Visy International Pty Ltd v Hornsby Shire Council

[2019] NSWLEC 1404

Land and Environment Court

New South Wales

Medium Neutral Citation:	Visy International Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1404
Hearing dates:	26 – 27 August 2019
Date of orders:	30 August 2019
Decision date:	30 August 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1)   The appeal is dismissed. (2)   Development Application No. 134/2018 for demolition of existing structures and construction of a two storey building over basement parking for use as a childcare centre for 60 children is refused. (3)   The exhibits, other than Exhibits 1, A and D, are returned.
Catchwords:	DEVELOPMENT APPLICATION – child care facility for 60 children – impact of the proposed development on the setting of heritage items adjoining and in the vicinity of the site
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hornsby Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
Texts Cited:	Hornsby Development Control Plan 2013 Child Care Planning Guideline August 2017
Category:	Principal judgment
Parties:	Visy International Pty Ltd (Applicant) Hornsby Shire Council (Respondent)
Representation:	Counsel: S Berveling (Applicant) M Cottom (Solicitor) (Respondent)   Solicitors: Conomos Legal (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2018/260731
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 134/2018 for demolition of existing structures and construction of a two storey building over basement parking for use as a childcare centre for 60 children (the proposal) at 18 Warne Street, Pennant Hills (the site) by Hornsby Shire Council (the Council).

2. The appeal was subject to conciliation on 21 January 2019, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 23 August 2019 for the applicant to amend the application by relying on an amended proposal (Exs A, B and C).

Issues

4. The Council presses the following contentions (Ex 1):

The proposal’s impact on the setting and the heritage significance of the adjoining and nearby heritage items:

“1. Character, streetscape, built-form and public domain

The proposed development is not compatible with the character of the area.

The proposed development fails to comply with Section 3.2 of the Child Care Planning Guideline 2017 (CCPG) and Part 7 of the Hornsby Development Control Plan 2013 (HDCP).

The CCPG provides guidelines in order to ensure child care facilities are compatible with surrounding land uses. The HDCP provides controls to limit the scale of development to ensure a child care centre is compatible with the character of the area. The intent of the HDCP numerical controls are to ensure that child care facilities in predominantly residential areas are of a scale comparable to neighbouring development.

Particulars:

a) The proposed two storey element of the child care centre would not be consistent with surrounding dwellings on Warne Street which are predominately single storey in height and the first floor play area would not be in keeping with the residential area and is out of character for the low density area, The building height is not consistent with other buildings in the street which are predominately single storey and does not respond to the scale and character of the street.

b) The floor area is excessive for this particular sized site and out of character for the area. The total floor area and scale of the building is significantly over Council’s floor area controls for a residential dwelling which for a site of this size which should be 380m2. The total floor area including the 1.5m high acoustic barrier component of the first floor would be 631m2 which is a significant departure from surrounding development.

c) The amended proposal does not complement the bulk, form, scale or size of the nearby heritage items and overall retains a dominant bulk and scale in context of the surrounding modest scale, single storey, predominantly early 19th century residential development.

f) The proposal is out of character with the existing front garden settings of nearby properties and does not complement the visual backdrop and setting of the heritage items in the vicinity.

g) The proposal fails to satisfy Objective C15 of the CCPG as it does not respond to the adjacent built form and neighbourhood character, in particular the 1m boundary setback to the rear property of the elevated play area, height of the elevated play area, roofline that extends to 4m from the rear boundary and 1m to side boundaries and large building mass that exceeds that of the adjoining low density development to the north and west.

h) The bulk of the building is exacerbated by the extension of the roofline towards the western boundary at the front of the property.

2. Building Orientation, Envelope and Design

The design and orientation of the child care centre results in unacceptable noise, solar, privacy, visual and amenity impacts to adjoining properties that could be avoided with a better design.

The proposed development fails to comply with Section 3.3 Building orientation, envelope and design of the CCPG.

Particulars:

i) The characteristics of the site which incorporates a slope up to 2m is not suitable for the scale and intensity of the development proposed having regard to the number of shared boundaries with residential properties and required height of acoustic treatments to property boundaries.

j) The built-form at the rear elevation to No. 16 is of an unacceptable scale, particularly having regard to the proposed ground floor play area being constructed approximately 2m above natural ground level, setback 1m from the boundary and the sloping topography of the site.

3. Setbacks

The proposed development fails to comply with the prescribed measures of Part 7.1.3 setbacks of the HDCP in regards to side boundary setbacks.

Particulars

b) The rear setback of the first floor play area fails to comply with the minimum 8m rear boundary setback requirement and is not compatible with adjacent development.

e) The roof at the rear extends to 4m from the rear boundary and does not comply with the 8m rear boundary setback. This portion of the building is elevated more than 4.5m high above the existing level and is measured as 2 storeys.

4. Heritage Impacts and streetscape character

The proposed child care centre does not comply with part 9.4 Development in the Vicinity of Heritage of the Hornsby Development Control Plan 2013 and Section 3.2 Local character, streetscape and the public domain interface of the Child Care Guideline 2017.

Particulars

a) The amended proposal does not complement the bulk, form, scale or size of the nearby heritage items and existing properties located in Warne Street.

b) The proposal fails to provide a generous garden setting to complement the visual backdrop and setting of the heritage items in the vicinity.

c) It has not been properly demonstrated that the health of trees No.12, 15 and 16 located within the property boundary of the adjoining heritage item will not be significantly impacted as a result of construction of the child care centre.

d) The loss of 2 street trees and limited deep soil area within the front setback would not allow a landscape setting that blends the child care centre into the surrounding streetscape and wider context.

e) The proposed development does not contribute to the local area as it is not in character with the locality and existing streetscape which is a predominately modest scale of housing from the early 19th century residential development.

f) The proposal will have a detrimental impact upon the heritage item next door at No. 20 Warne Street.

g) The landscape plan indicates front fencing to accommodate the ground floor outdoor play area, no details of the fencing was provided. Further, acoustic fencing adjoining the common boundary with No.20 Warne Street is not located behind the building line and impacts the setting and character of the heritage item.

The proposal’s impact on the acoustic privacy of neighbouring properties:

2. Building Orientation, Envelope and Design

The design and orientation of the child care centre results in unacceptable noise, solar, privacy, visual and amenity impacts to adjoining properties that could be avoided with a better design.

The proposed development fails to comply with Section 3.3 Building orientation, envelope and design of the CCPG.

Particulars:

a) The elevated ground floor outdoor play space towards the rear boundary which is elevated up to 2m high and includes a 2.7m high solid acoustic wall, setback 1m from the boundary would create detrimental visual and amenity impacts to the adjoining rear property at No.16 Warne Street which could be avoided.

b) The play area located along the northern rear boundary creates detrimental acoustic and amenity impacts to No.16 Warne Street and does not comply with Objective C11 of the Child Care Guideline 2017 which prescribes that windows and doors should be oriented away from private open space, living rooms and bedrooms in adjoining properties, play and outdoor play areas should be located away from residential dwelling and other sensitive uses.

c) The first floor play area towards the rear boundary creates visual and privacy impacts to adjoining properties as it results in a 1.5m high acoustic fence, combined with shading devices, is out of character with adjoining properties.

i) The characteristics of the site which incorporates a slope up to 2m is not suitable for the scale and intensity of the development proposed having regard to the number of shared boundaries with residential properties and required height of acoustic treatments to property boundaries.

k) The proposal does not aim to minimise cut and fill, avoid overshadowing, locate outdoor play areas away from residential dwellings, place play equipment away from common boundaries to ensure the child care centre reduces privacy, noise and overlooking to neighbours.

3. Setbacks

The proposed development fails to comply with the prescribed measures of Part 7.1.3 setbacks of the HDCP in regards to side boundary setbacks.

Particulars:

a) The elevated ground floor play space fails to comply with the minimum 3m rear boundary setback requirement. The floor level of the play space will be located at up to 2m above the existing ground level and includes a 2.7m high acoustic barrier. This non-compliance will result in detrimental visual, privacy and amenity impacts to the rear property at No.16 Warne Street.

5. Visual and acoustic privacy

The proposal would create visual and acoustic privacy impacts to adjoining properties, being non-compliant with Section 3.5 Visual and Acoustic Privacy and 3.6 Noise and air pollution of the Child Care Guideline 2017.

Particulars

a) The proposed development fails to comply with Objective C11 of the CCPG which prescribes that outdoor play areas should be located away from residential dwellings and other sensitive uses and Objective C12 which prescribes that setbacks should allow for adequate privacy for neighbours and children at the proposed child care facility.

b) The 2.7m high acoustic barrier proposed along the rear boundary, setback 1m from the boundary as recommended in the acoustic report, combined with the 2m high elevated play area (total of 4.7m high) would create detrimental visual, amenity and solar access impacts to the private open space and living room window to the rear property No.16 Warne Street.

c) The acoustic report recommends excessive acoustic barriers to limit noise impacts to adjoining properties and contribute to a detrimental visual, amenity and solar impact to adjoining properties and the streetscape.

d) The child care centre is too large for the site and results in excessive heights of noise barriers to common boundaries, a reduction in the amount of children and redesign of the childcare centre would reduce the height of the acoustic barriers.

e)The 2.1m high acoustic fence required for the ground floor play area protrudes into the front setback and results in detrimental visual and acoustic impacts to the streetscape and adjoining properties.

h) The play area at the upper level is unacceptable in a low density residential context, as it will have a significant adverse acoustic impact upon adjoining dwellings and is out of character for the local area.

i) In order to achieve compliance for outdoor play on the first floor level and a 1.5m high acoustic wall, the acoustic report recommends 50% of children to be located outside at any one time which is considered impractical and not a viable management option. Further no operational management plan was submitted with the amended plans to enforce such a requirement.

j) The synthetic covered mounds on both the ground and first floor play area are proposed at 500mm high which would impact the acoustic assessment and height of fence proposed which has not been factored in.

k) Section B-B is not adequately drawn as it does not indicate the full extent of the property and does not show the impact the proposal on the rear neighbours land especially regarding the extent of the roof at the rear, retaining walls and acoustic wall. It is assumed it matches what is shown on the driveway section for the outdoor areas.

i) The architectural plans have not clearly plotted the acoustic walls on the plans noting that in some areas the acoustic fence exceeds the height of the roof.”

5. The Council submitted that the remaining contentions particularised in the Council’s Statement of Facts and Contentions (Ex 1) were adequately addressed by the amended proposal.

The site and its context

6. The site is on the north-eastern side of Warne Street. The site has an area of 818sqm a frontage of 22.25m to Warne Street and is legally described as Lot A DP 327992. The site has a fall of 3m from the south-western front boundary to the north-eastern rear boundary.

7. There is a battle-axe property containing a single storey dwelling to the rear of the site, accessed via an access handle to the east of the site.

8. According to the Council’s Statement of Facts and Contentions: (Ex 1)

“Warne Street is characterised by late 19th century and early 20th century housing, constructed between c1890 and c1940. Whilst Warne Street does not form part of a heritage conservation area, it is aesthetically distinctive with a large collection of intact Federation and Inter-War dwellings. This includes three heritage listed properties at Nos. 20 and 24 Warne Street and 34 Ramsay Street.”

The proposal

9. The proposal is for a two storey child care facility for 60 children over basement parking and includes the following:

• Basement: driveway access from Warne Street, bin storage, bike storage and tandem car parking for 15 cars, including 6 visitors;

• Ground floor: reception area and indoor play area for 12 0-2 year olds and 27 3-5 year olds, outdoor play area for 39 children;

• First floor: indoor play area for 21 2-3 year olds and an outdoor play area for 21 children.

10. The proposal includes acoustic barriers 1.8m with a 300mm inward splay on both side boundaries to the extent of the front setback; 2.1m with a 600mm inward splay adjacent to the rear boundary set in 1m; and 1.5m around the outdoor play area at the rear of the first floor.

11. The proposal consists of masonry walls and tiled roof with multi-pane window joinery.

Planning framework

12. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the SEPP) applies to the application. The consent authority must take into consideration any applicable provision of the Child Care Planning Guideline in relation to the proposal, at cl 23.

13. The proposal complies with the non-discretionary development standards at cl 25, as follows, and as a consequence, the consent authority is prevented from requiring a more onerous standard for these matters:

“(a) location—the development may be located at any distance from an existing or proposed early education and care facility,

(b) indoor or outdoor space

(i) for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies—the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or

(ii) for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies—the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause,

(c) site area and site dimensions—the development may be located on a site of any size and have any length of street frontage or any allotment depth,

(d) colour of building materials or shade structures—the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area.”

14. A provision of a development control plan that specifies a requirement, standard or control in relation to the matters listed at cl 26 of the SEPP does not apply to development for the purpose of a child care facility.

15. The site is zoned R2 Low Density Residential pursuant to Hornsby Local Environmental Plan 2013 (LEP 2013) (Land Zoning Map - Sheet LZN_010 of LEP 2013) and ‘Centre-based child care facilities’ are a nominate use permitted with consent in the land use table. The objectives of the R2 zone, to which regard must be had, are:

• 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.

16. The height of buildings development standard for the site is 8.5m (Height of Buildings Map - Sheet HOB_010 of LEP 2013). There is no floor space ratio development standard for the site.

17. The site adjoins a heritage item at 20 Warne Street (Item 680 identified as “house”, Schedule 5, LEP 2013) and is in the vicinity of a heritage item at 24 Warne Street (Item 681 identified as “house”, Schedule 5, LEP 2013). 20 Warne Street is an example of an inter-war period bungalow, with a hipped slate roof, exposed rafters, verandah and a sandstone basecourse. 24 Warne Street is an example of a weatherboard cottage with a slate hipped roof in traditional Georgian form.

18. Hornsby Development Control Plan 2013 (DCP 2013) includes, in Part 1, prescriptive measure in relation to noise and vibration at 1C.2.5, including the following for noise generating development:

“…

f. Noise generating developments should be accompanied by an acoustic report that demonstrates the development is sited and designed to:

• minimise the effect of noise and vibration on surrounding sensitive land uses, and

• comply with relevant State Government and Council guidelines.

g. The location and design of noise generating activities, such as loading and unloading areas, garbage collection areas, driveways, parking areas, active recreation areas, air conditioning or mechanical plants, should be sited away from adjacent sensitive land uses and/or screened by walls or other acoustic treatments…”

19. DCP 2013 includes, in Part 7, the following desired outcomes for scale of developments for community uses at 7.1.2:

“Desired Outcomes

a. Development with a height, scale and intensity that is compatible with the character of the area.

b. Child care centres that incorporate best practice design and address the local demand for child care places…”

20. DCP 2013 includes, in Part 9 ‘Heritage’, the following desired outcomes and prescriptive measures for development in the vicinity of heritage items:

“9.4.1 Development in the Vicinity of Heritage Items and Heritage Conservation Areas

Desired Outcomes

a. New work that is sympathetic to the heritage significance of nearby heritage items, or adjoining heritage conservation area, and their settings.

Prescriptive Measures

Heritage Items

a. Design and siting of new work should complement the form, orientation, scale and style of the heritage item.

b. Adequate space should be provided around the heritage item to allow for its interpretation.

c. Development should maintain significant or historic public domain views to and from the heritage item.

d. Original or significant landscape features that are associated with the heritage item and which contribute to its setting should be retained.

e. For rural heritage items, the scale of new work is not to overwhelm the heritage item taking into consideration the matters within the Rural Heritage Items element.

Notes:

These controls apply to land that is adjoining, or across the road from a heritage item or a heritage conservation area.

The setting of a heritage item or heritage conservation area often extends beyond current property boundaries, and can be influenced by historic subdivision patterns, topography, vegetation, and views to and from the heritage item or heritage conservation area.

It is important to understand the relationship of a heritage item, or heritage conservation area, to adjoining land. Relevant factors include:

• Is the site within historic property boundaries of the heritage item;

• Could development on the site affect views to or from the heritage item or heritage conservation area;

• Could development on the site change the visual backdrop of the heritage item or heritage conservation area;

• Is the heritage item or heritage conservation area physically separated from the development site by a road, gully or escarpment, creek or similar; and

• Are there any trees or remnant features on the development site that may have had an association with the heritage item.”

21. The Child Care Planning Guideline includes, at section 3.2, objectives for proposed development to ensure that the child care facility is compatible with the local character and surrounding streetscape. New development should appropriately consider surrounding identified heritage items and local heritage provisions may apply to the proposal.

22. The Child Care Planning Guideline includes, at section 3.5, objectives to minimise impacts on the acoustic privacy of neighbouring residential developments, including that a proposed development provide an acoustic fence along any boundary where the adjoining property contains a residential use.

Public submissions

23. Seven resident objectors and an operator of a nearby childcare provided evidence at the commencement of the hearing on-site. Their concerns can be summarised as:

• The proposal will result in an additional car journeys up and down Warne Street because Warne Street is a dead-end and cars must turn at the bottom of the street and come back along the street. The proposal will result in cars parking and double parking in Warne Street.

• The proposal does not provide a safe drop off and pick up arrangement for children attending the childcare facility.

• The basement car park is contrary to the style of development in the street and will create traffic issues.

• The proposal will result in unacceptable acoustic and visual privacy impacts on adjoining properties.

• The bulk and scale of the proposal is unacceptable and in excess of the size of dwellings along Warne Street.

• The land falls to the rear of the site and so the ground level and first floor level of the proposal will be raised well above the floor level of the dwelling on the battle-axe property behind the site. The bulk and scale of the building as well as the height of the acoustic barriers will block the light and breeze to the existing dwelling to the rear of the proposal.

• The shadow diagrams submitted as part of the application are incorrect.

• The proposal will threaten the mature trees on the adjoining property to the west. Excavation of the proposed basement will result in the adjoining heritage item being damaged.

Expert evidence

24. The applicant relied on the expert evidence of Ms Ruth Daniell (heritage), Mr Desmond Raymond (acoustics), Mr Scott Lockray (planning), Ms Rebecca Surian (landscaping), Mr Kyle Hill (arboriculture) and Ms Nermein Loka (civil engineering).

25. The Council relied on the expert evidence of Mr John Oultram (heritage), Mr Steven Cooper (acoustics), Mr Matthew Miles (planning), Mr David De-Fina (landscaping), Mr Gary Palmer (arboriculture) and Mr Andrew Lam (civil engineering).

26. The pairs of experts prepared joint reports which were admitted into evidence. Only the heritage and acoustic experts were required to give oral evidence.

Consideration

Impact of the proposal on the heritage significance of the heritage items in the vicinity of the site

27. Firstly, I note that cl 5.10(4) of LEP 2013 does not mandate consideration of the effect of a development on the heritage significance of a heritage item in the vicinity of the site, but is limited to mandating consideration of the effect of development on the heritage significance of an item or a heritage conservation area when consent is to be granted in respect of a heritage item or a heritage conservation area.

28. In regard to the first contention identified by the parties as the “heritage contention”, the Council relies on the prescriptive measures for heritage items in section 9.4.1 of Part 9 of DCP 2013. The applicant submits that the controls in Part 9 of DCP 2013 are overridden by the terms of cl 26 of the SEPP. I do not accept this submission.

29. Clause 26 of the SEPP provides that a provision of a development control plan that specifies a requirement, standard or control in relation to, at (1)(d)(ii), the matters for consideration set out in Part 3 of the Child Care Planning Guideline (“the Guideline”), does not apply to development for the purpose of a centre-based child care facility. The matters for consideration in Part 3 of the Guideline include ‘Local character, streetscape and the public domain interface’, at section 3.2. Section 3.2 starts with a statement expressly articulating that new development should appropriately consider surrounding identified heritage items. Item C15 under section 3.2 includes, “considers heritage within the local neighbourhood including identified heritage items” to achieve the objective, “To ensure that the built form, articulation and scale of development relates to its context and buildings are well designed to contribute to an area’s character”.

30. I do not accept that the prescriptive measures for heritage items in section 9.4.1 of Part 9 of DCP 2013 specify a requirement or fix a standard in relation to the matters for consideration in section 3.2 of the Guideline. The list of prescriptive measures for heritage items in section 9.4.1 of DCP 2013 are described as ‘controls’ in the notes to the section, but they are more appropriately characterised as factors to be considered when determining the siting and the building envelope of new development in the vicinity of a heritage item. The prescriptive measures for heritage items in section 9.4.1 of Part 9 of DCP 2013 are consistent with the requirement in C15 of the Guideline to consider heritage within the local neighbourhood including identified heritage items. For this reason, I am satisfied that the prescriptive measures in section 9.4.1 of Part 9 of DCP 2013 apply to the proposal.

31. I prefer and adopt Mr Oultram’s evidence as follows:

• The proposal is contrary to the established character in the locality.

• Little consideration has been given to the impact of the proposal on the adjoining heritage item. The proposal relies on the generous side setback of the dwelling on the adjoining site as a curtilage, rather than mitigating its impact on its own site.

• The side fence between the site and the heritage item requires a splayed top giving an overall height of [nearly] 2100mm that will be clearly visible from the garden of the heritage item.

• The proposal is considerably larger in site coverage and is very atypical of the period development in the street. The proposal has a wide two storey frontage to the street that is not in keeping with the general pattern of the street where the majority of houses are modest, single storey dwellings.

• The excavated driveway of the proposal is atypical in the context and will not look like a double garage door to a residential dwelling, because the fall of the driveway commences at the front boundary (Ex A, Dwg 08 Driveway Section) and so the garage entry door will look like the entry to a basement carpark.

• The rooftop play area at the rear of the first floor is particularly uncharacteristic in the context and the 1.5m high acoustic barrier enclosing the rooftop play area will contribute to the significant bulk of the proposal when viewed from surrounding properties.

32. I accept and agree with Mr Oultram’s oral evidence that a two storey form on the site would be acceptable. The south-western street elevation of the proposal seeks to mimic a large two storey house, yet the bulk and scale of the proposal significantly exceeds that of a dwelling and the styling of the proposal as a house is lost on all the other elevations. The proposal is not commensurate with a two storey dwelling because the building envelope of the proposal is significantly greater in volume, which is evidenced by comparing the proposal to the DCP 2013 controls for Dwelling Houses at section 3.1.1. As a child care facility is a permissible use in the R2 zone, there is no reason to attempt to make it look like a house. A well-designed child care facility that responds appropriately to the opportunities and constraints of its site and context is compatible with residential development.

33. There has been no attempt in the design of the proposal to respond sensitively to the site’s constraints, such as the fall of the site to the rear and the form and style of the adjoining heritage item. The design of the proposal lacks any finesse. The undercroft area on the north-western side of the ground floor level fails to relieve the bulk of the building envelope and therefore does not manage to respond to the neighbouring heritage item. The significant bulk of the proposal is exacerbated by the fall of the land to the rear of the site, as the ground floor level of the proposal continues across the site at the same level, so that the ground floor level is raised above existing ground level at the rear. This bulk is further exacerbated by the 1.5m height of the acoustic barrier around the first floor outdoor play area atop the proposal at the rear and the unarticulated form of the hipped roof. The south-eastern elevation of the proposal is unarticulated. The significantly oversized eaves to some parts of the roof form, rather than stepping the gutter line, contribute to the excessive bulk and the unarticulated form of the proposal.

34. The proposal has not achieved a scale that is compatible with the character of the area and the form of the proposal does not appropriately respond to the added constraint of this site’s location adjacent to an inter-war dwelling identified as a heritage item. The lack of modulation and meaningful articulation of the building envelope results in a form that would dominate the streetscape and detract from the setting of the heritage items in the vicinity of the site. The outdoor play area for 21 children located on large terrace on the first floor and enclosed by 1.5m high acoustic barriers is an uncharacteristic form that significantly adds to the bulk and scale of the proposal.

Conclusion

35. I am not satisfied that the proposal achieves the objective for C15 in Part 3 of the Child Care Planning Guideline, because the scale and form of the proposal does not relate to its context and would not contribute to the area’s character. I am not satisfied that the proposal achieves the desired outcome for the scale of developments for community uses, at Part 7 of DCP 2013 or the desired outcome for development in the vicinity of a heritage item, at Part 9 of DCP 2013, because the bulk and scale of the proposal does not complement or respond to the form and scale of the adjoining heritage item.

36. On the basis of all of the evidence before me, I am satisfied that the Council’s contention regarding the detrimental impact of the proposal on the setting of the heritage items in the vicinity of the site is made out.

37. As my finding regarding the impact of the proposal on the setting of the heritage items in the vicinity of the site is determinative, it is not necessary to determine the Council’s contention regarding acoustic privacy impacts.

Orders

38. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 134/2018 for demolition of existing structures and construction of a two storey building over basement parking for use as a childcare centre for 60 children is refused.

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

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 30 August 2019