Tahany Pty Ltd v Woollahra Municipal Council - [2019] NSWLEC 1008

Land and Environment Court

New South Wales

Medium Neutral Citation: Tahany Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1008
Hearing dates: 24-26 September 2018
Date of orders: 15 January 2019
Decision date: 15 January 2019
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1)   Leave is granted to the applicant to amend development application DA 03/2017 for a child care centre at 98 Manning Road, Double Bay, in accordance with the amended plans and documents referred to in condition A2 of Annexure A.
(2) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
(3)   The appeal is upheld.
(4)   Development consent is granted to DA 03/2017 for the change of use of the existing dwelling to a child care centre for 30 children at 98 Manning Road, Double Bay, and for alterations and additions to the existing building to accommodate the proposed use, subject to the conditions of development consent in Annexure A.
(5)   Exhibits 1, 2, 3, D and MFI1 and MFI2 are returned.
Catchwords: APPEAL – development application – child care centre – whether unreasonable impact on traffic or parking – whether simulated outdoor play area acceptable – whether outdoor play areas adequate – restraints in utilising play areas in order to control acoustic impact - whether plan of management can be complied with
Legislation Cited: Education and Care Services National Regulations
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
Woollahra Local Environmental Plan 2014
Cases Cited: Kamrani Holdings Pty Ltd & Anor v Willoughby City Council [2016] NSWLEC 1146
Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315
The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2014] NSWLEC 1218
Texts Cited: Austroads Guide to Traffic Management
Child Care Planning Guideline
National Construction Code
National Quality Framework Assessment Checklist
RMS Guide to Traffic Generating Developments 2002
Woollahra Development Control Plan 2015
Woollahra Muncipal Council Traffic Management Strategy (Issue C)
Category: Principal judgment
Parties: Tahany Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)
Representation:
Counsel:
M Staunton (Applicant)
Solicitors:
Conomos Legal (Applicant)
M Hawley, Lindsay Taylor Lawyers (Respondent)

File Number(s): 2017/240032
Publication restriction: No

Judgment

COMMISSIONER: In Double Bay, a dwelling currently known as 98 Manning Road has frontage to both Manning Road and Epping Road, not far from where the two roads intersect. Tahany Pty Ltd (“Tahany”) seeks development consent to change the use of the existing dwelling to a child care centre for 30 children, as well as alterations and additions to the existing building to accommodate the proposed use. A development application seeking the same was refused by Woollahra Municipal Council (“the Council”) on 23 June 2017. Tahany appeals against that decision pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”).
The Council opposes the grant of development consent on the basis of a number of contentions, outlined below, which are concerned with additional traffic, the adequacy of the drop off and pick up arrangements, the amenity of play areas, the impact on the Manning Road streetscape and the adequacy of the Plan of Management.
For the reasons that are set out below, I have determined that none of the contentions raised by the Council warrant refusal of the development application. The evidence establishes that the additional traffic can be accommodated (with appropriate works to Epping Road), that there is adequate on-street parking available to allow satisfactory drop off and pick up, that the play areas have sufficient amenity, that the development is not incompatible with the Manning Road streetscape and that the Plan of Management is adequate and enforceable. Similarly, for the reasons that are set out below, each of the issues raised by the local resident objectors have either been satisfactorily addressed through the amended development application or do not warrant refusal of the proposed development. I have therefore determined that it is appropriate for development consent to be granted subject to the imposition of conditions of development consent, including a condition requiring compliance with the Plan of Management.

The proposed development

Following the commencement of the appeal on 7 August 2017, the development application was amended on 20 April 2018 to respond to contentions raised by the Council. At the hearing of the appeal, Tahany sought leave to further amend the development application. The amended development application is for the following proposed development:

The change of use of the existing dwelling to a child care centre.

Internal alterations to the existing dwelling at ground level to accommodate an office, internal stairs and lift, toilet facilities and indoor play area one (“IPA 1”).

An extension to the rear of the existing building at ground level including a raised deck for outdoor play area four (“OPA 4”) and perimeter screen fencing around the deck.

Excavation beneath the existing building to provide an additional level to the building at the lower ground floor to accommodate a staff room, kitchen, store, laundry, toilet facilities and a simulated outdoor play area referred to as simulated outdoor play area two (“SOPA 2”).

Use of the front setback of the site facing Manning Road as a play area referred to as outdoor play area two (“OPA 2”).

Conversion and use of the rear garden (fronting Epping Road) for the purposes of outdoor play area one (“OPA 1”).

Closure of the existing street entry on Manning Road, and provision of pedestrian access to Epping Road.

Demolition of the existing carport, modifications to the Epping Road boundary fence to accommodate separate pedestrian access, two stacked car parking spaces including an accessible parking space, and construction of a new driveway crossover.

Associated landscaping and site works.

Due to changes in the plans and a desire for the play areas to remain numbered in accordance with the original proposal, the proposal does not include an outdoor play area three, or a simulated outdoor play area one.
The floor plans demonstrating the layout of the lower ground level and ground level are shown in Figure 1. A void in the ground level allows daylight to filter from the skylight above into the simulated outdoor play area at the lower ground level.

In accordance with the proposed Plan of Management, the capacity of the child care centre is 30 children and the centre will operate between 7am and 6pm Monday to Friday. Each of the play areas is intended to be used as follows:

OPA 1 only to be used between 9am and 3pm.

OPA 2 only for passive play for a maximum of 9 children for 2 hours/day.

OPA 1 and OPA 4 are not to be used simultaneously for active play.

There will be a maximum of 12 children at any one time in OPA1.

There will be a maximum of 6 children in any one time in OPA 4.

There will be a maximum of 20 children in any one time in SOPA 2.

OPA 1 and SOPA 2 will not be used simultaneously for active play.

The Council’s position

The key contentions raised by the Council that remain in dispute on the amended development application can be summarised as follows:

The additional traffic movements will adversely impact on the safety and function of the local road network (Contention A).

The proposal does not provide onsite pick up and drop off, and there is not adequate on-street parking within the vicinity of the site for safe pick up and drop off (Contention B).

The staff parking is inadequate to accommodate the staff (Contention B).

The proposed driveway and car parking area does not allow vehicles to exit the site in a forward direction (Contention C).

The lower ground SOPA 2 does not have adequate amenity (Contention D).

There is potential interference with OPA 1 by the main entry pathway, and the pathway should be omitted from the activity area (Contention D).

The operation of the childcare centre that is proposed in the Plan of Management is considered unsatisfactory in light of the sizes and locations of the outdoor play areas within the centre, the number of transitions within the suggested daily programs, and the restriction on the number of hours of active play (Contention D).

The use of the Manning Road front setback for OPA 2, and the Perspex sought for in front of the hedges, is not consistent with the desired future character of Manning Road (Contention E).

There is a potential overlooking relationship between OPA 4 and 63 Epping Road (Contention G).

The Plan of Management is unlikely to be complied with (Contention K).

There is inadequate deep soil landscaping (Contention H).

The remaining contentions raised by the Council in its Second Further Amended Statement of Facts and Contentions have been resolved through the amended development application, by the provision of additional information, or by the agreement of the relevant experts.

The site and its locality

The hearing commenced with a site inspection. The site is legally identified as Lot 3 in DP 618276 and has an area of 384m². It has a frontage of 10.36m to Manning Road, and 11.93m to Epping Road. It has a fall of 2.83m from the south-western corner to the lowest point of the Epping Road frontage. A bus stop is located adjacent to the site on Manning Road, and the intersection of Epping and Manning Road is about 20m south of the site. The existing development in the locality consists predominantly of dwelling houses, ranging from one to three storeys in height. The dwelling to the south and adjacent to the site is in the process of construction, and is a large two-storey dwelling of contemporary design. Lough Playing Fields are located approximately 95m to the south-east of the site.

The planning framework

The site is zoned R3 Medium Density Residential pursuant to the Woollahra Local Environmental Plan 2014 (“WLEP 2014”). Development for the purposes of a child care centre is a nominated permissible use in the R3 zone. Clause 2.3(2) of the WLEP 2014 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are:

• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

The floor space ratio (FSR) development standard for the site under the WLEP 2014 is 0.75:1. The height development standard pursuant to the WLEP 2014 is 9.5m. The proposed development complies with both standards.
The State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (“SEPP EE”) commenced on 15 December 2017. However, as a result of the savings provision in Schedule 5, the SEPP EE does not apply to development applications lodged but not finally determined before its commencement. Notwithstanding this, cl 1(2) of Schedule 5 requires that the consent authority take into consideration the regulatory requirements and the National Quality Framework Assessment Checklist (“NQFAC”) set out in Part 4 of the Child Care Planning Guideline (“CCPG”). Specifically, cl 1 of Schedule 5 provides:

(1) This Policy does not apply to or in respect of the determination of a development application made under Part 4 of the Act, but not finally determined before the commencement of this Policy.
(2) Despite subclause (1), before determining a development application referred to in that subclause for development for the purpose of a centre-based child care facility, the consent authority must take into consideration the regulatory requirements and the National Quality Framework Assessment Checklist set out in Part 4 of the Child Care Planning Guideline, in relation to the proposed development.

The relevant provisions of the NQFAC and the CCPG are considered below.
The Woollahra Development Control Plan 2015 (“WDCP 2015”) also applies. Part B, cl B3.8.9 concerns non-residential land uses in residential zones, with controls in B3.8 to ensure that non-residential development is “consistent with the desired future character of the area and does not have an unreasonable impact on surrounding properties”. The relevant controls are:

“C1 The built form complies with the building envelope, footprint, excavation and built form and context controls in Sections B3.2-B3.4.
….
C2 The development is compatible with the streetscape and the desired future character of the street. For example, buildings in residential areas must maintain a scale consistent with the streetscape.
Note: Chapters B1 and B2 in this Part of the DCP define the desired future character for each precinct, and identify any special heritage, streetscape character and key elements within each precinct.
C3 Lighting, noise, hours of operation, and intensity of the use do not unreasonably impact on the residential amenity of adjoining properties, the street, or precinct.”

Part F1 of the WDCP 2015 specifically concerns child care centres, and at F1.3.1 and F1.3.2 the controls similarly concern consistency with the character of the streetscape, compliance with the building envelope controls, and minimising adverse impacts on adjoining and surrounding properties. One such control, C4 of cl 1.3.2, requires that the “location and design of open spaces, playground areas and balconies, terraces or the like, accessible to the children, minimise any direct views to or from neighbouring and surrounding properties.”
The provisions of the WDCP 2015 that are of particular relevance to the contentions raised are set out in my consideration below.

The evidence

The hearing commenced on site with evidence heard from a number of objectors to the proposal. The following is a summary of the issues raised:

Traffic, pedestrian and safety concerns along both Manning Road and Epping Road.

Inadequate parking available in Manning Road, Epping Road and surrounding streets, which will result in illegal parking or parking in neighbouring driveways.

Loss of privacy to the private open space and pool areas of 96 Manning Road and 63 Epping Road, and the visual impact of the proposed balcony when viewed from those spaces.

Acoustic impact on the amenity of the dwelling at 96 Manning Road.

Loss of airflow and sunlight to the outdoor pool area at 96 Manning Road.

The inappropriateness of the process in the Plan of Management for managing parent parking behaviour.

The inadequacy of the indoor spaces within the child care centre given that it will not be ‘purpose-built’.

Inappropriate site for a child-care centre, and there is no need for additional centres.

Expert Evidence

Mr Steven Cooper and Mr Stephen Gauld, acoustic consultants, gave expert evidence in a joint report tendered at the hearing and also gave evidence in a supplementary joint statement following amendments to the plans. The consequence of their agreed evidence is that if each of the play areas is used in accordance with the restrictions outlined in the Plan of Management, there will be no adverse acoustic impact of the operation of the centre. Additionally, they agree that in order to maintain compliance with acoustic criteria, the south western windows for IPA1 and the door from OPA2 to IPA1 are to be closed when IPA1 is in use (to address road traffic noise intrusion) and the SOPA 2 is to operate with the two clerestory windows on the north-western façade and the windows on the south-eastern side closed. As a result of their agreed evidence, a number of conditions of consent are agreed to by the parties, which require compliance with acoustic criteria as well as restrictions on the operation of certain areas of the centre. These conditions are as follows:

“Operational Noise Criteria
I.3.1   All noise emission from the site (including children play activities, children, vehicle movements and mechanical plant) must not exceed background noise level plus 5dB(A) when assessed as an Leq (15 minutes) at any affected point on any residential properties, with background noise level being 43dB(A).
I.3.2   At the front of the site, the noise emission from children in the Outdoor Play Area 2 shall not give rise to a noise impact of children exceeding background noise level + 10 dB(A) when assessed or measured as an Leq, 15 minute at any affected point on any residential premises, provided the length of time OPA2 is used is no greater than 2 hours per day.
I.3.3    Outdoor Play Area 1 is to operate with a maximum capacity of 12 children.
I.3.4    Outdoor Play Area 2 is to operate with a maximum capacity of 9 children, to be used for passive learning activities, and only for a total of 2 hours / day or less.
I3.5.    Outdoor Play Area 4 is to operate with a maximum of 6 children.
I3.6   The windows and door facing Manning Road are to be closed when IPA1 is in use (to address road traffic noise intrusion) except the door can be opened for ingress and egress.
I3.7    Simulated Outdoor Play Area 2 is to operate with a maximum capacity of 20 children).
I3.8   Outdoor Play Areas 1 and 4 are not to be used simultaneously.
I3.9    The three clerestory windows of Simulated Outdoor Play Area 2 (SOPA2) facing 96 Manning Road (that are not facing the void area) and the window of SOPA2 facing NO. 100 Manning Road are to be closed when SOPA2 is being used.
I3.10   The window of the toilet off SOPA2 is to be fixed glazing.
I3.11   If SOPA2 and Outdoor Play Area 1 are used at the same time for active play, the number of children in the play areas must be no more than as follows:

SOPA2

OPA1

8

12

16

10

20

8

I3.12 The above restrictions must be included within the Plan of Management for the centre.”

Mr Sanchit Kapoor, a traffic engineer employed by the Council, and Mr Craig McLaren, a consultant traffic engineer, gave expert opinion evidence in a joint report tendered at the hearing and in oral evidence. Their evidence is discussed in the below consideration of the contentions.
Expert opinion evidence was also given by town planners, Mr Anthony Rowan (engaged by the Council) and Ms Ellen Robertshaw (engaged by Tahany), and by childcare experts, Dr Brenda Abbey (engaged by the Council) and Ms Lynda Campbell (engaged by Tahany).
Mr Rowan and Ms Robertshaw agree that with the opaque panels around much of the elevated veranda that forms OPA 4, including on the north-western side, south-eastern side and 4m along from the north edge measured from the north western corner, there will be no overlooking from OPA 4 to the adjacent properties at 96 Manning Road, 100 Manning Road or 63 Epping Road. They also agree that with metal louvres on the outside of the north-western windows of the indoor play area (except that which is adjacent to the void), there will be no overlooking to 96 Manning Road.
The agreed expert opinion of Mr Rowan and Ms Robertshaw is also that the setbacks of the proposed development are acceptable, and that there will be no unacceptable overshadowing occasioned by the built form of the development.
Dr Abbey and Ms Campbell agree that the design of the centre, shown in the plans for the proposed development (as amended), is capable of adequate supervision, including having all children on the same level at the same time.
There were initial concerns by Dr Abbey with respect to the safety of OPA 1 given the potential conflict with the entry and the surveillance of children whilst an educator attends the entrance. However, Dr Abbey and Ms Campbell agree that with procedures in place in the Plan of Management to require visitors to remain outside while they wait for a staff member to be available to attend to them, there remains no issue of safety or surveillance arising from the location of the entry.

The expert evidence concerning the contentions that remain in dispute is discussed below. In considering those contentions, I deal first with the traffic and parking issues, followed by the amenity of the simulated play area, the adequacy of the remaining play areas, the issues concerning the Manning Road frontage, the adequacy of the Plan of Management and the adequacy of the deep soil landscaping.

Traffic and parking

As set out above, the Council’s contentions concern the additional traffic movements, the inadequacy of parking and pick up/drop off arrangements, and vehicle movements exiting the driveway.

Additional traffic movements

Objective O1 in section E.1.1.3 of the WDCP 2015 is to “minimise the amount and impact of vehicular traffic generated due to proposed development”. Both Epping Road and Manning Road are local streets, with an environmental capacity of 300 vehicle movements per hour in accordance with the RMS Guide to Traffic Generating Developments 2002 (“RMS Guide”).
Traffic counts undertaken by the Council in 2011 found vehicle trips on Epping Road during the morning peak period ranged between 421 and 463 vehicles per hour, and during afternoon peak period between 366 and 391 vehicles per hour. Similarly, tube counts conducted by Tahany in February 2018 showed vehicle trips on Epping Road during the morning peak period was 438 vehicles per hour and afternoon peak period 361 vehicles per hour. This demonstrates that traffic volumes in Epping Road during peak periods already significantly exceed the environmental capacity of the road. As a result, the Council contends that the additional traffic movements generated by the proposed development will adversely impact on the safety and function of the local road network.
Mr McLaren’s evidence is that, taking into account the estimated traffic movements of the traffic generated by the development, the traffic flows generated during the morning and afternoon peak hour periods would be an additional 3.9% to 4.3%. He opines that these additional flow levels, which occur only during the morning and afternoon peak periods, are not significant with respect to traffic flow efficiency, residential amenity and road safety considerations. He also notes that child care centres generate very little traffic between 9am and 3pm on weekdays and no traffic at all on weekends. In the traffic assessment prepared by Mr McLaren and lodged with the development application, he stated that “the peak traffic generation of the site is of low scale and will have little to no noticeable effect on traffic flow efficiency or residential amenity surrounding the site.”
With respect to the environmental capacity of Epping Road, Mr McLaren notes that the levels set by the RMS Guide relate to two aspects, the first is the ability of persons to cross roads (particularly the elderly) and the second is acoustic impacts. He points to section 4.3.4 of the RMS Guide, which states:

“In The Streets Where We Live, Landcom (1984), pedestrian safety and delay are further considered. This resulted in the definition of various behavioural thresholds, such as the observation that at 90 veh/hr children tend to stop playing in the street, and a 300 veh/hr limit is required for aged pedestrians to safely cross the average street. The impact of traffic noise on the Environmental Capacity of an area is a particularly important factor.”

Mr McLaren notes that Epping Road has the benefit of a pedestrian refuge in close proximity to the site which, by its presence, under strict application of the RMS Guide, effectively creates a staged crossing of the road in two movements. He opines that this reduces peak hourly trips for each side of the road carriageway to a volume well below the 300 vehicles per hour established by the RMS criteria, thus enabling the elderly to cross the road in two stages by pausing in the centre of the road within the refuge.
He opines that these devices also slow the traffic, and relies on the RMS Guide allowing traffic flows greater than environmental capacity through “traffic calming methods” or “speed reduction measures”. The RMS Guide states that these can be used “in situations where Environmental Capacity standards are already exceeded” and “may have a positive effect on traffic noise, and ensure that the existing level of pedestrian safety remains the same, or is reduced.” The note to Table 4.6, which sets out the environmental capacity, also states that the “Environmental Capacity of a street can be increased through a reduction in speed”. Mr McLaren opines that conditions of development consent requiring works to upgrade the pedestrian refuge in accordance with current standards and to install a concrete blister at the southern end of the western parking bays, adjacent to the pedestrian refuge, will enhance pedestrian safety at the refuge and along Epping Road near the site, and will also serve to reduce vehicle speed.
Mr McLaren also relies on the RMS Guide acknowledging that alterations to the levels of environmental capacity can be appropriate. It states that “while it is generally accepted that a departure from this standard may be accommodated to a degree, developers must justify plans where designs significantly exceed this standard.” Mr McLaren opines that the risk assessment that was carried out concerning traffic safety justifies that there will be no unacceptable impact caused by the 30 place child care centre.
Finally, Mr McLaren also relies upon the Traffic Management Strategy (Issue C) for Woollahra Muncipal Council dated 19 March 2014, which acknowledges that peak hour traffic volumes on a number of roads in Woollahra Local Government area were found to exceed the environmental capacity standards for maximum peak hour volumes. The report states that “This is not uncommon in eastern Sydney”.
Mr Kapoor did not adduce any expert opinion in response to Mr McLaren’s assessment of the impact of the additional traffic and the effect of the pedestrian refuge and blister on improving pedestrian safety and reducing vehicle speed. Further, he did not give any evidence in contradiction to the risk assessment.
I accept that the additional traffic generated on Epping Road by the development is acceptable. Firstly, I accept the evidence of Mr McLaren that the additional traffic generated is not significant with respect to traffic flow efficiency, residential amenity and road safety considerations. Secondly, I accept the evidence that upgrading the pedestrian refuge and installing a concrete blister will improve pedestrian safety by allowing a staged crossing of the road in two movements, with each side of the road carriageway having a volume less than the number in the RMS Guide. For these reasons, I am satisfied that the impact of vehicular traffic generated due to the proposed development is minimal.

Adequacy of parking

The WDCP 2015 sets out a number of controls with respect to parking, including requiring the provision of staff parking at 0.5 spaces per 100m² in E1.5.2 and requiring an on-site drop off and pick up area in F1.3.3.

Staff parking

The proposed development provides two stacked car parking spaces for intended use by staff, with the space closest to Epping Road also doubling as an accessible car space. The Plan of Management provides that staff will be required to vacate the accessible parking space, if the accessible space is required by a parent or carer by prior arrangement.
The provision of two car spaces for staff parking achieves compliance with the requirement of 0.5 spaces per 100m².
Notwithstanding this, Mr Kapoor is concerned that with 3 staff required for the centre, there is inadequate staff parking. His evidence is that further information should be provided about how the third staff member will get to the centre.
Mr McLaren points out that there is a well serviced bus stop right out the front of the centre, and that the Council’s policy is to encourage public transport use. Further, his evidence is that, in his experience of working on around 300 child care centres, in a centre that is out of the town centre, the percentage of staff driving to work varies between 50% and 67%. His evidence is therefore that, even if 67% of the staff drive, there is adequate staff parking on-site.
I am satisfied that the provision of two spaces on-site is adequate for staff parking. Whilst one of those spaces will have to be vacated if the accessible space is required for a drop-off or pick-up, the evidence of Mr McLaren is that accessible spaces in child care centres are used with “extremely low frequency”. As such, I consider that the provision of two spaces is compliant with the WDCP 2015. In circumstances where there is numerical compliance, s 4.15(3A)(a) of the EPA Act precludes me, in exercising the functions of the consent authority, from requiring more onerous standards with respect to that aspect of the development.

Drop off and pick up

Specifically, the controls in section F1.3.3 are as follows:

“C3 Development provides an on-site drop off and pick up area, which preferably:
a) is in the form of a one way driveway;
b) incorporates a passing bay; and
c) accommodates on-site the number of vehicles expected during the drop off and pick up times based on the 98th percentile queue length.
C4 A child care centre that cannot provide the drop off and pick up area on-site will only be considered if the applicant can demonstrate that:
a) the centre is not located on an arterial road;
b) there is adequate on-street parking vacancy rates such that the child care centre users will not unreasonably impact on the availability of on-street parking now or in the future; and
c) the walking catchment does not require the crossing of any arterial, sub-arterial or collector roads that do not have existing pedestrian crossing facilities within the catchment area.”

As the proposed development does not provide the drop off and pick up area on-site, it can only be considered satisfactory if (a), (b) and (c) of C4 are met. Mr McLaren and Mr Kapoor agree that the centre is not located on an arterial road, and that the walking catchment does not require the crossing of any arterial, sub-arterial or collector roads. As such, they agree that (a) and (c) of C4 are met. A dispute arises as to whether (b) is satisfied, which requires there to be adequate on-street parking vacancy rates.
The objectives of these controls are as follows:

“O2 To ensure a safe environment for pedestrians (especially children), motorists and cyclists surrounding the child care centre.
O3 To ensure that drop-off, pick-up and parking activity does not detrimentally
affect the availability of on-street parking and traffic flow in the local area.
O4 To ensure that vehicular access to and from the site does not detrimentally affect the traffic safety of surrounding properties.”

The controls and objectives also have a preamble concerning drop-off and pick-up, as follows:

“Sites that cannot provide on-site parking and drop off and pick up areas are not encouraged. Council will only consider such proposals if the child care centre is not located on an arterial road, and the applicant can demonstrate that there is adequate on-street parking vacancy rates such that the child care centre users will not unreasonably impact on the availability of on-street parking now or in the future. Council will not provide a dedicated on-street pick-up and drop-off zone for childcare centres.”

The Council’s contention is that there are not adequate on-street parking vacancy rates, and that therefore the child care centre users will unreasonably impact on the availability of on-street parking now and in the future.

Evidence and submissions on on-street parking availability for drop-off and pick-up of children

Mr McLaren’s evidence is that the conversion of an existing residence to a childcare centre is generally acceptable, but that the retained building cannot practically achieve control C3 to have a one-way driveway, passing bay or onsite parking for drop-off and pick-up activity based on the 98th percentile queue length.
However, Mr McLaren’s evidence is that there are adequate on-street parking vacancy rates. To support this opinion, he relies on queuing analyses based on the Austroads Guide to Traffic Management: Part 3: Traffic Studies and Analysis. Using the 98th percentile queue length, Mr McLaren’s analysis demonstrates that a maximum of four parent cars at any one time represents the peak accumulation of parked cars associated with the morning peak drop-off of children, with an afternoon pick-up period accumulation that is less due to the lower generation of vehicle trips. The analysis shows that for a 6.8 minute (min) duration of stay, 4 on-street car parking spaces are required to satisfy the 98th percentile queue. For a 10 min adopted duration of stay, 5 on-street parking spaces are required to satisfy the 98th percentile queue. By applying these principles, four service bays are required up to a maximum of 9 minutes and 8 seconds duration of stay, and five are needed for up to 13 minutes 1 second duration of stay.
The duration of stay is based on the average time taken for pick-up or drop-off. The data on the duration of stay was obtained by Mr McLaren from the RMS analysis data, which is from 20 different child care centres, 9 of which are long day care centres. The average length of stay of vehicles across all centres is 6.8 min, and across only the long day cares is 7.8 min. Four of the long day care centres relied upon on-street parking within a 200m walking distance, and 8 out of 9 rely on on-street parking. The 9 long day care centres surveyed by the RMS range between 29 to 66 children in the centre, have a mean parent car driver rate of 93% and have a duration of parking stay ranging from 4.6 min to 10.4 min. Mr McLaren considers that 6.8 min is the duration of stay applicable for the proposed development, given that the on-street parking relied upon (and discussed below) is conveniently located close to the site, whereas the duration of stay in the RMS data reflects centres that rely on walking up to 200m. In evidence, he pointed out the similarities between the proposed development and the centre in Ryde, which had an average duration of stay of only 4.6 min. However, he also considered a 10 min analysis in order to accommodate parking further away from the centre.
The traffic survey, conducted on 31 January 2018 by Curtis Traffic Surveys, demonstrates that, in the areas adjacent to the site and up to 100m to the south on Manning Road (known as zones A-D and K), there are a minimum of 13 spaces available on street for parking in the morning period, and a minimum of 5 in the afternoon peak period. In the afternoon peak period after 5pm, there are a minimum of 17 available spaces in those zones. Accordingly, Mr McLaren considers that there is sufficient on-street vacancy within 100m of the site to accommodate the 5 vehicles required (based on the 98th percentile for a 10min duration of stay) for parent use associated with the proposed development, without considering the reported vacancies for on-street parking within 100m walking distance on Kiaora Road, or between 100-200m from the centre. Figure 2 illustrates the areas surveyed, and where zones A-D and K are located.

Mr McLaren’s evidence is also that the proposed Plan of Management establishes adequate procedures to inform parents on enrolment of car parking spaces within zones A-D and K, and to encourage staff and parents to use public transport. Further, he opines that the Plan of Management will be effective in managing poor parking behaviour by signage and information warning parents not to park illegally, and making it clear that a child may lose their place in the centre if unsafe parking is recorded three times within the calendar year. He is also of the view that the complaints procedure will alert educators of illegal parking.
Mr Kapoor instead opines that the parking for drop-off and pick-up should be provided on-site. Whilst he accepts that the 6.8 min waiting time is appropriate for a queuing analysis where the parking is provided onsite, he considers that the queuing analysis should be based on a 10 min waiting time given that a person may walk up to 200m from where they have parked their car. Whilst his evidence in the joint report disputed the validity of the queuing analysis, Mr Kapoor did not provide any alternate analysis as a basis for his opinion and in cross-examination he agreed with the analysis based on 10min waiting time.
Mr Kapoor also disputes the reported vacancy rates resulting from the survey conducted in 2018 by Curtis Traffic Surveys. He considers that, based on his 6 months of experience with Woollahra Council, it is not an accurate reflection of available parking in the area. In order to verify this, he conducted a drive-by survey on 29 August 2018 between 8:30am and 8:45am, at which he drove through each of the zones and noted down the on-street parking vacancies. Based on that drive-by survey, he counted 6 vacant on-street parking spaces in the areas that comprise zones A-D and K. He opines that, based on the discrepancy between his count (6 spaces) and the reported vacancy in the survey at 8:30am (15 spaces), the survey by Curtis Traffic Surveys is not accurate.
The Council relies on the evidence of Mr Kapoor and further submits that the 2018 survey is not accurate as it was conducted on 31 January, which was the third day back of school for 2018. The Council also compares it to the earlier survey in 2016, since which 18 on-street spaces have been lost, and submits that because the numerical subtraction of 18 from the 2016 survey is not reflected in the 2018 survey, the 2018 survey is flawed in some way. The Council submits that the evidence of the residents, and their concerns with respect to the adequacy of parking, further supports their position that the survey is unreliable.
Further, the Council submits that the available on-street parking within zones A-D and K does not meet the RMS Guide of 1 space for 4 children, which would require 6 on-street vacancies in circumstances where 2 are provided on-site.
The Council also submits that even if the on-street parking is adequate in number to support up to 5 cars based on the queuing analysis for 10 min lengths of stay, using those vacant spaces will have a detrimental impact on the availability of on-street parking now or in the future, contrary to C4 in F1.3.3 of the WDCP 2015. This is because, at times, up to 100% of the available parking on-street is being taken by the proposed development. The Council submits that in circumstances where all of the on-street parking capacity needs to be taken to accommodate the parking for drop-off and pick-up, it will have a detrimental impact on the availability of on-street parking.
The Council relies on the decision of Senior Commissioner Moore (as His Honour then was) in The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2014] NSWLEC 1218 as authority for the proposition that the parking behaviour of parents during pick-up and drop-off can be so inappropriate such as to warrant the refusal of a child care centre.

Findings on the adequacy of on-street parking to accommodate parking for drop-off and pick-up

Based on the evidence of Mr McLaren, I accept that there are adequate on-street parking vacancy rates such that the child care centre users will not unreasonably impact on the availability of on-street parking now or in the future. Firstly, I prefer the queuing analysis, rather than a strict application of the RMS guide to provide 1 off-street parking space for every 4 children. This ratio is not reflected in the WDCP 2015, which instead, in referring to the provision of on-site parking, relies on queue analysis.
Secondly, I accept the queuing analysis, based on 10 min, demonstrates that 5 on-street parking spaces are required. This is a conservative analysis in circumstances where only one of the centres in the RMS Guide has an average vehicle length of stay longer than 10 min, and where most of the centres relied on on-street parking within 200m. An analysis based on 7.8 min is sufficient (and demonstrates that only 4 on-street spaces are required), as that is the average of all the day care centres in the RMS Guide, and, contrary to the evidence of Mr Kapoor, the proposed development does not rely on available parking beyond 100m from the centre. I accept the evidence of Mr McLaren that, where parking is available in the immediate vicinity of the site within zones A-D and K, the length of stay is not likely to be 10 min.

Thirdly, I also accept the veracity of the parking survey conducted by Curtis Traffic Surveys. There is no evidence to support the proposition, put on behalf of the Council, that the 31st January is a date during the school term on which the parking vacancies would be atypical. Further, I do not accept that Mr Kapoor’s drive-by survey somehow throws doubt on the survey conducted. If anything, it supports Mr McLaren’s evidence that there is adequate parking in zones A-D and K at 8:30am to accommodate the number of spaces required to satisfy the 98th percentile queue. The mere fact that it differs from the surveyed vacancy of 15 does not mean that the entire survey is placed into doubt. The inconsistency between the two reported vacancies could be due to any number of factors, and in circumstances where the data set is limited in the manner provided by Mr Kapoor, I prefer the survey conducted by Curtis Traffic Surveys, which is conducted independently by a specialised traffic surveyor.
Similarly, I do not accept the Council’s submission that the inconsistency between the 2016 survey, which was done prior to the loss of 18 spaces, and the 2018 survey, creates questions about the veracity of the survey relied upon. I accept the evidence of Mr McLaren, given in cross-examination, that the two surveys simply show available on-street parking before and after the removal of those available spaces. Contrary to the submission made by the Council, the loss of those spaces doesn’t simply equate to a mathematical subtraction that should be reflected in the later survey, but rather could have caused changed parking behaviour, such as causing residents to park in their own premises. Further, as acknowledged by Ms Hawley, the 2016 survey was accompanied by a note that said the playing fields were in use, which could also explain why the later survey does not reflect a mathematical subtraction of the lost spaces.
Finally, many of the residents’ concerns about parking concern Manning Road north of the intersection with Epping Road, which is not relied upon by Tahany for the provision of on-street parking. Although there were some concerns about whether there is adequate parking along Epping Road in the mornings, there was no evidence that contradicts the results of the survey in the broader area (taking into account zones A-D and K).
Therefore, I am satisfied that there are sufficient on-street parking spaces within zones A-D and K to satisfy the 98th percentile queue demand, based on a duration of stay of 10 min and the shorter, more accurate, duration of stay of 7.8 min. Further, within 100m of the centre there is additional capacity outside zones A-D and K, although the Plan of Management requires that the parents be encouraged to park in zones A-D and K and on the southern end of Kiaora Road. I also accept that the Plan of Management sets out adequate procedures for managing poor parking behaviour. Further, the decision on the development application in The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council can be distinguished from the present application, as the evidence in those proceedings was that poor parking behaviour by parents during drop-off and pick-up already existed on the site as a result of the existing use as a school.
Given the short duration of stay, the management procedures set out in the Plan of Management, and that the parking demand will occur only during the weekday morning and afternoon drop-off and pick-up period, I am satisfied that the lack of on-site parking will not unreasonably impact on the availability of on-street parking now or in the future. Even if all of the parking capacity on street within zones A-D and K is occupied as a result of the proposed development, it will only be occupied for a short duration. I am therefore satisfied that each of the controls in C4 of F1.3.3 of the WDCP 2015 are met, and that the parking is satisfactory notwithstanding that the centre is not providing on-site parking for pick-up and drop-off.

Vehicles exiting the site

Part E1 of the WDCP 2015, at E1.10.6, provides that the driveway should be designed to allow vehicles to exit the driveway in a forward direction. Specifically, it provides:

“The design of driveways and access points, except for dwelling houses, is to be such that vehicle entry and exit from a site, onto a public road, is made by driving in a forward direction, unless otherwise required by Council.”

The proposed driveway and car parking area does not allow vehicles to exit the site in a forward direction. The Council contends, therefore, that the vehicle access does not comply and therefore the development should be refused on that basis. Its contention also refers to objective C36 of the CCPG, which recommends designing the childcare facility so that vehicles can enter and exit the site in a forward direction.
Mr McLaren’s evidence is that vehicular movements will be lower with the proposed use than if the site remained a dwelling house. His evidence is that a single dwelling generates 9 to 10 daily traffic flows (5 in and 5 out), 7 days a week including Saturdays and Sundays. The proposed child care centre will not generate any traffic activity on the weekend or between the hours of 6pm and 7am on weekdays. His evidence is that it will generate 4 daily trips (2 in and 2 out) for the two staff spaces, and has the potential to generate 4 daily trips (2 in and 2 out) if a parent or carer uses the on-site parking for disabled access. This would result in 8 daily traffic flows, which is less than the 9 or 10 for a dwelling house. In his opinion there is unlikely to be any use of the accessible parking of the proposed development, as, based on an a survey of a number of child care centres operated by the managers of a centre at Newcastle Road, Rose Bay, there has been no use of the accessible car spaces at those centres. In considering this further in oral evidence, Mr McLaren considered that even with extra movements for staff to move a vehicle to allow for a parent to access the disabled parking space, the movements would be a similar number to that expected for a dwelling house.
Mr Kapoor opines instead that there will be greater use of the accessible space at the proposed development than the use of the space at the child care centre at Newcastle Street, Rose Bay, because of the availability of onsite parking at the latter. He considers that, therefore, there will be more vehicular movements in and out of the driveway as staff will be required to move their cars to allow a parent to access the accessible space. Accordingly, he opines that the proposed development will have more vehicular traffic in the driveway than the traffic typical of a dwelling house.
Mr Kapoor provided no analysis to support his opinion that the disabled space of the proposed development would be utilised more often than in other child care centres. The availability of other on-site parking at the Newcastle Street, Rose Bay centre is irrelevant to the utilisation of a disabled or accessible space by a parent or carer who needs to use such a space. As such, there is no substance to his opinion that movements in and out of the driveway of the proposed development would be greater than that expected for a dwelling. I am therefore obliged to accept the analysis of Mr McLaren that demonstrates that accessible parking is rarely required by parents, and the use of the car parking spaces for staff members and one parent for pick up and drop off will generate less or the same number of movements than that for a dwelling. In circumstances where a dwelling is considered as an acceptable exception for vehicles exiting in a forward direction, and the proposed use of the driveway will generate less or the same movements than that of a dwelling, I find it is acceptable that the vehicles exiting the site will not do so in a forward direction.

Amenity of the simulated outdoor play area

The NQFAC set out in Part 4 of the CCPG provides the following with respect to outdoor space:

“The proposed development includes at least 7.0 square metres of unencumbered outdoor space for each child.
Refer to regulation 108 of the Education and Care Services National Regulation for further information on calculating outdoor space, and for different requirements for out-of-school-hours care services.”

Similar controls apply to development for the purpose of a child care centre pursuant to F.1.3.5 of the WDCP 2015, which requires at C5 that the outdoor play area provides a minimum of 7m² of unencumbered outdoor space per child. C6 also requires that the outdoor play area provides for both active and quiet play opportunities. Specifically, it provides:

“C6 The outdoor play area provides for both active and quiet play opportunities, and should generally include: an open area of approx. ⅓ of the playground for gross motor activities such as running; approx. ⅓ of the playground for active physical play such as climbing; and approx. ⅓ of the playground for focused play like sandpits, craft (including formal quiet areas for contained play).
Note: To be shown on the landscape plan.
C7 At least 50% of the outdoor play area is unencumbered and available for free active and physical play.
C8 The outdoor play area is to include a variety of surfaces such as grass, sand, hard paving and mounding.
Note: To be shown on the landscape plan.”

Regulation 108 of the Education and Care Services National Regulations (“ECS Regulations”) requires that:

108 Space requirements—outdoor space
...
(2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space.
Penalty: $2000.
(3) In calculating the area of unencumbered outdoor space required, the following areas are to be excluded—
(a) any pathway or thoroughfare, except where used by children as part of the education and care program;
(b) any car parking area;
(c) any storage shed or other storage area;
(d) any other space that is not suitable for children.

(4) A verandah that is included in calculating the area of indoor space cannot be included in calculating the area of outdoor space.
(5) An area of unencumbered indoor space may be included in calculating the outdoor space of a service that provides education and care to children over preschool age if—
(a) the Regulatory Authority has given written approval; and
(b) that indoor space has not been included in calculating the indoor space under regulation 107.

…

Pursuant to Part 2.2 Division 5 of the ECS Regulations, an application can be made for a waiver of the requirement under cl 108, which is referred to in the regulations as a service waiver.
In providing guidance on applying the national regulations, page 34 of the CCPG sets out the following guide for simulated outdoor environments:

“Simulated outdoor environments
Proponents should aim to provide the requisite amount of unencumbered outdoor space in all development applications.
A service approval will only be granted in exceptional circumstances when outdoor space requirements are not met. For an exemption to be granted, the preferred alternate solution is that indoor space be designed as a simulated outdoor environment.
Simulated outdoor space must be provided in addition to indoor space and cannot be counted twice when calculating areas.
Simulated outdoor environments are internal spaces that have all the features and experiences and qualities of an outdoor space.
They should promote the same learning outcomes that are developed during outdoor play. Simulated outdoor environments should have:
• more access to natural light and ventilation than required for an internal space through large windows, glass doors and panels to enable views of trees, views of the sky and clouds and movement outside the facility
• skylights to give a sense of the external climate
• a combination of different floor types and textures, including wooden decking, pebbles, mounds, ridges, grass, bark and artificial grass, to mimic the uneven surfaces of an outdoor environment
• sand pits and water play areas
• furniture made of logs and stepping logs
• dense indoor planting and green vegetated walls
• climbing frames, walking and/or bike tracks
• vegetable gardens and gardening tubs.”

The proposed simulated outdoor play area

The proposed SOPA has an area of 49.11m², a floor to ceiling height of 2.4m, and sits 1.3m below the ground level of the adjacent outdoor play area, OPA 1. The proposed design of the space is shown in Figure 3.

The SOPA has windows both on the north-west and the south-east. However, due to the level of excavation, the south-eastern windows are subterranean and are unlikely to provide any sunlight or views to the outdoors. Due to the ground level adjacent to the SOPA, the windows on the north-western side of the SOPA will have sill heights of 1.3-1.45m. The experts agree that the SOPA is unlikely to have any direct sunlight. However, the SOPA will receive daylight through a void in the ground level that has a skylight above, which serves as a light well, and through the north-west windows.
As the acoustic evidence requires the windows to be closed when the SOPA is in use, the area will rely on mechanical ventilation through an air-conditioning system.
As a result of its design and location, the SOPA does not meet that part of the guide that requires “large windows, glass doors and panels to enable views of trees, views of the sky and clouds and movement outside the facility”.

The parties’ positions on whether the area is acceptable

The Council’s position is that SOPA 2 has inadequate amenity, and that it therefore cannot be considered as an alternative to an outdoor space. This is supported by the evidence of Mr Rowan, who opines that the high sill heights (above the eye level of a child), the low ceiling height, the mechanical ventilation, the lack of direct sunlight and the minimal daylight, means that the area will be a “dark gloomy space” and will create an “uncomfortable environment” for 20 children. Mr Rowan also expresses concern that once the area is mechanically ventilated, the ceiling height will be further reduced, unless it is mechanically ventilated using a bulk head in the staff room and service areas. Dr Abbey also opines that the area is unacceptable as it doesn’t have the “feeling of being outside”, where they won’t be able to “see creatures or the ants, or pickup sticks or what normally children would do in an outdoor environment”.
By contrast, the evidence of Ms Robertshaw is that the void area with the skylights above, will provide adequate daylight access which can then be accompanied by some artificial lighting. As such, she opines that it will not be a dark area. Further, her evidence is that the landscape plan for SOPA 2 demonstrates that the area will be landscaped with a variety of facilities such that the children will have a similar experience to that which they would have if they were in a natural setting. She also considers that the ceiling height is adequate for a child. Ms Robertshaw is of the opinion that, in circumstances where there are four outdoor play areas available on site, the SOPA provides an opportunity to an alternative outdoor play space particularly in inclement weather. Her view is that the amenity is also acceptable in circumstances where the draft programming demonstrates that the children are expected to be in there for a total of around 3 hours, with rotation between this and other spaces within the 3 hours.
Similarly, Ms Campbell’s evidence is that the space will have adequate ventilation even if it relies on mechanical ventilation, and that the space has adequate natural light. Her opinion is that, with respect to the requirement under the ECS Regulations to have access to the natural environment, the aim is to provide them with opportunities to explore and experience natural type materials, which materials include gardens, planting and insects such as worm farms. She opines that a simulated outdoor space need not have every particular element, but only some of those elements. Given the design of the space, she opines that children will be focussed on features such as the sandpit, so there is unlikely to be a feeling of overcrowding. Further, and consistent with the opinion of Ms Robertshaw, she opines that children will be moving between that simulated space and other spaces, including the adjacent outdoor space.
With respect to the requirement that the simulated outdoor space is to provide more amenity than an indoor play area, Tahany, through its counsel, refers to the requirements of the CCPG concerning indoor play areas, which provides only that (at Part 4.4) “Services must be well ventilated, have adequate natural light, and be maintained at a temperature that ensures the safety and wellbeing of children”. Mr Staunton notes that the regulation requires that ceiling heights meet the requirements of the National Construction Code, and that the design guidance goes on to acknowledge that ventilation can be achieved through a mixture of natural cross-ventilation and air-conditioning, and that designers should minimise the need for artificial lighting in a centre. As such, Tahany submits that the centre, including the SOPA, achieves all these things.

The SOPA is acceptable

In considering the adequacy of the SOPA as a substitute for an outdoor play area, I accept that it ought to be considered in the context of the entire proposal, consistent with the submissions made on behalf of Tahany. It is not intended for use as a substitute for all outdoor play for the centre. Instead, the area comprises only one of four areas for use for outdoor play, and is only 23% of the total proposed outdoor play area.
In that context, I consider that, for the purpose of determining the development application, the amenity of the SOPA is adequate and the SOPA is an acceptable substitute for an outdoor play area. I reach this view for the following reasons. Firstly, despite its location 1.3m below the natural ground level, the design of the proposal has maximised the daylight that can be received by the SOPA through a light well created by the void at the ground level and the skylight above. As such, I accept the evidence of Ms Campbell and Ms Robertshaw that the area receives adequate natural daylight. Secondly, the detailed design demonstrates that the play area has different flooring types and play mediums (e.g. the sandpit, the water play area, and the plantings), which provide different elements drawn from the natural environment. As such, I accept the evidence of Ms Campbell that it provides opportunities to explore and experience those different elements. This is also consistent with the controls in F 1.3.5 of the WDCP 2015 to provide a variety of surfaces, and different areas of play. Thirdly, the SOPA is only one of four outdoor play areas, and the draft programming in the Plan of Management clearly shows that there will be movement of the children between this area and other areas within the centre, including the three outdoor play areas. As such, although the SOPA offers only part of the experience of the natural environment and some limited play typical of the outdoors, this is acceptable in the context where it is one of four different play areas to be utilised for such experiences and play. For these three reasons, taken together, I consider that the proposed SOPA is an acceptable substitute for an outdoor play area for the purposes of determining the development application.
Further, given the height of children and the constraints of the excavation, I accept that a ceiling height of 2.4m is adequate for this play space, but that a condition of consent should be imposed to prevent any further reduction in the floor to ceiling height. I consider that mechanical ventilation is acceptable where the windows need to remain closed or fixed to reduce the acoustic impact of the proposal. In that respect, I accept the evidence of Ms Campbell that mechanical ventilation is acceptable. Finally, the sill height of the windows does not prevent a child from gaining an appreciation of the surrounds beyond the SOPA, as the mere fact that a sill height is above eye level does not preclude looking upwards and out of a window when standing at a distance from that window.

Adequacy of remaining outdoor play areas

There are a number of remaining issues that have been raised by Mr Rowan and Dr Abbey with respect to the outdoor play areas.

Amenity of OPA 4

The first issue is that Mr Rowan opines that OPA 4 has inadequate amenity. He forms this opinion on the basis that the space is only 37.59m² and is enclosed by panels around the edges of the balcony, many of which are opaque or glazed to prevent overlooking. As such, he forms the view that it is a sub-standard space without the opportunity for running around and other forms of active play. Dr Abbey expressed concern about whether children will fit within that area once play equipment is placed there.
I do not accept that OPA 4 has inadequate amenity, due to its size or enclosure by panels. Instead, I prefer the evidence of both Ms Campbell and Ms Robertshaw that it is adequate to accommodate outdoor play including running by 6 children, which is the limit on that space in the Plan of Management. In particular, Ms Campbell relied on her experience of childcare centres utilising verandas in an effective manner as outdoor play areas. I consider that OPA 4 also should be considered in the context of the proposal as a whole, in which it is one of four areas offering an experience of outdoor play, and through which the children will transition during a given day. Further, none of the other experts supported Mr Rowan’s opinion that the enclosure of the play area with panels results in poor amenity in the play area. Rather, Dr Abbey and Ms Campbell both considered that even with extending the opaque panels to prevent overlooking, there would be no negative consequence for OPA 4.

Exclusion of pathways from area of play

The second issue concerning the outdoor play areas is that Dr Abbey considers that the entry path, which forms part of OPA 1, should not form part of the area used to calculate the total area of the OPA. As pictured in Figure 1, the entry path has a gradient of 1:20 and is adjacent to the main play area, with two steps that run alongside the path. The effect of this is that the access path forms a sunken area that is two steps lower than the main play area. Mr Rowan and Dr Abbey are of the opinion that that area should be excluded from the calculation of the total area of OPA 1, as it is a thoroughfare. No other reason was provided in support of this opinion.
A third and related issue is that the paths of travel from the kitchen, which is adjacent to SOPA 2, are not marked on the plan and in Dr Abbey’s opinion those pathways should be excluded from the calculation of the area of SOPA 2. Again, no other reason for excluding them was given other than the fact that, in the opinion of Dr Abbey, they will be a thoroughfare.
Tahany submits that, to the contrary, regulation 108 makes it clear that a pathway or thoroughfare is excluded “except where used by children as part of the education and care program.” The evidence of Ms Campbell is that there is no reason why the pathways within SOPA 2 and OPA 1 can’t be used as part of the education and care program. In particular, her evidence is that children can run and walk across those areas at any time that they are within the play area.
I accept the evidence of Ms Campbell and the submissions made on behalf of Tahany. The regulation makes it clear that the pathways and thoroughfares can be counted as unencumbered space if they are used by the children as part of the education and care program. There is nothing about the design of those areas that preclude them from being so used, and I accept the evidence of Ms Campbell that they are likely to be used by children running and walking across those areas.

Sufficiency of outdoor play area

The fourth issue, which was also raised in the Second Further Amended Statement of Facts and Contentions, is that the total of the outdoor play areas is insufficient as all the areas are not available at all times. This issue is based on two concerns. First, Dr Abbey expressed concern that this meant that the children are not getting sufficient play in the outdoor environment, or sufficient active play. Second, Dr Abbey referred to a directive from the regulatory authority that, for the purpose of determining service approvals, officers are only to take into account outdoor space available to the children at all times during the services’ operating hours to calculate the amount of outdoor space and determine whether 7m² is provided for each child.
With respect to the first concern, Tahany notes that this was not raised in any contention by the Council but submits that on the indicative program in the Plan of Management, there is sufficient active play. It relies on the evidence of Ms Campbell that, on the calculation that the indicative program allows 1hr 36min of active play, this is sufficient active play to be provided at a child care centre. Further, her evidence is that she could prepare a program that provides more opportunities for active play and outdoor play, including for up to 3 hours of active play for each child, even with the restrictions on some of the areas.
I accept this submission and the evidence of Ms Campbell. The restrictions on the hours of use of particular outdoor play areas are not overly constraining and as such they allow adequate time for outdoor play. Further, I accept the evidence of Ms Campbell that additional active play could be accommodated in a timetable or program if required.
With respect to the directive from the regulatory authority, Tahany submits that there is no legislative basis for that directive. That is, there is nothing in the ECS Regulations, the controls or the CCPG that says that the outdoor space requirement in Regulation 108 must be available at all times that the centre is operating. Tahany also relies on the decision of Kamrani Holdings Pty Ltd & Anor v Willoughby City Council [2016] NSWLEC 1146, in which there were restrictions placed on the hours of use of outdoor play areas, and those restrictions did not result in an issue concerning the sufficiency of the area provided for outdoor play.
I accept the submissions made on behalf of Tahany. There is nothing in the ECS Regulations, the controls or the CCPG which prevents outdoor play area that is only utilised for part of the day from being included in the calculation of the total area. Secondly, the indicative program demonstrates that the restrictions can be accommodated within a daily program whilst also allowing the children to have adequate outdoor and active play.
As a result, based on the evidence of Ms Campbell, I consider that the outdoor play areas are sufficient to accommodate the number of children proposed in the development application. The division of the total outdoor space into four different play areas, including the SOPA, allows different experiences to be provided in each of the play areas. The indicative programs demonstrate that it is intended to rotate children through those areas so that each child has the opportunity to have those different experiences.

Manning Road frontage

The site the subject of the development application is within the Manning Road Precinct, which has the following Desired future character objectives (from WDCP 2015 B1 p.16):

“O1 To respect and enhance the streetscape character and key elements of the precinct.
O2 To establish a transition between the urban quality of the Double Bay centre and the landscape setting and built form character of the residential precinct.
O3 To reinforce the landscape character and low scale residential character of the Double Bay valley floor.
O4 To retain and reinforce the green setting of mature street trees, private trees and garden plantings.
O5 To ensure on-site parking does not dominate the streetscape.
O6 To ensure that contemporary housing designs do not detract from the streetscape character or adjoining period housing.”

The Council contends that the use of the Manning Road front setback for OPA 2, and the Perspex acoustic treatment between the hedge and the picket fence, is not consistent with the desired future character of Manning Road.
Mr Rowan and Ms Robertshaw agree that the streetscape presentation to Manning Road is a relevant consideration, and that the existing building makes a positive contribution to the Manning Road streetscape. They agree that a natural turf finish to the front setback is consistent with the streetscape objectives for the Manning Road precinct. They also agree that the existing rear treatments do not make any positive contribution to the Epping Road streetscape, and, following the amendments to the plans, no issue was raised with respect to the presentation of the proposal to Epping Road.
Mr Rowan and Ms Robertshaw agree that the existing picket fence provides a positive contribution to the streetscape of Manning Road, and that the proposed herb wall that forms part of OPA 2 should be located on the northern side and limited in height to 1.2m.
Mr Rowan’s evidence is that the Perspex acoustic fence should be set back from the street edge, with the landscaping in front of it to ensure the architectural qualities of the existing picket fence are not compromised. He opines that Perspex is not a typical residential material within the streetscape, and the hedging would screen its visual impact.
Further, in his oral evidence, Mr Rowan opined that children using the grassed area within the front setback as a play area will change the character of the street and the presentation of the property in the street. He is of the opinion that the level of intensity of use of that area would be greater than that typically expected of a residential area.
Ms Robertshaw’s evidence is that there are varying treatments on Manning Road, and there is no consistency of front gardens along the streetscape. Her evidence is that there is a variety of fencing styles and heights along the streetscape of Manning Road, including masonry walls, hedging and timber pickets. At the property at 96 Manning Road, the frontage comprises of a large area for car parking and only a small area for landscaping behind a wall. In that context, Ms Robertshaw opines that the retention of the existing masonry and metal picket fencing along the frontage of the site, with an acoustic barrier of clear Perspex and dense hedging behind, will not result in development which is contrary to the objectives of the Manning Road Precinct. Further, her evidence is that the acoustic screen of 1.4m and the landscaping with a depth of 750mm will provide adequate separation between the public domain and the area which will be used by the children. She also opines that there is no issue with children using the front landscaped area for play, which she considers an appropriate use of the area that would not detract from its garden setting.
I accept that, in the present context, the clear Perspex screen can be placed between the hedge and the fencing. I do not accept the evidence of Mr Rowan that this will unacceptably compromise the appearance of the picket fence in the streetscape. I accept the evidence of Ms Robertshaw that in the context of there being mixed fencing treatments and mixed frontages along Manning Road, it is not unacceptable to have Perspex behind a picket fence. I accept her evidence that it will blend into the hedge.
Further, I find that children playing in the front setback for up to two hours a day is not inconsistent with the character of a residential streetscape. I do not accept Mr Rowan’s evidence and I instead prefer Ms Robertshaw’s opinion that use of the front landscaped area for play does not detract from the landscape setting of the precinct. Finally, a child care centre is a permissible use in the zone, and play that may be visible or audible from the street for two hours a day associated with that permissible use is an acceptable activity within the front setback.
For all these reasons, I am of the view that the proposed development is consistent with the desired future character objectives of the Manning Road precinct.

Plan of Management

The proposed Plan of Management sets out the hours of the centre, its capacity, how it will be staffed, induction and drop off/pick up procedures, procedures with respect to visitors, how the programming will operate, how acoustic controls will be met, how car parking and waste will be managed, emergency procedures and a procedure for managing complaints. It also sets out how it will be updated. With respect to the programming and noise management, the proposed Plan of Management provides, inter alia:

The restrictions on hours of use, the number of children and the type of play for each outdoor play area and the SOPA.

An indicative scheduling program to demonstrate an effective program that maintains the restrictions.

Other procedures for noise management with respect to the closing of windows.

The Council contends that there remain concerns with how the programming of the centre will operate to ensure that the acoustic requirements are met, the supervision requirements are met, whilst also allowing adequate access to outdoor active play. The Council submits due to these constraints, which are contained in the Plan of Management, the Plan of Management is unreasonable and unlikely to be complied with.
In support of this contention, Dr Abbey’s evidence is that the indicative program has too many transitions that do not take into account child-directed play. She opines that although the program appears to work on paper, the reality is that educators will not routinely interrupt play in order to move children around the centre in accordance with that program.
Further, Mr Rowan gave evidence that, in his view, educators don’t have the necessary ability to understand the restrictions in the Plan of Management, because to do so they need to interpret the acoustic report.
The proposed Plan of Management also demonstrates that parents will be informed of appropriate parking locations for pick-up and drop-off, and that action will be taken if parents park illegally. The Council submits that managing parking in this way is impractical, as it would require a staff member to stand in the neighbouring streets to monitor parking behaviour.

The Planning Principle

In Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315, Commissioner Brown set out the following planning principle with respect to a Plan of Management:

“In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered:
1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?
2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?
3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?
4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?
5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?
6. Is the Management Plan to be enforced as a condition of consent?
7. Does the Management Plan contain complaint management procedures?
8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?”

The position of Tahany on the Plan of Management

Tahany submits that there is nothing unreasonable about the controls on the operation of the centre, particularly in circumstances where it is managed and run by adult educators. Tahany points out that the Plan of Management requires the educators to be provided with the controls and restrictions, and submits that the Plan of Management is clear on what the maximum number of children is for each area and the other restrictions that apply. Tahany submits that the Plan of Management is readily enforceable and that breaches can be enforced by the Council through fines, and managed by the centre by reverting to compliance, such as closing a window or reducing the number of children in an area. Further, Tahany submits that the Plan of Management demonstrates that there is a suitable daily program that can be utilised whilst also maintaining the restrictions. It submits that, consistent with the evidence of Ms Campbell, a new program could be established using a process that ensures that the relevant acoustic goals and child supervision limitations are adhered to.
These submissions are supported by the evidence of Ms Campbell, who opines that the indicative program does not have an unreasonable number of transitions, and that the restrictions on the use of the various areas can be easily accommodated.

The Plan of Management is satisfactory

I accept that the Plan of Management is satisfactory and meets the requirements established by the planning principle in Renaldo Plus 3 Pty Limited v Hurstville City Council. First, I accept that the restrictions on each of the play areas are sufficiently clear. Contrary to the evidence of Mr Rowan, there is no requirement for the educators to interpret the acoustic report.
Second, the sample program table demonstrates that compliance can be achieved but it is indicative only. Therefore, any concerns of Dr Abbey with respect to the reasonableness of the number of transitions in that particular program do not arise at the stage of assessing the development application. I accept that educators would be sufficiently able to adapt the program to respond to child-directed play by extending the time in some of the areas, which would maintain the restrictions on each of the play areas.
Thirdly, I accept the evidence of Ms Campbell that the restrictions are workable and that other programs could be developed that maintain those restrictions, whilst also ensuring that there is adequate supervision and adequate time for the various types of play.
Fourthly, I consider that the complaints procedure in place will notify the centre of illegal parking, which will then engage the procedure for dealing with poor parking behaviour.
Finally, the Plan of Management will be enforced as a condition of consent, and contains complaint management procedures, as well as a procedure for updating and changing the Management Plan.
For these reasons, I am of the view that the Plan of Management is an appropriate way to manage the operation of the child care centre and to ensure that the acoustic impact is reasonable and that parking behaviour is managed, whilst also providing recourse for neighbouring residents through a complaints procedure.

Deep Soil Landscaping

Part B3.7 of the WDCP 2015 sets out the requirements for landscaping and deep soil landscaping. In particular, it requires that for development in the R3 Medium Density Residential zone, 50% of the site area outside the buildable area should be deep soil landscaped area, and 40% of the front setback should comprise deep soil landscaped area. The proposed development complies with the requirement for 40% of the front setback to comprise deep soil landscaped area. However, only around 19% of the total site area is deep soil landscaping. The objectives of these controls are as follows:

“O1 To ensure that the areas outside the floorplate contribute to the desired future character of the location.
O2 To provide sufficient deep soil landscaped area to support substantial vegetation.
O3 To provide for on-site stormwater absorption.”

Given that the proposed development maintains the streetscape presentation to Manning Road and increases (albeit marginally) the area of deep soil landscaping across the site, I am satisfied that the deep soil landscaped area is sufficient and the numerical non-compliance does not warrant refusal of the development application.

Overdevelopment

Mr Rowan maintained his opinion that the child care centre is an overdevelopment of the site. However, the proposal is complaint with the FSR control and the indoor play area is of sufficient area to allow the minimum 3.25m² of unencumbered play per child for the 30 children proposed. As such, with my findings that the amenity of the SOPA is acceptable and the outdoor play areas are acceptable, none of the indicia relied upon by Mr Rowan to establish that it is an overdevelopment have been made out. Further, both Mr Rowan and Ms Robertshaw agree that with opaque glazing and privacy screens, there will be no privacy impacts, and that the setbacks are acceptable.

As such, although I acknowledge that the proposed development is on a relatively small site, I don’t accept that it is an overdevelopment.

Other issues raised by local residents

The above consideration demonstrates that each of the concerns raised by the residents regarding privacy, acoustic impact, traffic and parking, do not warrant refusal of the application. With respect to the visual impact of the proposed balcony from the rear private open space of 96 Manning Road and 63 Epping Road, the joint evidence of the expert town planners is that the setbacks are acceptable. Further, there will be no overshadowing of 96 Manning Road by the proposal, and there is no evidence that the proposed development will result in a lack of airflow to the rear private open space of 96 Manning Road. With respect to the residents’ concerns about the process in the Plan of Management for managing parent parking behaviour, I have considered above that this process is appropriate. Therefore, none of the issues raised by the objectors warrants refusal of the application.

Conditions of consent

Following the conclusion of the hearing, draft conditions of consent were provided to me by the parties, together with the final proposed Plan of Management (with changes made that were agreed to by the parties), and a new floor plan in drawing 101/8 to make some corrections to the earlier floor plan.
The proposed conditions of consent contain some tracked changes added by Tahany. The reasons for those changes were provided in an email dated 11 October 2018, and state:

“1. Condition A2 ‘approved plan table’ essential agreed. We have allowed for the option of acceptance of plan DA101/8 which is attached above or the prior version of this plan. The revision 8 plan does not change anything of substance and simply amends and corrects annotations on the plan. The Respondent has been provided with the revision 8 plan and allowed for it in its version of condition A2.
2. The Applicants has amended condition A3 ‘Acoustic Testing’ to refer to conditions I 3.1 and I 3.2 and made amendments to paragraph 2 to this condition.
3. Condition A5.7 has been deleted as the door is locked when SOPA2 is not in use.
4. Condition C 18 – the Applicant has deleted the finished floor RL as it sets the floor level to the millimetre which is almost impossible to comply with. The applicant is happy to comply with all plans and conditions of consent inclusive of the provision of a floor to ceiling height of 2.4 metres for the Simulated Outdoor Play Area.
5. Condition I 3.9 – The windows regulated by this condition will be closed when the Simulated Play Area is in use.
6. Condition I 8 – Amended to refer to latest Plan of Management version and date.”

I consider that each condition referred to in points 1-3 and 5-6 above should be amended in accordance with what was in the tracked changes made by Tahany, for the reasons expressed above. With respect to the condition referred to in point 4 above, I agree that the finished floor level can be deleted from condition C18, for the reason that it is already marked on the sections (DA-301/6) that form part of condition A2. In my view, it is sufficient to have it marked on the plans that form part of the conditions, which will allow the flexibility that is inherent in the construction certificate process, whilst also retaining the condition that the floor to ceiling height be 2.4m.

Outcome of the appeal

For the reasons expressed above, none of the contentions raised by the Council warrant refusal of the development application. The proposed development is permissible on the site, and I consider that it has been designed in a way to appropriately accommodate the requirements of the CCPG as well as to respond to the site’s constraints and the applicable controls under the WDCP 2015. Given that the other planning controls of the WLEP 2014 are met, there is no basis to refuse the development application and it is granted accordingly subject to conditions of consent.
The Court orders that:

Leave is granted to the applicant to amend development application DA 03/2017 for a child care centre at 98 Manning Road, Double Bay, in accordance with the amended plans and documents referred to in condition A2 of Annexure A.

The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

The appeal is upheld.

Development consent is granted to DA 03/2017 for the change of use of the existing dwelling to a child care centre for 30 children at 98 Manning Road, Double Bay, and for alterations and additions to the existing building to accommodate the proposed use, subject to the conditions of development consent in Annexure A.

Exhibits 1, 2, 3, D and MFI1 and MFI2 are returned.

________________

Commissioner Gray

Annexure A (C)

**********

Decision last updated: 15 January 2019

Medium Neutral Citation:	Tahany Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1008
Hearing dates:	24-26 September 2018
Date of orders:	15 January 2019
Decision date:	15 January 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) Leave is granted to the applicant to amend development application DA 03/2017 for a child care centre at 98 Manning Road, Double Bay, in accordance with the amended plans and documents referred to in condition A2 of Annexure A. (2) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3) The appeal is upheld. (4) Development consent is granted to DA 03/2017 for the change of use of the existing dwelling to a child care centre for 30 children at 98 Manning Road, Double Bay, and for alterations and additions to the existing building to accommodate the proposed use, subject to the conditions of development consent in Annexure A. (5) Exhibits 1, 2, 3, D and MFI1 and MFI2 are returned.
Catchwords:	APPEAL – development application – child care centre – whether unreasonable impact on traffic or parking – whether simulated outdoor play area acceptable – whether outdoor play areas adequate – restraints in utilising play areas in order to control acoustic impact - whether plan of management can be complied with
Legislation Cited:	Education and Care Services National Regulations Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 Woollahra Local Environmental Plan 2014
Cases Cited:	Kamrani Holdings Pty Ltd & Anor v Willoughby City Council [2016] NSWLEC 1146 Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2014] NSWLEC 1218
Texts Cited:	Austroads Guide to Traffic Management Child Care Planning Guideline National Construction Code National Quality Framework Assessment Checklist RMS Guide to Traffic Generating Developments 2002 Woollahra Development Control Plan 2015 Woollahra Muncipal Council Traffic Management Strategy (Issue C)
Category:	Principal judgment
Parties:	Tahany Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) Solicitors: Conomos Legal (Applicant) M Hawley, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/240032
Publication restriction:	No