [40]-[51], is also consistent with the objectives of the height and FSR controls.

126. Clause 4.6 (4)(a)(ii) requires the Court to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the relevant controls and the objectives of the zone. For the reasons set out above, I am so satisfied.

127. Having considered those matters at cl 4.6(5) of the CBLEP, I also find there be no grounds on which the power of the Court should not be exercised by reason of s 39(6) of the Land and Environment Court Act 1979. While the exceedances are in respect of a heritage item of state significance, the requisite opinions of satisfaction are informed by the evidence of heritage experts and there is a public interest in the retention, repair and maintenance of such an item.

128. The Reservoir is listed as an item of state heritage significance in Sch 5 of the CBLEP, and so the proposed development is identified as Integrated Development under s 4.46 of the EPA Act, and the provisions of s 57 of the Heritage Act 1977, and cl 5.10 of the CBLEP apply.

129. The Heritage Council of NSW has refused to provide its consent to the proposed development for reasons set out in its initial assessment (folio 570-592), and at the commencement of the hearing, based on assessment of the amended architectural plans at [6] (Exhibit 2, folio 556a and 556b).

130. The Respondent contends the proposed development will have a detrimental impact on the heritage item, and on the Bourketown HCA in which it is a landmark. Considering such an effect on the item and the area should lead the Court to a conclusion, in accordance with cl 5.10 the CBLEP, that the appeal should be dismissed.

131. The Heritage Council believes the proposal disregards the most fundamental of heritage principles and the Respondent submits that the proposed development is not consistent with good heritage practice set out in The Burra Charter: the Australia ICOMOS Charter for Places of Cultural Significance, 2013 (‘Burra Charter’).

132. The Burra Charter sets out principles, processes and practices for conservation and management of places of cultural significance.

133. Article 8 of the Burra Charter advises, in essence, that new construction, demolition, and the like, should not adversely affect the setting of a heritage item.

134. Article 21 of the Burra Charter deals with the appropriate adaptation of heritage fabric, advising that adaptation should have only minimal impact on the cultural significance of the place, and only after alternatives have been considered.

135. Article 22.2 of the Burra Charter guides proponents of new work to, or in the vicinity of, heritage places in the following terms:

“New work should be readily identifiable as such, but must respect and have minimal impact on the cultural significance of the place.”

138. In my view, the proposal appropriately considers the setting of the Water Tank and Tower that will be unchanged when viewed at the scale of the district, but which will benefit from retention, repair and maintenance. Relatedly, the proposal substantially limits new built form to the zone identified by the 2009 CMP as appropriate for development and so the curtilage of the Water Tank and Tower are also, in my view, appropriately considered in the proposal.

139. The extent of adaptation proposed is also, in my view, reasonable and considered. Given the unique form and scale of the Water Tank and Tower, a genuine challenge is presented to the adaptation of these forms to provide for contemporary standards such as universal access and circulation, emergency escape, access to daylight and the like.

140. The proposal has, in my view, approached adaptation with respect and sensitivity. Adaptation of the external steel plate cladding to the Water Tank is, in essence, a replacement of solid steel plate, with perforated steel plate that is likely to be largely imperceptible from street level. Daylighting is provided through large scale voids in the floorplate of Level 4 and 5, and at roof level which avoids the need for further adaptation of the Water Tank exterior. On this basis, I find the alternatives sought by Article 21 to have been considered.

141. The enclosure of the circular colonnade and utilisation of the height and volume of the space respects the existing network of steel bracing while proposing minimal impact on the existing colonnade, consistent with Article 22.

142. Ms Trueman prefers any new built form to be simple and neutral when viewed from Rawson Avenue so as not to compete for attention with the Reservoir. For the reasons set out above, I accept the design of the Annex Building is simple and neutral.

143. As I understand Mr Johnsons’ evidence, the form of the Annex Building draws, appropriately in my view, on the language of public or ‘institutional’ buildings in its form, and not from the language of residential buildings which include elements such as eaves, pitched roof, porches, timber detailing and other elements common in domestic architecture.

144. Accordingly, and for the reasons set out at [96]-[143], I am satisfied that the Requests to contravene the height and FSR controls at cll 4.3 and 4.4 of the CBLEP deserve to be upheld.

Childcare evidence

145. The Court was assisted by Childcare experts, Ms Wendy Shepherd for the Respondent, and Ms Lynda Campbell for the Applicant who conferred in the preparation of the joint expert report marked Exhibit 5.

146. The oral evidence of the experts dealt with two broad topics:

• The quantum of outdoor play space

• The amenity of outdoor play space

Quantum of outdoor play space

147. Clause 25(2)(b)(i) of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP) sets out non-discretionary development standards, reflected in Child Care Planning Guidelines (Exhibit 2, folios 220-271) (Child Care Guidelines), including an area of 7m² of unencumbered outdoor space per child required to be provided in order to comply with reg 108 of the Education and Care Services National Regulations (Education Regulations).

148. A Plan of Management (PoM) was initially appended to the joint expert report and later amended by that contained behind Tab 4, Exhibit C, dated 2 November 2021.

149. The PoM confirms a maximum capacity for 159 children. 46 children, aged between 0-3 years old are allocated to the Annex Building. 113 children aged between 3-5 years old are allocated to the Water Tank.

150. A table in Section 5.3 of the PoM sets out the times of day and duration in which certain age groups will have access to the three outdoor play areas proposed on the site, that include:

• Outdoor Play Area 1, being the ground level play area surrounding the Water Tank and Tower

• Outdoor Play Area 4, being the Roof of the Annex building

• Outdoor Play Area 8, being the Roof Garden on the Water Tank

151. The Table at Section 5.3 also confirms children aged 0-3 access Outdoor Play Area 1 between 12-1pm when children aged 3-5 are more likely to be eating lunch or resting, according to Ms Campbell. In this way, age groups are ‘rotated’ between indoor and outdoor spaces.

152. The parties agree that notwithstanding the withholding of concurrence by the Department of Education (Exhibit 2, folio 558), the numerical requirement for unencumbered outdoor play space per child is achieved when calculated as a total across the site.

Amenity of outdoor play space

153. The Respondent submits that the amenity of the outdoor play space is compromised by its lack of natural elements, required by reg 113 of the Education Regulations, and a lack of shade, required by reg 114.

154. The chapeau to reg 113 relevantly provides:

“The approved provider of a centre-based service must ensure that the outdoor spaces allow children to explore and experience the natural environment.”

155. The chapeau to reg 114 relevantly provide that:

“The approved provider of a centre-based service must ensure that outdoor spaces include adequate shaded areas to protect children from overexposure to ultraviolet radiation from the sun.”

Lack of natural elements

156. The Water Tank includes areas on Level 3, 4 and 5 that Ms Campbell considers to be unencumbered outdoor space, by virtue of the degree to which the area is open to the elements, through openings screened by perforated metal panel, and via the voids that connects Level 3 to sun and weather above.

157. However, these spaces are constrained by their limited height and minimal access to sky, wind and weather, that are essential characteristics for unencumbered outdoor space, according to Ms Shepherd. Covered, constrained spaces such as those on Level 3-5 are more properly considered to be ‘simulated outdoor space’.

158. In support of this view, Ms Shepherd identifies materials such as synthetic grass, and elements on the ground floor that are common to passive play, and not the energetic, risk-taking experiences associated with outdoor play areas.

159. In any event, these spaces are defined as simulated outdoor space by the Applicant in the Areas Plans (Exhibit C, Tab 3), and so are not relied upon as Outdoor Play Space.

160. The Annex Building relies upon outdoor play space in what is termed ‘verandah’ space fronting South Street. As the space at Level 1 is roofed by the slab at Level 2, has a timber floor, and is partly enclosed by brickwork, the Respondent submits that it fails to deliver space that is consistent with reg 113.

161. A note contained in the email dated 10 August 2020 (Ex 2, folio 556) is of assistance:

“PLEASE NOTE: Covered outdoor spaces (such as a verandah) may be included as natural outdoor play area if they are open on at least one third of its perimeter, have a clear height of 2.1 metres and have a wall height of less than 1.4 metres where a wall with an opening forms the perimeter (i.e. outdoor areas surrounding the Annex playrooms may be classed as natural outdoor).”

162. The verandah space is enclosed by a palisade fence depicted on Drawing A10.02, that is 1390mm high, and lined with transparent glass to perform as an acoustic barrier but through which a view and daylight passes.

163. To achieve the natural environment desired by reg 113, the experts agree elements such as tree stumps, bark, leaves, rocks and water may be introduced as temporary or moveable elements.

164. A table of such elements or features considered by the experts to be appropriate and required in lieu of such detail evident on the architectural plans is set out at pp 5-6 of the joint expert report.

165. On the basis of the above, I find the verandah may be included as Outdoor play space and I accept the agreement of the childcare experts as to the ease with which the area may be used, or added to with natural elements and a condition to this effect is agreed by the parties which I deal with at [193].

Protection from ultraviolet radiation

166. The experts agree they are unable to determine whether the proposal complies with reg 114 of the Education Regulations, that requires adequate shaded areas to protect children from over exposure to ultraviolet radiation from the sun.

167. Ms Campbell identifies large planters on the uppermost level of the Reservoir will support large trees, providing shade. Furthermore, it is common practice for educators to monitor UV levels and the PoM does not propose use of the rooftop play areas in the middle of the day when UV levels may be expected to peak.

168. I note here that the addition of trees to Outdoor Play Space 8, on the roof top of the Water Tank, is considered by the heritage experts to be inappropriate if visible above the perimeter of the Water Tank.

169. Notwithstanding the hesitancy of the experts on the matter, I accept the shadow diagrams, the program for play at [150]-[151], and the location and exposure of outdoor play areas will result in the correct balance of sunlight and shade to play areas sought by Section 4.11 of the Child Care Guidelines.

Conclusion

170. After considering all of the evidence before me, I have determined that the written requests prepared by the Applicant to vary the development standards at cll 4.3 and 4.4 of the CBLEP should be upheld.

171. While the Heritage Council has not provided its consent, the Court is not constrained by the refusal of the Heritage Council to provide General Terms of Approval (GTAs), and the Court is not without proposed conditions prepared by the Heritage Council which are marked Exhibit 13.

172. I have considered the grounds on which the Heritage Council has elected not to provide GTA’s and, for the reasons set out in this decision, I find the effect of the proposed development on the heritage item, and the Bourketown HCA acceptable pursuant to cl 5.10 of the CBLEP.

173. The Water Tank and Tower, by virtue of its dominating scale and the open space that remains around it, will remain the prominent feature and focus of the site, visible from virtually all points around the site’s perimeter and beyond.

174. I conclude it is appropriate for the Court to exercise its power in accordance with s 8.14(4) of the EPA Act to grant consent, subject to conditions of consent in accordance with s 4.16(1) of the EPA Act, and subject to those jurisdictional preconditions about which I am satisfied for the reasons that follow.

170. The site is identified on the Acid Sulfate Soils Map at cl 6.1(2) of the CBLEP as Class 5 acid sulfate soils but is located further than 500m from Class 2 soils and, given the change in topography, I am satisfied will not impact the water table.

171. As the proposal includes excavation of the basement carpark the provisions of cl 6.2 of the CBLEP in respect of earthworks apply. On the basis of the Feasibility report dated 18 March 2020 (Exhibit A, Tab 18), the Concept Drainage Assessment dated 28 February 2020 (Exhibit A, Tab 12), and the Stormwater Plans (Exhibit A, Tab 6), all prepared by Inertia engineering, and the Structural engineering detailed design prepared by Brogue consulting engineers (Exhibit C, Tab 2), I conclude the proposed development will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

172. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) requires a consent authority to consider whether the land is contaminated and requires remediation. A Remediation Action Plan (RAP) was prepared by WSP Parson Brinckerhoff for the former owner of the site, Sydney Water, dated 19 September 2016 (Exhibit B, Tab 7), that was subject to review by DRC Environmental who prepared an Environmental Review and Advice Note on behalf of the Applicant dated 24 February 2021 (Exhibit A, Tab 16) (RAP Review).

173. The RAP Review recommends the following changes be made to the RAP:

1. Firstly, direct contact criteria for TRH should be altered to less than detection limits to avoid exposure of this contaminant to future users of the site;

2. Secondly, remediation strategy Option 2, set out on p 32, is preferred; and

3. Thirdly, the RAP should mandate the removal of all hazardous materials present in structures that are intended to remain at the site.

179. The RAP has not been amended to reflect the recommendations set out in the RAP Review. Nor do the conditions of consent dated 12 November 2021 appear to provide for the recommendations to be incorporated in the works.

180. The conditions of consent provide for the preparation of a Site Validation Report (Condition 64), a Site Audit Statement obtained from a NSW EPA Accredited Site Auditor (Condition 65), and supervision by an environmental consultant of the remediation works in accordance with the approved Remedial Action Plan (Condition 66).

181. I consider the recommendations contained in the RAP Review to be appropriate and, if adopted, I am satisfied the site be made suitable for the purpose for which the development is proposed to be carried out in accordance with cl 7 of SEPP 55, subject to conditions of consent. For this reason, I intend to make directions that the RAP, and the conditions of consent, be amended to provide for the recommendations to be incorporated into the terms of the consent.

182. Those conditions of consent are substantially, but not wholly, agreed between the parties, I will now deal with those conditions the subject of dispute.

Conditions are disputed

183. At the close of proceedings, the Court directed that the parties confer and provide agreed conditions of consent or, in the alternative, conditions of consent with those conditions not agreed appropriately identified.

184. On 12 November 2021, the Court was provided with conditions of consent marked ‘Collated Conditions of consent – Applicant & Respondent position – 12 November 2021’ with changes tracked by both parties.

185. Condition 1A (c), as proposed by the Applicant, provides for the amending of the materials schedule prior to the issue of the Construction Certificate in respect of new metal panels to exterior of tank, newly inserted doors to new openings to tower and tank, floor finishes to tower and tank levels, and the materials, finishes and colours of the proposed new Building, including the driveway and courtyards/outdoor areas.

186. The Respondent’s position is that the Court should see this detail prior to granting development consent, in order to understand the impacts to the heritage item.

187. Drawings A8.01, A8.02 and A8.03, listed in Condition 1 as documents on which the consent is granted, provide details at 1:5, 1:25 and 1:50 scale of proposed works to the Water Tank and Tower, including drawn and written specifications for the removal of existing steel plate panels in both the ‘recessed’ and ‘proud’ course of the Water Tank, the ‘making good’ of damaged rivets, and the proposed fixings, pressure seals and the like.

188. Drawing A9.01, also listed in Condition 1, provides a materials schedule montage with the location and nature of materials proposed.

189. On the basis of the above, I accept the Applicant’s proposed addition of Condition 1A (c) requiring any further amendment to be provided prior to the issue of a Construction Certificate.

190. I also note the terms of Condition 2 which is, in summary, that an architect with heritage specialisation be engaged, provide input throughout the works, and provide written confirmation that all work has been carried out in accordance with the conditions of this consent.

191. Proposed conditions of consent provided by the Heritage Council dated 4 November 2021, are complementary as they are in similar, but not identical terms as the requirement for the heritage input sought by the Heritage Council does not rise to the level of qualification of an architect as proposed by the Respondent, but a heritage consultant.

192. Condition 42 is in respect of rock anchors the subject of the construction methodology and structural solution prepared by Brogue consulting engineers, which I accept at [112]. As I accept the solution proposed by Brogue, I also accept the Applicant has addressed the matters the subject of the condition it now seeks to have deleted, but for the Approval required under the Roads Act 1993 identified by the Respondent for the installation of temporary rock or soil anchors. The Applicant’s preferred form of Condition 42 is adopted.

193. Condition 80 reflects agreement of the child care experts in respect of those matters at [164] which are adopted as proposed by the Applicant but for the reference made to a change in the form of balustrade which I deal with at [162].

194. Condition 102 as proposed by the Respondent requires that activities on site to comply with the Protection of the Environment Operations Act 1997 in respect of air, noise and water pollution which are considered reasonable and commonplace, and so are adopted.

195. The parties dispute the method to be adopted to determine the background noise level to be used as a baseline for noise from outdoor play, that is the subject of Condition 105.

196. The Respondent seeks, in summary, that the noise level emitted from “the use” must not exceed 5dB above the background (L90) noise level as a result of outdoor play, and proposes that the background noise level be measured in the absence of noise emitted from the use of the outdoor play area in accordance with Australian Standard AS1055.

197. The Applicant submits that that the wording of the condition as proposed by Respondent cannot achieve its intended objective as it is not physically possible to exclude all noises other than the outdoor play area noise. By way of example, if mechanical plant noise was excluded, the noise from the outdoor play area could be higher than if noise from mechanical plant was included.

198. As I understand the brief written submissions made by the parties on the terms of the condition, the dispute appears centred on the understanding of the term ‘use’. I am assisted by the Respondent identifying that, for enforcement purposes, the noise source cannot be taken in the absence of other noise sources from the use of the proposed centre, such as the sites use of mechanical plant and equipment, as the intent of the condition is directed to controlling noise from outdoor play.

199. On this basis, I accept the Respondent’s preferred wording of the condition which I understand permits the measurement of background noise to include mechanical plant and other reasonable noise generated by the ‘use’ of the development the subject of the development application, but with the exception of use of the outdoor play area by children (my emphasis), to which the condition is directed.

Directions

200. The Court notes that the Respondent as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. DA2020/0161 (Amended DA).

201. The Court directs that, within 21 days of these orders:

1. The Applicant is to lodge the Amended DA on the NSW Planning Portal and provide evidence to the Court of the same.

2. The Applicant is to amend the Remediation Action Plan to incorporate the recommendations summarised at [178].

3. The parties are to file a final set of conditions of consent incorporating the findings of the judgment at [183]-[199].

…………………..

T Horton

Commissioner of the Court

**********

Decision last updated: 20 January 2022