Land and Environment Court New South Wales Medium Neutral Citation: Jbe1 Pty Ltd v The Hills Shire Council [2021] NSWLEC 1199 Hearing dates: 26 and 29 March 2021 Date of orders: 27 April 2021 Decision date: 27 April 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is upheld. (2) Development application DA 1231/2020/HA seeking consent for the demolition of all existing structures, vegetation removal and construction of a 90 place, three storey centre- based child care facility (the Proposed Development) at 98 Old Northern Road, Baulkham Hills is determined by the grant of consent, subject to the conditions of development consent provided at Annexure 'A'. (3) The exhibits are returned, with the exception of Exhibits B, E, 1 and 8. Catchwords: DEVELOPMENT APPLICATION – child care centre – whether proposed side setbacks are acceptable – whether proposed parking is acceptable – whether character is compatible Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7(1) State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 The Hills Local Environmental Plan 2019, cll 2.1, 2.2, 2.3, 4.3, 4.4 Cases Cited: Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Texts Cited: COVID-19 Pandemic Arrangements Policy NSW Department of Planning, Child Care Planning Guideline, 2017 The Hills Development Control Plan 2012 Category: Principal judgment Parties: Jbe1 Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: M Astill (Applicant) S Kondilios (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Hall and Wilcox (Respondent) File Number(s): 2020/185696 Publication restriction: No Judgment 1. COMMISSIONER: Jbe1 Pty Ltd (the Applicant) has appealed the deemed refusal by the Hills Shire Council (the Respondent) of its development application DA 1231/2020/HA seeking consent for the demolition of all existing structures, vegetation removal and construction of a three storey centre- based child care facility (the Proposed Development) at 98 Old Northern Road, Baulkham Hills (the Subject Site). 2. The Subject Site is generally rectangular in shape having a splayed eastern front boundary to Old Northern Road, to the south of its intersection with Ackling Street. It has a total site area of 1,374m2 with a frontage of 29.9m and a depth of approx. 47.15m. It has a significant fall of approximately 4.6m from its front southern corner through to its rear northern corner. 3. The existing vegetation on Subject Site includes native and exotic trees and shrubs in a mature garden setting. Some existing vegetation is proposed to be removed as part of the Proposed Development, but the Applicant's most recent landscaping plans include retention of some vegetation. 4. The Subject Site is zoned R3 Medium Density Residential under the provisions of The Hills Local Environmental Plan 2019 (THLEP). 5. The appeal comes to the Court pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and is determined pursuant to the provisions of s 4.16 of that Act. 6. The hearing was undertaken consistent with the Court's COVID-19 Pandemic Arrangements Policy. An inspection of the Subject Site was undertaken prior to the hearing being convened on the Microsoft Teams platform. No objectors sought to make submissions in relation to the appeal, either during the site view or during the hearing proper. 7. At the commencement of the hearing proper, the Parties confirmed that certain matters that had been in contention between them had been resolved on the basis of joint conferencing and recommendations of experts, and as a consequence, those experts would not be required for cross examination in the hearing. Those matters concerned: 1. potential noise and solar access impacts of the Proposed Development which: 1. the Parties' acoustic experts had agreed were resolved on the basis of design measures, including acoustic barriers that achieved compliance with applicable noise standards; consistent with the provisions of section 3.5 of the Child Care Planning Guideline (the Guideline); and 2. were assessed to be acceptable by the Parties' town planning experts in terms of potential visual and solar access impacts that may have arisen from the design of noise barriers required to mitigate potential noise impacts, in satisfaction of the provisions of section 3.3 of the Guideline; 1. the adequacy of the Applicant's landscaping plans, in relation to which the Parties' experts agreed that the Applicant's most recent landscaping proposals were acceptable except for the Respondent's landscaping expert's concerns in relation to landscaping proposed for a 3m length of the front side setback of the Subject Site. Notwithstanding this concern, the Parties agreed that this was a minor, and acceptable, variation to the relevant landscaping control in THDCP in the context of design requirements for site access in that area. I adopt the agreed position of the Parties which is consistent with the variation representing a reasonable alternative solution that: 1. nevertheless achieves the objectives of the relevant landscaping control in THDCP; and 2. should be allowed pursuant to the provisions of s 4.15(3A)(b) of the EP&A Act (see below at [9]). 1. As a consequence of the advice of the Parties, the remaining contentions requiring resolution by the Court in this appeal concern: 1. the character of the Proposed Development, and specifically whether it is compatible with the character of the local area and the surrounding streetscape as required under section 3.2 of the Guideline; 2. the adequacy of the side setbacks of the Proposed Development, and more specifically whether the setbacks proposed satisfy the applicable setback controls in The Hills Development Control Plan 2012 (THDCP); and 3. the adequacy of the car parking arrangements in the Proposed Development, and specifically whether these satisfy the requirements for parking in a child care centre under the provisions of THDCP. Statutory context Environmental Planning and Assessment Act 1979 1. Section 4.15(3A) of the EP&A Act provides as follows: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority— (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 1. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the Child Care SEPP) requires, under the provisions of cl 23, that the provisions of the Childcare Planning Guideline (the Guideline) must be considered when determining a development application for a child care centre, as follows: 23 Centre-based child care facility—matters for consideration by consent authorities Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development. 1. Clause 26 of the Child Care SEPP also states that the Guideline will take precedence over a development control plan (DCP), with some exceptions, where the two overlap in relation to a child care facility, as follows: 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. The Hills Local Environmental Plan 2019 1. Development on the Subject Site is subject to the provisions of THLEP. The following provisions of THLEP are of particular relevance in this appeal: 1. Clause 2.1, which establishes land use zones within the area to which the plan applies as provided in cl 2.2 of THLEP. 2. The Subject Site is zoned R3 Medium Density Residential, and under the provisions of cl 2.3 of THLEP, the objectives of this zone are to: - provide for the housing needs of the community within a medium density residential environment. - provide a variety of housing types within a medium density residential environment. - enable other land uses that provide facilities or services to meet the day to day needs of residents. - encourage medium density residential development in locations that are close to population centres and public transport routes. 1. Clause 4.3 of THLEP which concerns height of buildings (HoB) and which provides as follows: (1) The objectives of this clause are as follows - (a) to ensure the height of buildings is compatible with that of adjoining development and the overall streetscape; (b) to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. (a) Development on the Subject Site is subject to a 9.5m height of buildings development standard, and the Proposed Development complies with this standard. 1. Clause 4.4 of THLEP which concerns floor space ratio (FSR) development standard, and in relation to which the Parties advised that there is no FSR that is applicable to development on the Subject Site. Child Care Planning Guideline 1. The Guideline seeks to establish an assessment framework to deliver consistent planning outcomes and design quality for centre based child care facilities in NSW. 2. Section 3.2 of the Guideline concerns character, streetscape and the public domain interface and includes consideration C5, which: 1. includes as its objective: "to ensure that the child care facility is compatible with the local character and surrounding streetscape". 1. states that a proposed child care facility should: "- contribute to the local area by being designed in character with the locality and existing streetscape; - reflect the predominant form of surrounding land uses, particularly in low density residential areas; - recognise predominant streetscape qualities, such as building form, scale, materials and colours; - include design and architectural treatments that respond to and integrate with the existing streetscape; - use landscaping to positively contribute to the streetscape and neighbouring amenity; - integrate car parking into the building and site landscaping design in residential areas." 1. Section 3.3 of the Guideline concerns building orientation, envelope and design and includes consideration C11, which: 1. includes as its objective: "to respond to the streetscape and site, while optimising solar access and opportunities for shade"; 1. states that a proposed child care facility should orient development on a site and design the building layout to: "- ensure visual privacy and minimise potential noise and overlooking impacts on neighbours by: - facing doors and windows away from private open space, living rooms and bedrooms in adjoining residential properties - placing play equipment away from common boundaries with residential properties - locating outdoor play areas away from residential dwellings and other sensitive uses; - optimise solar access to internal and external play areas; - avoid overshadowing of adjoining residential properties; - minimise cut and fill; - ensure buildings along the street frontage define the street by facing it; - ensure that where a child care facility is located above ground level, outdoor play areas are protected from wind and other climatic conditions." 1. Section 3.5 of the Guideline concerns visual and acoustic privacy and includes consideration C23, which: 1. includes as its objective: "to minimise the impact of child care facilities on the acoustic privacy of neighbouring residential developments". 1. requires that 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 mechanical plant or equipment is screened by solid, gap free material and constructed to reduce noise levels e.g. acoustic fence, building, or enclosure." The Hills Development Control Plan 2012 1. The Proposed Development is subject to the provisions of THDCP, and the following elements of Parts B and C of THDCP, and their provisions, are of relevance to this appeal: 1. Part B2 of THDCP provides controls in relation to residential development on land where this type of development is permissible under the provisions of THLEP, and relevantly provides the following in relation to the Proposed Development: 1. section 2.14.1 which establishes setback controls for general residential development, and which is referred to in section 2.34 of Chapter B6 in relation to child care centre development controls, and which: 1. has the following objectives: i. "To provide setbacks that complements the streetscape and protects the privacy and sunlight to adjacent dwellings in accordance with ESD Objective 7. ii. To ensure that new development is sensitive to the landscape setting, site constraints and established character of the street and locality. iii. To ensure that the appearance of new development is of a high visual quality and enhances the streetscape."; 1. requires a minimum side setback of 900mm for the first and second storey, 1500mm for the third storey elements of developments to which the control applies. 1. Part B3 of THDCP provides controls in relation to dual occupancy housing on land where this type of development is permissible under the provisions of THLEP, and relevantly provides the following in relation to the Proposed Development: 1. section 2.3 establishes setback controls for dual occupancy developments and which: 1. has the following objectives: i. "To provide setbacks that complement the streetscape, protect the privacy of and minimise overshadowing of adjoining properties in accordance with Council's ESD objective 7. ii. To provide opportunities for landscaping between dwellings. iii. To ensure adequate site area and curtilage is provided to all development."; 1. requires a minimum side setback for developments of 900mm at the first storey and 4m at the second storey. 1. Part B4 of THDCP provides controls in relation to multi dwelling housing on land where this type of development is permissible under the provisions of THLEP, and relevantly provides the following in relation to the proposed Development: 1. section 3.3 establishes setback controls for multi dwelling housing developments and: 1. has the following objectives: i. "To provide an open streetscape with substantial areas for landscaping and screen planting. ii. To minimise overshadowing of adjoining properties. iii. To protect privacy and amenity of any adjoining land uses in accordance with Council's ESD objective 7. iv. To ensure developments are compatible with the character of surrounding housing areas in respect of the quantity and quality of open space."; 1. requires a minimum side setback for developments of 1.5m for a 5m portion of the first storey component of any unit, 4.5m for the remainder of the first storey and 6m for second storey components. 1. Part B6 of THDCP provides controls in relation to Business zoned land, and land where commercial land uses are permissible, under THLEP, and relevantly provides the following in relation to the Proposed Development: 1. section 2.34 provides certain additional controls in relation to centre-based child care facilities, and: 1. has the following objectives: "1. To ensure that adequate area is provided to permit high-quality landscape planting for the development. 2. To ensure that external play areas are located to provide a safe environment for children 3. To ensure a high standard of environmental quality in child care centre developments and to maintain the overall visual amenity and character of the neighbourhood. 4. To provide a satisfactory relationship between buildings, landscaped areas and adjoining developments. 5. To ensure that food is handled in a safe and healthy manner."; 1. states under its development control (a) that "Other relevant Sections of the DCP (i.e. Part B Section 2 – Residential) should be consulted with regards to setbacks, depending on the nature and location of the development." 1. Part C1 of THDCP provides controls concerning parking and applies to all land identified under THLEP and to all permissible parking activities as defined in THLEP, including in relation to centre-based child care facilities, and relevantly provides the following in relation to the Proposed Development: 1. Section 2.1 provides controls in relation to general parking requirements, and relevantly in this appeal: 1. has the following objective: i. "To provide sufficient parking that is convenient for the use of residents, employees and visitors of the development." 1. includes a table (Table 1) that identifies the required minimum car parking provisions for various land uses including in relation to child care centres, which should provide one (1) space per employee and one (1) space per six (6) children enrolled for the use of visitors and/or parents; 2. which states under development control (b) in section 2.1.1 that "All car parking spaces must be provided onsite"; 3. which states under development control (e) in section 2.1.1 that "Car parking for child care centres must be situated in a convenient location, allowing for safe movement of children to and from the centre"; 4. which states under development control (i) in section 2.1.1 that "Stack parking will not be included in the assessment of the number of car parking spaces for retail, commercial, medium density residential and industrial development and the like". Contentions 1. The remaining contentions in this appeal have been identified above (at [8]). They concern matters related to the compatibility of the Proposed Development with the character of the area and streetscape in which it is located, the adequacy of the centre's proposed side setbacks, and the adequacy of parking proposed for the centre. 2. I will first consider the adequacy of the Applicant's side setbacks within the Proposed Development, before then considering the adequacy of the proposed parking arrangements and concluding with consideration of the compatibility of the Proposed Development with the local character and surrounding streetscape. Are the Side Setbacks of the Proposed Development Acceptable? 1. The Proposed Development has side setbacks of between 3m and 4.5m at its lower levels and 6m at its upper level. 2. The provisions of THDCP provide no specific numeric controls for setbacks for a childcare centre, but control (a) of section 2.34 in Part B6 of THDCP states that other relevant sections of the THDCP should be consulted with regards to setbacks and it makes specific reference to Part B section 2 – Residential of THDCP (see above at [17(1)]). 3. Having noted this reference to "other relevant sections of the THDCP", the Respondent said, supported by the evidence of Mr Barwick, that: 1. because multi dwelling housing was a built form in the vicinity of the Subject Site the provisions of Part B4 of THDCP concerning side setback controls in multi-dwelling housing was the relevant section of THDCP to consult in relation to applicable setback controls; 2. it had assessed the Proposed Development against the setback controls in Part B4 of THDCP and had concluded that the Proposed Development did not meet those controls, and on this basis should be refused. 1. The Applicant submitted that the Respondent's submission was in error as multi dwelling housing, while present in the area, was not a form of development permissible on the Subject Site under the provisions of THLEP by reason of its site area which was below that required for a multi dwelling housing development. 2. The Applicant also noted that, if reference to another section of THDCP was to be the basis for assessing the adequacy of the Proposed Development, then the provisions in Part B3 of THDCP concerning setback controls associated with dual occupancy housing, which is a permissible development on the Subject Site, was the appropriate basis for assessment of the adequacy of the side setbacks in the Proposed Development. The Applicant said that the Proposed Development was compliant with the applicable side setback controls in Part B3 of THDCP. 3. The Applicant's expert, Mr Minto, said that, in his opinion: 1. there were no specific numeric side setback controls applicable to the Proposed Development; 2. the intent of control (a) of section 2.34 in Part B6 of THDCP, which specifically addressed setbacks of proposed child care centres, was that the Applicant was required to have general regard to setback controls in THDCP in designing its development, and 3. the Applicant's proposed side setbacks were responsive to the stepped nature of the setback controls in THDCP which required that as the height of developments increased, the quantum of the required setbacks should also increase. In that regard he said that the Applicant's proposed 3m and 4.5m setbacks at lower levels of its Proposed Development and its proposed 6m at the upper level, were appropriately responsive to the surrounding residential circumstances of the Proposed Development and the permissible uses arising from the R3 medium density zoning of the Subject Site. 1. Having considered the evidence of the town planning experts and the submissions of the Parties, I accept the position of the Applicant, supported by its expert, Mr Minto, that the side setbacks of the Proposed Development are acceptable because: 1. Control (a) in section 2.34 of Part B6 in THDCP requires that applicants consult other sections (plural) of THDCP in relation to setback controls for child care centres "depending on the nature and location of the development". The control then makes specific reference to the controls in THDCP Part B2 – Residential controls, preceding it with the expression id est, abbreviated to 'ie', and meaning 'that is', rather than using the expression exempli gratis, normally abbreviated to 'eg', and meaning 'for example'. 1. Notwithstanding this, the Parties interpreted the reference to 'ie' in control (a) to Part B2 of THDCP as being made in terms of "for example", and as being a direction to consider this section as one of several sections of THDCP that might be consulted for clarification of relevant setback controls "depending on the nature and location of the development". 2. The Parties did not interpret the reference to 'ie' as meaning "that is", which would imply that only section B2 within THDCP should be consulted in relation to relevant setback controls. 3. While I am content to adopt the interpretation of the Parties on this point, I am also of the opinion the wording of control (a) of Part B6 section 2.34 would benefit from redrafting to confirm its intent more clearly. 4. I have considered the submissions of both Parties in relation to the side setback controls in Parts B3 Dual Occupancy, and B4 Multi-dwelling housing, and I have concluded that: 1. the Proposed Development meets the side setback controls in B3 – Dual Occupancy, which is a permissible form of development on the Subject Site; 2. although the proposed Development does not meet the numeric controls in THDCP Part B4 – Multi Dwelling Housing, and while this form of development would not be permitted on the Subject Site owing to the area of the Subject Site, it nevertheless meets the objectives of the Part B4 setback controls because: 1. the proposed development will, in my assessment, provide an open streetscape with substantial areas for landscaping and screen planting, which in any case will be a consequence of the development's compliant front setback and its proposed landscaping which the experts agreed was acceptable other than in relation to a mall area in the south east of the site which arises as a result of the design of site accessibility measures and which is in my view acceptable; 2. the proposed development will minimise overshadowing of adjoining properties which I conclude from the facts that the height of the development is compliant with the HoB development standard, and the front and rear setbacks were not contested, and it was not contested that a change to the side setbacks would affect overshadowing impacts in any significant manner. Further, Mr Barwick in oral evidence stated that the solar access impacts of the proposed development were acceptable and the development should not be refused on that basis; 3. the proposed development will protect privacy and amenity of the adjoining residential land uses, which I conclude from the fact that the Respondent pressed no contention relating to these issues; and 4. the proposed development will be compatible with the character of surrounding housing areas in respect of the quality and quantity of open space, which I conclude from the fact that no contention in relation to this matter was pressed in the appeal. 1. Further I have also considered the side setbacks of the Proposed Development in relation to the objective of section 2.34 Part B6 of THDCP, and I am satisfied that the Proposed Development satisfies the objectives of that control, as it: 1. provides an adequate area to permit high-quality landscape planting for the development, as agreed by the Parties' landscape experts; 2. provides external play areas that are located so as to provide a safe environment for children, which I conclude from the fact that this was not a matter in contention in the appeal, reflecting a common agreed position of the Parties, which I adopt; 3. will provide a high standard of environmental quality in the proposed child care centre, which I conclude from the fact that this was not a matter in contention in the appeal, reflecting a common agreed position of the Parties, which I adopt; 4. will provide a satisfactory relationship between buildings, landscaped areas and adjoining developments, as there will be no unacceptable noise and privacy impacts on adjoining lands, and the Proposed Development will provide adequate landscaping at its sides as well as within its front setback; 5. will maintain, in my assessment, overall visual amenity and character of the neighbourhood which I conclude from the fact that front and rear setbacks are acceptable, height is compliant, landscaping is acceptable, and potential noise and privacy impacts have been mitigated. 1. For reasons provided above at [30] and [31], I am satisfied that the side setbacks provided within the Applicant's Proposed Development are acceptable and do not provide a basis for refusal of the Proposed Development. Are the Applicant's proposed parking arrangements acceptable? 1. Parking requirements of the proposed Development are based on the provisions of Table 1 in Part C1 of THDCP (see above at [17(5)]), which requires that a child care centre (identified as falling within an Education land use class in Table 1) should provide 1 space per employee and 1 space per 6 children enrolled. 2. The Parties agreed that the provisions of THDCP Table 1 require that the Proposed Development should provide 32 car parking spaces for the use of staff, parents and visitors to the facility. The Applicant's Proposed Development includes 30 parking spaces, including tandem places, also referred to as stacked places. 3. The Parties agree that on this basis there is at least a shortfall of two car parking spaces against the applicable requirements of THDCP. 4. The provisions of control (e) in section 2.1 of Part C1 of THDCP (see above at [17(5)(a)(iv)]) requires that car parking for child care centres must be situated in a convenient location, allowing for safe movement of children to and from the centre. 5. The Respondent submitted that, pursuant to the provisions of section 2.1.1 control (i) of Part C1 of THDCP, referred to hereafter as Part C1 control (i), tandem parking, also referred to as stack parking, cannot be included in the assessment of the number of parking spaces because childcare centres such as that proposed by the Applicant is captured by the section's application to retail, commercial, medium density residential, and industrial development, and the like. The Respondent said that if this submission were to be embraced by the Court, the shortfall in car parking spaces provided by the Proposed Development would be eleven (11) spaces. 6. In assessing whether the number of car parking spaces within the Proposed Development is acceptable, it is necessary to resolve the following two questions: 1. Should the tandem/stacked parking arrangements proposed by the Applicant be included in calculations concerning compliance with parking requirements under THDCP? 2. Applying the answer to the first question to the Proposed Development, are the Applicant's proposed parking arrangements, specifically the number of proposed parking spaces, acceptable? 1. In relation to the first question concerning the inclusion of tandem/stacked parking in calculating the Proposed Development's compliance with the Parking requirements of THDCP: 1. the Applicant said that: 1. Part C1 control (i), concerning the counting of stacked parking, did not apply to the Proposed Development because a child care centre was not like the other uses identified in the clause, and to which the provisions of the clause applied; 2. if Council had intended the Part C1 control (i) to apply to child care centres it would have been a simple matter for it to have specifically identified it as such, and it was not; 3. accepting (1) and (2), then the shortfall in car parking spaces against the requirements of Part C1 of THDCP would be two car parking spaces; 4. a shortfall in two spaces was acceptable for the development because Council's requirements, while documented in THDCP, were not required in order to achieve the objective of control (i) which is to provide sufficient parking that is convenient for the use of residents, employees and visitors of the development; 5. the Applicant's submission at [(d)], was supported by its expert, Mr Sannikov, who provided evidence in relation to surveys he had undertaken for Transport for NSW (formerly the NSW RTA) concerning child care parking rates, and the availability of further parking in Ackling Street, which would be located at a short and not inconvenient distance from the Applicant's proposed child care centre. 1. the Respondent submitted that: 1. the Part C1 control (i) did apply to childcare centres as this use was captured by the phrase "and the like" at the conclusion of the control; 2. accepting the Respondent's proposition above at [(a)], then the Applicant's shortfall in parking provided within the Proposed Development was 11 spaces, and this was a sufficient enough shortfall to form a basis for refusal of the Applicant's development application; 3. the Court should not rely on the survey data quoted by Mr Sannikov in the joint report of the traffic experts because: 1. it was collected for a different purpose to that which was before the Court in the current appeal; 2. notwithstanding the submission of Mr Sannikov, the date had not been explicitly validated by Transport for NSW as being an acceptable basis for assessing parking demand for child care centres; 1. if the Court agreed with the Applicant that Part C1 control (i) did not apply to the Proposed Development, then it agreed that the Applicant's numeric shortfall in parking space provision was two spaces; and 2. if the circumstances identified above (at [(1)(d)]) were confirmed, then it did not quibble with a shortfall of two spaces which it said should be considered to be minor, and which it also said should not form a basis for the Court to refuse the application. 1. Having considered the evidence of the experts and the submissions of the Parties, I have concluded in relation to the first of the above questions (at [38(1)]), that: 1. the Applicant's interpretation of Part C1 control (i) of THDCP is correct for the reasons it provides (above at [39(1)]) which I adopt. Specifically, I agree that: 1. Table 1 provides that the control specifically applies to land use classes for residential, commercial, retail, and industrial uses, including a series of sub-uses within each class; 2. a separate land use class is identified for Education and this includes child care centres and this is not a land use specifically identified for application of Part C1 control (i); and 3. the term "and the like" should more correctly be interpreted as applying to the specific sub-classes of uses included in Table 1 under each of the land use classes to which Part C1 control (i) is specifically identified as being applicable. 1. I also agree with the Applicant that if Part C1 control (i) were intended to apply to child care centres then the list of uses to which it applies should have included "Education" uses under which child care centres falls as a sub-class of use. 1. As concerns the second of the above questions (at [38(2)]), and applying the answer identified above (at [40]) to the first question, I can conclude that: 1. the Applicant's Proposed Development has a shortfall of two car parking spaces against that required under the provisions of Table 1 in Part C1 of THDCP and the requirement under control (c) of s 2.1.1 of THDCP that all car parking spaces must be provided onsite; 2. consistent with the concession of the Respondent that a shortfall of two car parking spaces against the provisions of Table 1 in Part C1 of THDCP should be accepted as a minor shortfall and should not constitute a basis for refusal of the Proposed Development, I conclude that the Applicant's proposed parking arrangements are acceptable on a merits basis; 3. as further parking would generally be available only a short distance from the Proposed Development in Ackling Street, I am also satisfied that: 1. the Proposed Development would provide sufficient parking that is convenient for the use of residents, employees and visitors of the development; and 2. notwithstanding the numeric shortfall in parking space provision with the Proposed Development, the objective of s 2.1.1 in Part C1 of THDCP is achieved notwithstanding the non-compliance. 1. On the basis of my conclusions above at [40] and [41], I also conclude that the Applicant's proposed parking arrangements represent a reasonable alternative solution that achieves the objective of s 2.1.1 of THDCP, and merits the application of flexibility in relation to the provisions of the controls in that section of THDCP. 2. Finally, I observe that: 1. I have not needed to rely on the evidence of Mr Sannikov (see above at [39(1)(e)]) concerning his survey data for parking demand at child care centres in arriving at my conclusions at [40] and [41]. In doing so, I make no assessment concerning the applicability or otherwise of the data to the circumstances of the Proposed Development. 2. Notwithstanding my findings above at [40(1)], it is my assessment that the drafting of Part C1 control (i) of THDCP would benefit from a minor edit to ensure that its intent with respect to its applicability or otherwise to child care centres, and the intended purpose of the phrase "and the like" is made clear. Is the Proposed Development compatible with the local character and surrounding streetscape? 1. The Child Care SEPP requires that the Guideline be taken into consideration in addressing a development application for a centre based child care facility, such as is proposed in this appeal. 2. As noted above, section 3.2 of the Guideline establishes an objective that the design of centre based child care centres should be compatible with the local character and surrounding streetscape. 3. Senior Commissioner Roseth, as he was then, in his decision in Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (referred to hereafter as Project Venture) observed (at [22] to [26]) as follows in relation to assessing the compatibility of a proposed development with surrounding development: 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. - Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. - Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 1. In relation to the first of Commissioner Roseth's questions concerning the physical impacts of the Proposed Development, the Parties have agreed that the potential physical impacts of the Proposed Development have been fully mitigated, or where they have not, any residual impacts would not be such as to warrant refusal of the Applicant's development application. 2. Turning then to the former Senior Commissioner's second question concerning whether the Proposed Development's appearance is in harmony with the buildings around it, and the character of the street, I have already confirmed that: 1. the Proposed Development is compliant with the height of buildings control within THLEP (see above at [12(3)(a)]); 2. the town planning experts of the Parties had also agreed that the Applicant's proposed landscaping was acceptable (see above at [7(2)]) and would not be a reason to refuse consent to the Applicant's development application; and 3. the side setbacks in the Proposed Development are also acceptable (see above (at [32]), and the front and rear setbacks of the Proposed Development were not matters of contention in the appeal, and I am satisfied that these are also acceptable. 1. Based on these conclusions, I am satisfied that the Applicant's Proposed Development has satisfactorily addressed the principle factors identified in Project Venture as being the most important contributors to achieving compatibility of a development with the surrounding urban character. 2. Further, the Proposed Development is not located in a conservation area, thus removing a need to address any implications in architectural style and materials that may arise therefrom. 3. Notwithstanding the above points, the Respondent submitted that, although the Proposed Development complies with height of buildings development standard in cl 4.3 of THLEP (see above at [12(3)(a)]), it nevertheless did not achieve the objectives of that standard (see above at [12(3)]) concerning its compatibility with adjoining developments, notably the medium density developments to its north and located along Ackling Street. 4. I do not embrace this submission. 5. The height of building development standard is established to give effect to both of the height of buildings objectives in cl 4.3 of THLEP. It could be argued, and I would accept, that compliance with the standard ought to be sufficient to demonstrate achievement of the standard's objectives, particularly when the standard is expressed numerically, and compliance with the standard is established unequivocally. That is the case in this appeal. 6. Further, I am satisfied that the Proposed Development has explicitly achieved each of the objectives of the height of buildings development standard in cl 4.3 of THLEP because: 1. my observations during the site view, undertaken with the Parties at the commencement of the hearing, enables me to conclude that the built form of adjoining developments, and the overall streetscape of the area, is eclectic, and the Respondent confirmed that this was common ground in his closing submissions; 2. as there is no singular architectural narrative within the local area of the Subject Site I am satisfied that the Proposed Development is compatible with the overall streetscape of the local area; 3. as the Applicant has, in my assessment, minimised any potential impacts of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas, including in relation to the adjoining properties on Ackling Street, I am further satisfied that the Proposed Development is compatible with the overall streetscape of the local area. 1. As a consequence of my findings and conclusions above at [47] to [54], I conclude that: 1. the Proposed Development is compatible with the local character and surrounding streetscape of the Subject Site; and 2. the Proposed Development is compliant with the provisions of section 3.2 of the Guideline. Conclusions 1. As a consequence of my consideration of the experts' evidence, and the submissions of the Parties, I have concluded that: 1. for reasons provided above at [32], the setbacks of the Proposed Development, including the proposed side setbacks, are acceptable; 2. for reasons provided above at [42], the Applicant's proposed parking arrangements for the Proposed Development are acceptable; 3. for reasons provided above at [55], the Proposed Development is compatible with the local character and surrounding streetscape of the Subject Site. 1. Further, based on my conclusions above at [56], I am satisfied that: 1. the Proposed Development is compliant with the applicable provisions of THLEP, the Child Care SEPP, the Guideline and THDCP; and 2. approval of the Proposed Development, subject to conditions, is in the public interest. 1. The Parties provided differing draft conditions of development consent for my consideration. As the Applicant's proposed conditions of consent reflect my findings and conclusions in this appeal, I have decided that the Applicant's draft conditions should be imposed with the grant of consent. Orders 1. The orders of the Court are: 1. The appeal is upheld; 2. Development application DA 1231/2020/HA seeking consent for the demolition of all existing structures, vegetation removal and construction of a 90 place, three storey centre- based child care facility (the Proposed Development) at 98 Old Northern Road, Baulkham Hills is determined by the grant of consent, subject to the conditions of development consent provided at Annexure 'A'; 3. The exhibits are returned, with the exception of Exhibits B, E, 1 and 8. ..……………. M Chilcott Commissioner of the Court Annexure A (363139, pdf) ********** Amendments 30 April 2021 - Pursuant to UCPR r 36.17, and by consent of the parties, the Court amends Condition 6 of Annexure A, by replacing the number of children referred to in Condition 6 being "60" to "90". 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: 30 April 2021