Child Care Centre Consent Granted with Conditions

The Court granted consent for a child care centre, subject to conditions addressing heritage, noise, and traffic impacts, in accordance with the Environmental Planning and Assessment Act 1979 and the Child Care Planning Guideline.

Land and [ADDRESS] South Wales

Medium Neutral Citation: [COMPANY] v [ADDRESS] [2021] NSWLEC 1535 Hearing dates: 9-11 August 2021 Date of orders: 16 September 2021 Decision date: 16 September 2021 Jurisdiction: Class 1 Before: [NAME] C Decision: See directions at [145] Catchwords: DEVELOPMENT APPLICATION – centre based child care – heritage conservation area – item of local heritage significance – acoustic amenity of neighbouring properties – the suitability of the site for the development Legislation Cited: Education and Care Services National Regulations (2011 SI 653), reg 110 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl [ADDRESS] Environmental Plan 2012, cll 1.2, 2.3, 5.1, 5.10, 6.2, 6.3, Sch 5 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 3, 7, 22, 23, 25, 26 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 Cases Cited: [NAME] Pty Limited v Hurstville City Council [2005] NSWLEC 315 Texts Cited: Child Care Planning Guideline, NSW Department of Planning and Environment, August 2017 COVID-19 Pandemic Arrangements Policy, Land and [ADDRESS] of NSW, April 2021 Environmental Planning Authority's Road Noise Policy, March 2011 Gladesville Town [NAME]'s Hill Community Participation Plan [ADDRESS] Development Control Plan 2013 Category: Principal judgment Parties: [COMPANY] (Applicant) [NAME]'s Hill Council (Respondent) Representation: Counsel: [redacted] [NAME] (Respondent)

Solicitors: [redacted] [NAME] (Respondent) File Number(s): 20/342950 Publication restriction: No

Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 ([NAME] Act) following the deemed refusal by [ADDRESS] (the Respondent) of Development Application 2020-1079 seeking consent for demolition of the existing structures ancillary to a new 2 storey child care centre for 110 children above a basement car parking level with associated landscaping, fences, paving and tree removal at 2 [NAME], Gladesville.

2. At the commencement of the hearing, the Applicant sought to amend the application before the Court. I note here that the Respondent, as the relevant consent authority agreed, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 ([NAME]), to the Applicant amending the development application by the following amended plans and documents:

1. Amended architecture plans marked Exhibit C 2. Letter from [NAME] dated 5 July 2021 marked Exhibit D 3. Letter from [NAME] dated 4 August 2021 marked Exhibit E 4. Amended landscape plans marked Exhibit F 5. Structural Adequacy Certificate marked Exhibit H.

1. I directed the Applicant to lodge the application so amended on the [NAME] ([NAME]) in accordance with cl 55(1) of the [NAME], and to file the amended application with the Court.

The site and its context 1. Consistent with the Court's Pandemic Arrangements Policy, the onsite view was vacated and the Court was provided by the Applicant with a bundle of photographs of the site and a short video for the purposes of understanding the particular context of the site and its environs (Exhibit J).

2. The site details and its context are set out by the Respondent in the Amended Statement of Facts and Contentions (Exhibit 1).

3. The site is at 2 [NAME], Gladesville, otherwise legally described as Lot 9, DP 16155.

4. The site is a parallelogram shape located on the corner of [NAME] and [NAME] to the east of the commercial strip fronting [ADDRESS]. It has a frontage to [NAME] of 34.9m and 51.37m to [NAME], and a total site area of 1650m2.

5. The site is currently occupied by an existing 2-storey sandstone building known as "Dunham" ([NAME]), which is located towards the rear of the site when viewed from [NAME].

6. A tennis court is located to the south of the site, at the intersection of [NAME] and [NAME] and is bounded by what the Applicant describes as tiered retaining walls behind which is a landscape/garden area including a row of palm trees on its eastern side and a masonry wall fronting [NAME], some of which is vine-covered.

7. The property is listed for its local heritage significance at Schedule 5 of the [ADDRESS] Environmental Plan 2012 (HHLEP).

8. The site is also located within the B4 Mixed Use zone in accordance with the HHLEP, in which Centre-based child care facilities are permitted with consent and wherein the objectives of development in the zone are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To ensure that new buildings provide an appropriate transition between the business zones and surrounding residential localities. • To maximise levels of pedestrian and business activity along street frontages.

The issues 1. The principally contested issues identified by the Respondent in this matter may be summarised as follows: * The proposed development is beyond the capacity of the site, and so the site is not suitable for the development. * The proposed development would have a major detrimental impact on the Heritage item known as [NAME], its setting and the Gladesville Village Conservation Area ([NAME]). * The proposal would impose adverse noise amenity impacts on surrounding properties. * The proposed development includes inadequate landscaping and building setbacks.

Public submissions 1. A number of public submissions were received in response to notification undertaken by the Respondent in accordance with the [ADDRESS] Participation Plan 2019. These submissions are contained behind Tabs 14-55 of Exhibit 2, and in Exhibit 7, and are summarised as follows: * Scale and intensity of development * Visual impact of incongruous design * Proposal is out of character with the existing building and village location * Heritage impacts generally and potential damage to the item and obscuring it from view * Lack of onsite parking and on street parking * Unsuitable site having regard to street layout and narrow design * Impacts on the use of surrounding driveways * Traffic management and safety * Traffic generation and timing of peak traffic flows * Pedestrian safety including elderly pedestrians * No demonstrated need/glut of Childcare facilities in the area * Impacts on amenity including noise from construction, operation and traffic * Insufficient neighbour notification.

1. Given the expert planning and acoustic evidence in this matter, I particularly note the submission behind Tab 49 from the neighbour at 4 [NAME].

2. I also note a number of the written submissions urge the Court to consider the consistency, or otherwise, of the proposed development with the Gladesville Town Centre Masterplan ([NAME]) that is currently on exhibition.

Expert evidence 1. As the contentions relate primarily to heritage, acoustics, traffic and planning, the Court was assisted by [NAME] in those disciplines, as follows: * The Applicant was assisted by the following [NAME]: [NAME] (planning), [NAME] (heritage), [NAME] (Acoustics) and [NAME] (traffic). * The Respondent was assisted by the following [NAME]: [NAME] (planning), [NAME] (heritage), [NAME] (acoustics) and [NAME] (traffic).

Planning framework 1. As the proposal is for centre-based child care development, the provisions of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 ([NAME]) apply.

2. A centre-based child care facility is defined at cl 5 of the [NAME] in the following terms: centre-based child care facility means— (a) a building or place used for the education and care of children that provides any one or more of the following— (i) long day care, (ii) occasional child care, (iii) out-of-school-hours care (including vacation care), (iv) preschool care, or … 1. The aims of the [NAME], at cl 3, are in the following terms: (a) improving regulatory certainty and efficiency through a consistent planning regime for educational establishments and early education and care facilities, and (b) simplifying and standardising planning approval pathways for educational establishments and early education and care facilities (including identifying certain development of minimal environmental impact as exempt development), and (c) establishing consistent State-wide assessment requirements and design considerations for educational establishments and early education and care facilities to improve the quality of infrastructure delivered and to minimise impacts on surrounding areas, and (d) allowing for the efficient development, redevelopment or use of surplus government-owned land (including providing for consultation with communities regarding educational establishments in their local area), and (e) providing for consultation with relevant public authorities about certain development during the assessment process or prior to development commencing, and (f) aligning the NSW planning framework with the National Quality Framework that regulates early education and care services, and (g) ensuring that proponents of new developments or modified premises meet the applicable requirements of the National Quality Framework for early education and care services, and of the corresponding regime for State regulated education and care services, as part of the planning approval and development process, and (h) encouraging proponents of new developments or modified premises and consent authorities to facilitate the joint and shared use of the facilities of educational establishments with the community through appropriate design.

1. Clause 22 of the [NAME] applies where the floor area of a child facility, or outdoor space, do not comply with unencumbered space requirements. The parties agree the proposal does comply with those requirements.

2. Before determining an application for development for a child care facility, cl 23 of the [NAME] requires the consent authority, or the Court exercising the functions and discretions of the consent authority on appeal, to consider applicable provisions of the Child Care Planning Guideline (Child Care Guideline).

3. The Respondent identifies the applicable provisions as follows:

1. Section 3.1 Site selection and location "Objective: To ensure that appropriate zone considerations are assessed when selecting a site. C1 For proposed developments in or adjacent to a residential zone, consider: • the acoustic and privacy impacts of the proposed development on the residential properties … • traffic and parking impacts of the proposal on residential amenity …"

1. Section 3.2 Local character, streetscape and the public domain interface "Objective: To ensure that the child care facility is compatible with the local character and surrounding streetscape. C5 • contribute to the local area by being designed in character with the locality and existing streetscape … • recognise predominant streetscape qualities, such as building form, scale, materials and colours …"

1. Section 3.5 Visual and acoustic privacy "Objective: To minimise the impact of child care facilities on the acoustic privacy of neighbouring residential developments. C23 A new development, or development that includes alterations to more than 50 per cent of the existing floor area, and is located adjacent to residential accommodation should: • provide an acoustic fence along any boundary where the adjoining property contains a residential use. (An acoustic fence is one that is a solid, gap free fence). • ensure that [NAME] or equipment is screened by solid, gap free material and constructed to reduce noise levels e.g. acoustic fence, building, or enclosure."

1. Section 3.6 Noise and air pollution "Objective: To ensure that outside noise levels on the facility are minimised to acceptable levels. C25 Adopt design solutions to minimise the impacts of noise, such as: • creating physical separation between buildings and the noise source • orienting the facility perpendicular to the noise source and where possible buffered by other uses • using landscaping to reduce the perception of noise • limiting the number and size of openings facing noise sources • using double or acoustic glazing, acoustic louvres or enclosed balconies (wintergardens) • using materials with mass and/or sound insulation or absorption properties, such as solid balcony balustrades, external screens and soffits • locating cot rooms, sleeping areas and play areas away from external noise sources."

1. Section 4.4 provides design guidance to achieve consistency in terms of ventilation and natural light with reg 110 of the Education and Care Services National Regulations (2011 SI 653).

1. Clause 25 of the [NAME] contains non-discretionary development standards that, if complied with, prevent the consent authority, or the Court on appeal, from requiring more onerous standards for those matters. These standards are: (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. 1. [ADDRESS] Development Control Plan 2013 (HHDCP) contains certain provisions in respect of child care facilities to which cl 26 of the [NAME] is directed in the following terms: 26 Centre-based child care facility—development control plans (1) A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility— (a) operational or management plans or arrangements (including hours of operation), (b) demonstrated need or demand for child care services, (c) proximity of facility to other early education and care facilities, (d) any matter relating to development for the purpose of a centre-based child care facility contained in— (i) the design principles set out in Part 2 of the Child Care Planning Guideline, or (ii) the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates). (2) This clause applies regardless of when the development control plan was made.

1. As the site is identified in Schedule 5 of the HHLEP, and is located within [ADDRESS] Area No 3 – Gladesville Village ([NAME]), the provisions at cl 5.10 of the HHLEP relevantly apply: 5.10 Heritage conservation Note— Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5. (1) Objectives The objectives of this clause are as follows— (a) to conserve the environmental heritage of [ADDRESS], (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … (2) Requirement for consent Development consent is required for any of the following— (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)— (i) a heritage item, … (iii) a building, work, relic or tree within a heritage conservation area, … (e) erecting a building on land— (i) on which a heritage item is located or that is within a heritage conservation area, or … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

1. In considering the provisions of the HHLEP, the aims at cl 1.2 are relevantly: (a) to maintain and enhance the character and identity of established neighbourhoods in [ADDRESS] by regulating the use and development of land, … (c) to conserve Aboriginal heritage and European heritage that influence the character and identity of the municipality, …

Heritage 1. It is common ground between the heritage [NAME] that the historic dwelling located on the site was built in 1879, [NAME], and was originally part of an estate that adjoined what is now known as [ADDRESS], and continued to the north as far as [ADDRESS].

2. At the time, this constituted the setting of [NAME] that has subsequently been reduced through subdivision.

3. The agreed Statement of significance for the site, taken from the inventory sheet (Exhibit 11, p 114), is as follows: "The villa demonstrates a phase in the development of Gladesville which is associated with the popularity of the suburb in the mid and late nineteenth century as a place of residence for the city's professionals and merchants. The property is associated with the [NAME] family who resided at Gladesville for generations. [NAME] is noted for his association with Sydney's legal profession. The property demonstrates the architectural style and scale of late nineteenth century villa development. The villa is the only extant example of its type in the Gladesville Shops precinct."

1. According to [NAME], while the entrance to [NAME] has always been from the west, which now addresses [NAME], the arrangement of windows and balcony suggests the address to the south was also significant in its siting and design to benefit from views to Parramatta River.

2. Furthermore, the primary views to [NAME] from the public domain today are gained from [NAME], and so the proposal to remove unsympathetic elements such as the garage and tennis club house, and to reinstate gate access and original features such as the building entrance portico addressing [NAME] are of limited public benefit that does not compensate for the impact on the setting of [NAME] that will be obscured by the scale of the development to the south.

3. To understand the wider context and setting of the heritage item, [NAME] was granted leave to share her screen and, using [ADDRESS] view, led the Court along a path from the corner of [ADDRESS] and [ADDRESS], south along [ADDRESS] with a focus on the commercial buildings on the eastern side of [ADDRESS], and east in to [NAME] where views of the heritage item were shown.

4. At the Applicant's request, [NAME] also took the Court north up [NAME] to view the rear of the commercial premises fronting [ADDRESS].

5. In his oral evidence, [NAME] acknowledged that the current use includes private open space serving [NAME] and the current owners have a reasonable expectation of privacy from overlooking by the existing shop top housing above commercial premises addressing [NAME] to the rear, that may include future 5-storey high development in the vicinity, according to the [NAME] (Exhibit 9), and from the nearby residential flat building at 6 [NAME]. 6. [NAME] also agrees that [NAME] is not identified at cl 5.1 of the HHLEP for acquisition by the Council, and there are no plans shown in the [NAME] for a footpath to be provided in [NAME] by Council.

The tennis court 1. A significant feature of the current site is the tennis court located on the corner of [NAME] and [NAME]. The history, location and significance of the tennis court is the subject of some disagreement between the [NAME] in the joint expert report (Exhibit 4).

2. According to the Heritage Impact Statement prepared by [NAME] dated 14 June 2020, the first reference to the tennis court is said to be found in a 'Social News and Gossip' article contained in the Catholic Press of October 1903 (Exhibit A, Tab 12, p 9). However, the particular location of the tennis court on the site is not identified and it is [NAME]' view that as the site was larger at the time, it is unlikely to have been in its present location.

3. Relevantly, recommendations contained in the Inventory sheet refer to the tennis court in the following terms: "The property should be retained as a heritage item in the [NAME]'s Hill LEP and subject to the provisions of this planning instrument in regard to development controls. The tennis court should not be developed for non-recreational uses. Views of the house across the tennis court should not be obscured in new development. Major development proposals should be accompanied by a conservation management plan."

1. According to [NAME], the tennis court is not a cherished element of the setting, as understood in the Burra Charter (Exhibit 10), but instead it is the view that is made possible by the open area of the tennis court that is valuable, and it is this view that the proposed development seeks to open up from [NAME] and [NAME]. 2. [NAME] is also of the opinion that it is unrealistic to quarantine the tennis court from future development as it occupies such a large area of the site, and because it contributes to the obscuring of [NAME] when viewed from the public domain due to the higher fence enclosure that has usually been hung with shade cloth to provide privacy from overlooking from the premises on [NAME].

3. A view of the tennis court from [NAME] is shown at Figure 1, p 25 of the joint expert report, appears below:

1. I note here that the tennis court is bounded by a combination of solid and open 'cyclone' fencing. Solid fencing to the south of the tennis court facing [NAME] is shown on the survey to have top RL of 51.15. A higher 'lapped and capped' fence to [NAME] is measured to be 680mm above RL 51.15, and the underside of the top rail to the cyclone fence is measured at 2640mm above RL 51.15 (Exhibit Q).

Internal works to [NAME] are proposed 1. [NAME] is also concerned that internal works required to [NAME] to achieve compliance with contemporary fire and access has the potential to adversely impact the fabric of the stair in the main entrance through the addition of handrails, tactile indicators, lighting, signage and protection of original fireplaces and other elements.

2. The Applicant accepts proposed conditions of consent for work identified in the Schedule of Conservation Works (Ex B, Tab 8), the BCA Compliance Report (Ex B, Tab 11), and Fire Compliance Report (Ex B, Tab 12) to be overseen by a qualified heritage advisor or architect, and to be to the satisfaction of the Council.

Child care provisions are considered 1. The Applicant proposes a child care facility within the large southern setback that lies between [NAME] and [NAME].

2. Provisions relating to child care centres are contained in Part 4.2 of the HHDCP, including objectives and controls in respect of locational considerations at Part 4.2.3. The parties raise no conflict between the relevant provisions of the HHDCP and the [NAME] to which cl 26(1)(d) of the [NAME] would apply to set aside the effect of the HHDCP.

3. According to objectives at Part 4.2.5 of the HHDCP, the Built form and appearance of child care centres should: "(a) Ensure that new child care centres are compatible with the scale of existing buildings in the vicinity. (b) Enhance and complement the surrounding streetscape, as well as protecting conservation and heritage values, by development that displays a high visual quality. (c) Maintain and enhance external and distant views."

1. Controls at Part 4.2.5 of the HHDCP relevantly provide: "(b) The design and layout of child care centres must respond to character of the existing neighbourhood and streetscape: (i) For new buildings in a residential zone, single storey building forms are preferred. Two storey forms may be considered only in situations where no other option is available. (ii) Exterior materials and finishes, together with landscaping and fencing, should be consistent or compatible with general characteristics of the existing neighbourhood and streetscapes which surround the development site."

1. The parties agree that the issues underlying contention 3 in respect of design and visual character of the area are similar to those in respect of heritage by virtue of guidance in Part 2.2.4 of the HHDCP for desired streetscape character that relevantly provides: "(b) (i) In general, proposed developments should maintain and enhance the character of existing streetscapes which contribute to identity and history of the [ADDRESS]. (ii) Streetscape character of heritage conservation areas and heritage items should respond to requirements that are specified by the [ADDRESS] 2012 and Chapter 2.4 Heritage of this Plan. (iii) In areas with special qualities that contribute to identity of the [ADDRESS], the siting and form of proposed developments should demonstrate very high levels of compatibility with established patterns of gardens and buildings …" 1. [NAME] is of the view that the proposed built form fails in the following respects:

1. Insufficient setbacks to [NAME] that displaces meaningful opportunities for any landscaping to balance the built form.

2. Access to basement car parking is anomalous in [NAME] and does not adopt the character of low walls, and fencing with low plantings evident in the multi dwelling and single detached housing development in the street.

3. The proposed development does not relate to the pitched roof form residential character of the street, and so does not reflect the existing or desired character traits found in the HHDCP.

4. An enclosure containing lift and stairs to provide access to outdoor play areas is incompatible with the context of [NAME].

5. The structure interrupts views of [NAME], is inappropriately sited, and fails to provide an appropriate transition between business zones and residential areas, is a poor design outcome and draws attention to itself in the context of [NAME].

1. It is difficult to reconcile all of [NAME]'s evidence with the reality of [NAME] as represented in the photos at Exhibit J, and as it appeared in [NAME]'s [ADDRESS] view tour.

2. It is to [NAME] that the proposal provides a setback of 1m to permit a footpath in what the parties agree is a service lane, and where the [NAME] does not otherwise propose upgrade. The gate to which the footpath leads is not intended to provide regular access, there is no numerical guidance found in the HHDCP, and the existing setback is zero.

3. As to displacing opportunities for landscaping, the proposal seeks to remove unsympathetic built form to the north of the site, in favour of landscaping, trees, hedging, and roof top planting to virtually the whole of the eastern side of [NAME].

4. The primary setback of built form to [NAME] is shown on the architectural drawings as conforming to the front setback of the neighbouring property at 4 [NAME], with landscaping and low walls set forward of this, within the depth set by the neighbouring property, consistent with objective (c) of Part 4.4.5 of the HHDCP.

5. Next, while Part 2.2.3 of the HHDCP characterises the existing character by reference to pitched roofs, low walls and plantings, Part 2.2.3(d) of the HHDCP recognises that the age or period of development in the area has a visible impact on roof and exterior walls. In this particular vicinity the impact of the age and period of the substantial five-storey residential flat building to the east of the site known as '[NAME]', the flat-roofed property opposite the site to the south known as the '[NAME]' site, and all of the commercial properties to the west between the site and [ADDRESS] are such that pitched roofs do not predominate in properties surrounding the subject site.

6. I also accept that the proposed basement car park entry can only be considered anomalous with the existing character if the wide concrete driveway to the east of the apartment building known as '[NAME]', and surface parking for four vehicles in the frontage of the '[NAME]' property are discounted from the immediate locality.

7. In any event, I accept [NAME]'s evidence that the car park entry represents less than 20% of the site frontage to [NAME], and is part of a masonry street façade that is otherwise animated by 'punched' windows into active areas, consistent with Part 4.4.3(c)(ii) of the HHDCP. As the entry is at the lowest part of the site, and an alternative entry from [NAME] would locate it closer to [NAME], it is arguable that there is no practical alternative, which is contemplated by Part 4.4.6 control (d). 8. [NAME] also believes the proposal 'draws attention' to itself. This appears to be a reference to the two horizontal windows in the [NAME] elevation that are said to depart from the preferred vertical orientation, and to the 'large box' containing stair and lift access to the outdoor play areas, adjacent to 4 [NAME].

9. I consider the repeated vertical pattern of the windows fronting [NAME] to be more visible, dominant and consequential than the two windows in [NAME]. In this assessment, I am assisted by the streetscape analysis at Drawing 13a (Exhibit C), re-produced below.

1. In respect of the 'large box' form, I accept [NAME]'s evidence that the stair and lift access is well within the height control applicable to the site under the HHLEP, is designed and detailed to be recessive, is set well back from [NAME], and does not dominate in scale when considered in context with the dwelling at 4 [NAME]. I also note no overlooking results and the landscape plans at Exhibit G shows screen planting to 4 [NAME] in accordance with Part 2.2.4 (b)(v) of the HHDCP.

2. I also find the proposal demonstrates conformity with the desired streetscape character set out in Section 2.2.4 (b)(v) of the HHDCP in the following ways: * The height of the proposed front facade is generally compatible with the existing masonry street wall evident in the commercial or mixed-use buildings to the west of the site, while observing the front setback of the residential dwelling to the east at 4 [NAME]. * New walls to [NAME] and [NAME] are predominantly masonry construction with windows that are set into vertically proportioned openings.

1. For the reasons stated above, I also consider the proposed development to be consistent with Section 3.2 of the Child Care Guideline Control C5 by being designed in character with the locality and existing streetscape and, by virtue of the sandstone material proposed to be used at similar height to the face brick commercial building to its west, by recognising predominant streetscape qualities, such as building form, scale, materials and colours.

2. That said, I do accept [NAME]'s statement that the proposed development will interrupt the view of [NAME] from [NAME].

3. As this is primarily a question of heritage, I will now consider the Respondent's submissions that the HHDCP should be the focal point of my consideration on heritage conservation.

The effect of the proposed development on the heritage significance of [NAME]

1. The Respondent identifies heritage conservation requirements at Part 2.4 of the HHDCP, including aims and objectives (Part 2.4.2), general requirements (Part 2.4.3), detailed requirements for heritage items (Part 2.4.4) and for heritage conservation areas (Part 2.4.5).

2. The introduction to Part 2.4 is in the following terms: "[ADDRESS] 2012 identifies heritage items and heritage conservation areas. Values of heritage items and heritage conservation areas have been confirmed by detailed studies and inventories that have been prepared by [NAME]'s Hill Council."

1. According to the Respondent, reference to 'detailed studies and inventories' places the Inventory Sheet for the site in Exhibit 11 at the focal point of the Court's consideration of cl 5.10 of the HHLEP, whereas the Applicant relies on s 4.15(3A)(a) of the [NAME] Act to argue that the operation of provisions contained in the HHDCP cannot set more onerous standards than those set out at cl 5.10 of the HHLEP.

2. The text of cl 5.10(4) of the HHLEP requires a consent authority, or the Court on appeal, to "consider the effect of the proposed development on the heritage significance of the item or area concerned".

3. The term 'heritage significance' is defined in the dictionary of the HHLEP as follows: heritage significance means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value 1. As the consideration required to be undertaken by the Court at cl 5.10(4) of the HHLEP is broadly characterised across eight domains that are not further defined or codified in the HHLEP, it is appropriate to give weight to studies such as heritage impact statements, conservation management plans, heritage inventory assessments and the like where undertaken by those with heritage expertise.

2. In this case, I am particularly assisted by the relevant extracts taken from the inventory sheet at pars 23 and 33, and by the heritage impact statement (Ex B, Tab 7), and the schedule of conservation works prepared by [NAME] dated June 2021 (Ex B, Tab 8).

3. The detailed requirements for heritage items at Part 2.4.4 of the HHDCP also relevantly provide: "Proposals for redevelopment of a heritage item also should address the following requirements: (a) Primary aims are to maintain and enhance qualities that have been documented by a heritage conservation management plan. (b) Any proposed changes to the existing building should respect the form, scale and materials of the original building, or should be of a very minor extent. (c) Proposals which involve substantial extensions are more likely to be acceptable if they would not compromise the integrity or character of the original building: (i) Desirably, extensions should be separated from the original building. (ii) In general, alterations or additions should respect the original building in terms of form and shape, scale, architectural details, materials and finishes. (iii) New works should incorporate an architectural style and details that would complement the original building, and should neither imitate nor visually compete with architectural character of the original building. (iv) Design of alterations or additions should incorporate a simple and unobtrusive architectural style which would neither detract from nor visually dominate the character of the original building."

1. The reference of particular interest in the inventory sheet is the recommendation that: "…The tennis court should not be developed for non-recreational uses. Views of the house across the tennis court should not be obscured in new development…"

1. As the Court was not assisted by the author of these words, their meaning is interpreted by the parties.

2. I understand the recommendation to avoid development of the tennis court for non-recreational uses is for the purpose of not obscuring [NAME] in any new development.

3. I do not read a recommendation on 'uses' in a heritage inventory sheet to be a land use as understood by reference to the land use table at cl 2.3 of the HHLEP. Instead, I read the recommendation as a whole and I understand that a recreational use for the site in the location of the tennis court would have the effect of preserving the views to [NAME].

4. The recommendation may also be understood in what it seeks to prevent, such as residential development that was the subject of the development proposal addressed by the Conservation Management Plan prepared by [NAME] dated July 2016 (Exhibit L).

5. To understand the degree to which views may be obscured, it is important to state here that reference to the survey (Ex A, Tab 6) and architectural plans (Ex C) indicates excavation of just over 4.5m is proposed in the location of the tennis court, currently at RL 50.50, with a single storey child care with basement car park to be developed in the location of the tennis court and beyond.

6. While not relevant to the exercise of determining the degree of view obscured, I note here that the Structural Adequacy Certificate prepared by [NAME] dated 3 August 2021 (Exhibit H) identifies the depth of excavation adjacent to the heritage building will be in the order of 6.7m.

7. The resulting rooftop terrace on which outdoor play is proposed, is shown at RL 52.00, with inner planter beds rising to RL 53.20 and outer perimeter planter beds at RL 52.40 (Exhibit P).

8. Further to the north, where the tennis court currently abuts the heritage fabric of [NAME], the tennis court, club house and garage are proposed to be removed in favour of landscaping (over structure) at an RL of between 51.30-51.60.

9. Simply put, the proposed development on, and in the vicinity of, the tennis court increases the height of solid form through which a view to [NAME] cannot be gained from RL 51.15, which is the current height of the masonry wall to the south of the tennis court, to a height of RL 52.4, to the level of the perimeter planter beds.

10. This amounts to an increase of 1.25m in height. While inner planter beds are higher still, the section drawings on Drawing 14 (Ex C) suggest they are obscured by the sightline.

11. While clearly the proposed development does partly obscure the view of a lower section of [NAME] from [NAME], I consider the form of the house that remains visible to be sufficient to understand it as a two storey form, and for the upper level of the bay arrangement on the south elevation to be seen.

12. I accept the result has been accurately depicted in the photomontages prepared by the [COMPANY] at Exhibit K, and I re-produce the [NAME] view below:

1. Furthermore, I consider that portion of [NAME] that is obscured when viewed from [NAME] to be more fully and completely visible and understood by the proposed removal of the unsympathetic built form to the west of [NAME], and the reinstatement of original elements that will be appreciated from [NAME] through a palisade fence.

2. In summary, I conclude the views to [NAME] that are partly obscured across the area of the current tennis court to be more than compensated for in the conservation and reinstatement works proposed to [NAME] itself that are set out on the Schedule of Conservation Works, and which are proposed to be overseen by an architect with heritage expertise according to Condition 21 and 22 in the agreed without prejudice conditions of consent (Exhibit 6).

3. As I regard the proposed changes to [NAME] itself to respect the form, scale and materials of the original building, and given the proposed development of the child care facility south of the [NAME] is separated from the original building in a manner that neither imitates nor visually competes with the architectural character of the original building, I also consider the detailed requirements for heritage items at Part 2.4.4 of the HHDCP to have been achieved.

4. I have also considered the detailed requirements for redevelopment of a property in heritage conservation areas at Part 2.4.5 of the HHDCP, and the assessment procedures at Part 2.4.6 of the HHDCP. Having regard to the Heritage Impact Statement prepared by [NAME] (Exhibit B, Tab 7), the architectural drawings and landscape drawings, I conclude that the proposed development is consistent with the heritage conservation values of the [NAME].

5. For the reasons above, I consider the effect of the proposed development on the [NAME] heritage item, and the [NAME] to be acceptable pursuant to cl 5.10 of the HHLEP.

Noise amenity impacts are considered 1. The Respondent's acoustic concerns are twofold:

1. Firstly, the noise imposed from the proposed development on surrounding properties, and 2. Secondly, the level of noise imposed from outside the site on the site itself.

1. These issues were addressed both by the [NAME] for the Respondent and [NAME] for the Applicant who conferred in the preparation of the joint expert report at Exhibit 5 and in part, by the [NAME] for the Respondent, and [NAME] for the Applicant.

2. In respect of the first issue, it is relevant to record here that the outdoor play areas are located on what is the roof of the child care facility and the Respondent contends that the proposed daily use of the outdoor play areas are likely to result in adverse noise amenity impacts on neighbouring properties at [ADDRESS] and 4 [NAME].

3. The Applicant relies on an Acoustic Assessment Report ([NAME]) prepared by [NAME] dated 10 June 2021 (Ex B, Tab 6) that is, in turn, based on certain operational assumptions set out in the Plan of Management (Exhibit O). In particular, the Plan of Management stipulates the number of children, timing and duration of use of the three outdoors play areas identified as OPA 1, OPA 2A and OPA 2B, shown at Appendix D3 of the [NAME], and re-produced below:

1. The oral evidence of the [NAME] was focused on the operation of the Plan of Management in addressing the amenity of neighbouring properties by reference to the outdoor play areas as shown in the landscape plans at Exhibit G.

2. In particular, OPA 2A, located to the east of [NAME], is identified on p 9 of the Plan of Management as being "Outdoor Play Area 2A, Active 0-2 or passive 2-5".

3. I understand this reference to mean the area may be used for active play by ages 0-2, and for passive play for ages 2-5. This is supported by the breakdown of times allocated to each 'Family Group' throughout the day, from 7.30am to 5.30pm that shows active play by ages 0-2 occurring in OPA 2A only between 4.30pm-5.30pm.

4. Achieving acoustic noise target levels to ensure acceptable amenity of residents at [ADDRESS] requires that children aged 2-5 years in the OPA 2A engage in passive play only. 5. [NAME] is of the view that such an expectation is unreasonable where that expectation is imposed on children aged 2-5, when behaviour can be spontaneous and unpredictable, but accepts this is unlikely to be sustained for 15 minutes or more due to intervention from educators. 6. [NAME] considers the combination of design of OPA 2A, and the supervision provided to children in the area to be factors likely to influence behaviour that is more passive. In support of his view, [NAME] contrasts the design of OPA 1, which is larger and invites active play by visual signals and the variety of equipment, with the more constrained dimensions and absence of play equipment in OPA 2A.

7. The number of children permitted to use the outdoor play areas is set out as follows on pp 8-9 of the PoM in the following terms: "Outdoor Play Area OPA 1 is the elevated play area on an elevated deck at the southern end of the site OPA1 can be used for active play with the following maximum numbers: 0 -2 years (up to 16 children) 2 -3 years (up to 15 children with OPA2B not in use) 3 –5 years (up to 10 children with OPA2B not in use) OPA1 can also be used for passive play with the following maximum numbers: 2 -3 years (up to 25 children with OPA2A also being passive for 15 x 3 –5 years) 3 –5 years (up to 20 children with OPA2A also being passive for 25 x 2 –3 or 15 x 3 –5's Outdoor Play Area OPA 2 on the architectural plans is to be divided into the following two areas OPA 2A and OPA2B: OPA 2A is on the eastern and southern sides of [NAME] with the following use: (a)0 –2 years for Active play (up to 16 children) (b)2 –3 or 3 –5 years for Passive play only (up to 25 2 –3's or 15 3 –5's). OPA 2B is to the west of [NAME] and use will vary depending on age group and which other areas are being utilised. (a) 0 –2 years (up to 16) can do active play regardless of what other play is occurring in OPA1 and OPA2A (b) 2 -3 years (up to 25 children) c) 3 –5 years (up to 20 children active, or 40 children passive)"

1. The PoM also states that children will be divided into 'Family groups' to manage the amount of noise produced by children in the outdoor play areas. The timing of access to each of the Outdoor Play Areas for the family groups is set out in Exhibit N.

2. The Applicant's [NAME] identifies nominated sound power levels at Table 5, and the matrix of outdoor play area operations at Table 6. The resulting conclusions are set out at Appendix E7. According to [NAME], the conclusions identify acoustic levels at the relevant receivers within the Noise Target levels required by the Association of Australasian Acoustical Consultants Guideline for Child Care Centre Acoustic Assessment Version 3.0 (AAAC Guideline) (Exhibit 8), being background noise +5dB(A).

3. In order to achieve the acoustic performance consistent with the AAAC Guideline, the [NAME] recommends acoustic barriers to be provided at 3 locations shown at Appendix D6, which may be summarised as follows: * A 2.2m high boundary barrier to the east, between OPA 2A and No 4 [NAME], * A 1.6m high solid Perspex or polycarbonate backing to the west, between OPA 2B and [NAME], * A 1.2m high solid Perspex or polycarbonate backing to the south and east of OPA 1.

1. The [NAME] agree that further assumptions underlying [NAME]'s [NAME] are set out in tables at Appendix E3. In summary, the tables show the number of children assumed to be engaged in active and passive play at an array of locations, relative to residential receivers.

2. The [NAME] also agree that in the event of 3 children engaging in active, and not passive play, the noise target levels experienced at No [ADDRESS] would exceed the AAAC Guideline.

3. According to the Respondent, the margin for error is so slim that the likelihood of non-compliance with the noise target levels is high.

4. The Respondent cites relevant parts of the planning principle in [NAME] Pty Limited v Hurstville City Council [2005] NSWLEC 315 ([NAME]) which invites the Court to consider, relevantly, whether the requirements in the Plan of Management require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case, and whether the requirements in the Plan of Management require absolute compliance to achieve an acceptable outcome.

5. I note that the particular factual circumstances in [NAME] relate to the movement of delivery vehicles in a loading dock servicing a supermarket, requiring drivers to operate under the supervision of the Stockroom manager so as to avoid conflict between deliveries, and to minimise impacts on an adjoining road, and residential area.

6. In this case, the Plan of Management codifies the schedule of adult supervision of children aged between 0-5 which I regard to be a different proposition, and one in which it is reasonable to assume, by the close interaction between educator and children engaged in daily routines, compliance.

7. The Plan of Management includes indicative activities at Section 11 that it defines as 'passive play', including: "For the purposes of this Plan of Management, a reference to quiet passive outdoor play is taken to include the following activities: -Sandpit -Drawing -Seated activities -Story-telling -Crawling spaces -Gardening -Literature/Poetry -Arts & Craft -Science and Biology lessons -Environmental and exploring lessons -[ADDRESS] -Role play -Creative movement (including Yoga)"

1. Section 13 of the Plan of Management is a Noise Management Plan (NMP) that, for example, precludes the playing of amplified music in outdoor areas, requires educators to read the NMP, and provides for any child who is crying or upset while outdoors to be taken inside immediately.

2. These matters are consistent with Section 6.8 of the AAAC Guideline, which anticipates the number of children playing outside at any one time may need to be limited to meet the noise criteria and that the behaviour of children should be monitored and modified as required by adequately trained child care workers.

3. On this basis I find it reasonable to conclude that the acoustic privacy of adjoining properties will be within the noise target levels of the AAAC Guideline and so achieve the control at Section 3.1 of the Child Care Guideline, Control C1.

4. Additionally, given the agreed extent of acoustic barriers located at the boundary with adjoining properties, I conclude the proposal conforms to Section 3.5, Control 23 of the Child Care Guideline.

5. In considering the level of noise imposed from outside the site on the site itself, the [NAME] cites the requirement of the AAAC Guideline to consider the level of noise generated from indoors areas, vehicle movements, [NAME] and the like.

6. The two sources of external noise are agreed by the [NAME] as being from road traffic on [ADDRESS], and [NAME] operating in commercial premises on [ADDRESS].

7. The Respondent contends that in order for the proposal to comply with the AAAC Guideline, all external windows and doors must be kept closed in Playrooms 1, 2, 4, 5, 6 and 7 when those rooms are in use.

8. Furthermore, the values shown in Appendix G of the [NAME] under-estimate the noise emissions from vehicle movements which leads to false conclusions, and without nominating the location of [NAME] on the site, noise target levels for [NAME] cannot be accurately assumed.

9. Additionally, at par 3.140 of the joint expert report (Ex 5) [NAME] believes that while the [NAME] has addressed the traffic noise criterion from the Environmental Planning Authority's Road Noise Policy, it has not addressed the "Road, Rail and Industry" noise target to not exceed 55 dB(A) in the AAAC's Guideline (Exhibit 8, Section 5.1). If both of these noise sources were permitted to emit at a level of 55 dB(A), the total noise level could be as high as 58 dB(A).

10. In his oral evidence, [NAME] does not understand the text of Section 5.1 to require the assessment to be undertaken in a cumulative manner, but only to ensure that the level of noise, which may be from traffic or [NAME], to not exceed 55 dB(A) during the hours the facility is operating. On a reading of the text, I agree.

11. The measured noise level at Location 5 of the [NAME] (Appendix B8) is 65.3 dB(A). In this location, [NAME] identifies [NAME] servicing the commercial premise fronting [ADDRESS] that may exceed acceptable limits, and impose a greater noise impact on the levels recorded between the hours of 4pm-9pm which [NAME] considers consistent with restaurant activity.

12. However, [NAME]'s view is that noise levels of 59.0 dB(A) (Location 6, Appendix B16), and 59.7 dB(A) (Location 3, Appendix B1), are measured at distances that are further away from the [NAME] yet do not decrease in value as would be expected.

13. Arising from closing submissions, the Court sought further clarification on how some logger results shown in the [NAME] should be understood, and directed the Applicant to provide a short one page explanation by close of Court the following day, and inviting submissions in reply from the Respondent the following day if necessary.

14. As I understand the [NAME], and the explanation provided by the Applicant after the Court reserved its decision, the noise levels at Location 5 were taken at 4.5m in height at the request of the Council. The noise levels logged at Location 6 and Location 3 were not taken at a height of 4.5m, but these locations are affected by traffic noise generated from [ADDRESS], that find their way to the site via [NAME].

15. The [NAME] discounted the exceedance of the [NAME] at [124] and identifies a level of 57 dB(A) attributable to industry noise.

16. As I understand it, this level is then discounted by a factor of 2.5dB(A) due to OPA 1, OPA 2A and OPA 2B being outdoors and so façade-corrected levels are appropriate to apply.

17. On this basis I accept the Applicant's submission that the noise levels in the [NAME] do not exceed background + 5 dB(a), but for [NAME] that the parties agree exceeds the levels permitted by the Environmental Protection Authority.

18. To attenuate the noise levels imposed on the site, the [NAME] recommends that the windows to Playrooms 1, 2 and 5 be closed when classrooms are in use.

19. It is relevant to record here that the heritage [NAME] are agreed that Playrooms 6 and 7, located in [NAME], may be ventilated through floor-mounted registers given the generous sub floor area available, and accordingly a condition of consent is proposed.

20. Likewise, Condition 16 of the agreed without prejudice conditions of consent requires that all [NAME] be concealed within the building enclosure.

21. I also note agreement of the [NAME] that Playroom 4, relevant to the contention, may be ventilated internally via the adjoining lightwell.

22. On this basis I consider the objectives and controls at Part 4.2.8 of the HHDCP, and the requirements of Section 3.5, Control C23 of the Child Care Guideline to be achieved.

23. In arriving at my conclusion, I note that the site is consistent with the objectives of Part 4.2.3 of the HHDCP, and demonstrates conformity with controls (a)(i)-(iii) and (v)-(vi) of that part. The gentle slope to the south permits a single storey form to the south of the site where the shadow diagrams indicate direct sunlight, and where there are neighbouring properties on only 2 sides of the property, while being within 40m of public transport services on [ADDRESS].

Conclusion 1. On the basis of my finding at [93] in respect of the effect of the proposed development on the heritage item and the [NAME], my finding at [114] and [133]-[134] in respect of the acoustic amenity, and the agreed position of the parties that the proposed development complies with the floor space ratio and height of buildings development standards in the HHLEP, I conclude that the site is suitable for the proposed development, subject to compliance with those matters that are jurisdictional preconditions to the grant of consent.

2. I find there are no jurisdictional impediments arising from the [NAME] that would prevent the grant of consent, and I am satisfied that those jurisdictional preconditions to the grant of consent that are relevant to my consideration are achieved for the following reasons:

1. Clause 6.2 of the HHLEP requires the Court to consider matters set out at subcl 3(a)-(h) in respect of earthworks. The certificate of structural adequacy at Exhibit H addresses soil type and stability, method of excavation and drainage patterns on the site. The letter prepared by [NAME] dated 4 August 2021 (Exhibit E) addresses the quality of fill or soil to be excavated. I have read Exhibit E and H and I am satisfied that the matters at cl 6.2 of the HHLEP are addressed.

2. Clause 6.3 of the HHLEP requires the Court to be satisfied of matters at subcl (3) so as to minimise the impacts of urban stormwater. On the basis of the Stormwater Engineering Plans (Exhibit B, Tab 3), and Landscape plans, I am satisfied that the proposed development is designed to maximise water-permeable surfaces, in areas of deep soil and on-structure planter beds and the like; that provision has been made for on site water detention and bio retention that will avoid adverse impacts of stormwater runoff on adjoining properties.

3. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the Phase 1 Environmental Site Assessment prepared by [NAME] dated March 2020, filed with the Court after the Court reserved its decision, and the letter provided by [NAME] dated 4 August 2021 I am satisfied the site is suitable.

Public submissions 1. A number of public submissions identified [NAME] as a place of heritage significance that would be lost to the local community if development consent was granted. For the reasons set out in my decision, I do not consider these concerns to be warranted when the development the subject of this development application is understood.

2. Traffic, parking and related issues were also identified as a matter of concern. The [NAME] are agreed on the manner in which the contentions have been, or may be, addressed in conditions of consent dealing with traffic management and safety.

3. In respect of whether there is consistency between the proposal and the [NAME], I note Exhibit 9 records the Council's resolution to place the Built Form Block Studies on exhibition for 28 days after which a report will be prepared for a newly elected Council that will include recommendations on finalisation of the [NAME]. The [NAME] is a draft policy document on public exhibition, is subject to further change, and does not have statutory weight in its current form.

4. I consider the remainder of the public submissions to have been addressed in the judgment set out above.

5.

Accordingly, I determine that the development the subject of the development application warrants the grant of consent in accordance with s 4.16 of the [NAME] Act, subject to those conditions agreed by the parties.

Directions 1. As stated earlier at [2] and [3], the Applicant seeks to amend the application before the Court. Clause 55(1) of the [NAME] sets out the procedure for amending a development application.

2. The procedure stipulates that, for a development application to be amended, the agreement of the consent authority is required, and the amendment must be lodged on the [NAME].

3. The Respondent has confirmed its agreement to the amendment of the application, and the Court was advised by the Applicant on 30 August 2021 that the amended application was lodged on the [NAME].

4. On this basis, I consider it appropriate to make the following directions:

1. The Applicant is to file the amended application for development consent with the Court as directed at [3], within 7 days of the date of these orders.

2. As the Court was not addressed on the subject of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the [NAME] Act, the parties are directed to provide, within 14 days of the date of these orders, short written submissions of one page in length as to whether the amendments are considered minor for the purposes of s 8.15(3) of the [NAME] Act, if the matter is not otherwise agreed. ………………….. [NAME] Commissioner of the Court

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2021