Land and Environment Court New South Wales Medium Neutral Citation: Jarvis v Ku-ring-gai Council [2021] NSWLEC 1447 Hearing dates: 10-11 June 2021 Date of orders: 4 August 2021 Decision date: 04 August 2021 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [107] Catchwords: DEVELOPMENT APPLICATION – State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 – adaptive reuse of local heritage item – heritage conservation area – consideration given to child care planning guidelines Legislation Cited: Education and Care Services National Regulations, cl 115 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act, s39 Environmental Planning and Assessment Regulation 2000, cl 55 Ku-ring-gai Local Environmental Plan 2015, cll 5.10, 6.1, 6.2, 6.3, 6.5, Sch 5 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 cll 23, 26 Texts Cited: Building Code of Australia NSW Department of Planning and Environment, Child Care Planning Guideline, (2017) Ku-ring-gai Development Control Plan 2016 Category: Principal judgment Parties: Martin Jarvis (First Applicant) Min Jarvis (Second Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: J Farrell (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2020/204174 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by the Ku-ring-gai Local Planning Panel on behalf of Ku-ring-gai Council (the Respondent) of Development Application DA 0195/19 for change of use of an existing heritage listed dwelling to an 84 place child care centre including a single storey addition (with attic plant room) and basement parking for 21 vehicles at 8 Lorne Avenue, Killara (the site). The application is amended 1. At the outset of the hearing, the Applicant sought leave to amend the application and rely upon amended plans and other documents contained in a folder marked 'Applicant's Additional Material' that had been filed and served on 8 June 2021. 2. According to the Applicant, the amendments remove an arbor from the front yard of the site that had not been the subject of joint conferencing between the heritage experts, and amends the arrangement of acoustic fencing to the western boundary adjoining No 10 Lorne Avenue. 3. While the Respondent acknowledged the limited scope of the amendments, the late issue of the amendments served to prevent consideration by the experts of the application now before the Court prior to the proceedings. 4. With the extent of amendments so understood, the Court, standing in the shoes of the Respondent as consent authority, agreed to the amendment of the development application on the basis of the amended plans and other documents contained in the 'Applicant's Additional Material', later marked Exhibit C, and invited the Respondent's planning expert to provide a summary opinion of the changes as understood at the commencement of the oral evidence of the planning experts that was planned for the second day of the hearing. 5. According to Exhibit 4, the planning experts conferred on plans marked Exhibit C in the preparation of the joint expert report filed with the Court on 2 June 2021. The Applicant subsequently prepared Revision D and E plans, requiring further consideration by the experts. While individual aspects of the amendments may be minor, I consider the cumulative result of the amendments contained in Revision E drawings to warrant the grant of costs thrown away in accordance with s 8.15(3) of the EPA Act. The site and its context 1. The site is located on the southern side of Lorne Avenue, and is legally described as Lot A in DP 335610. 2. The site rises from the street frontage towards the rear of the property, and has a frontage of 36m to Lorne Avenue and a total site area of 2,522m2. 3. An existing single storey dwelling, known as 'Windermere', currently occupies the site, with substantial front and rear landscaped setbacks of mature vegetation, including a large eucalypt at the southwest corner of the site that is identified as a part of the endangered Blue Gum High Forest. 4. A wide brick driveway connects the street frontage to a double carport and garage that is located on the boundary and set back from the building line. 5. A single storey detached dwelling adjoins the subject site to the east at No 6 Lorne Avenue that is listed as a heritage item of local significance. 6. A surface car park associated with the nearby Killara train station adjoins No 6 Lorne Avenue, further to the east and continues behind the subject site. 7. A two-storey detached dwelling adjoins the subject site to the west at No 10 Lorne Avenue that is also listed as a heritage item of local significance. 8. The site is located within the R2 Low Density Residential zone pursuant to the Ku-ring-gai Local Environmental Plan 2015 (KLEP), in which Child Care Centres are permitted with development consent, and wherein the objectives of the R2 zone are in the following terms: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai. 1. The site is also identified in Schedule 5 of the KLEP as an item of local heritage significance, and is within the Marian Street heritage conservation area (Marian HCA). Expert evidence 1. As the matters in contention are primarily focused on heritage and planning, the Court was assisted by the following joint expert reports: 1. In respect of heritage, Mr Leona Goldstein, for the Respondent, and Mr Stephen Davies, for the Applicant, conferred in the preparation of the joint expert heritage report marked Exhibit 3. 2. In respect of town planning, Mr Luke Marquet, for the Respondent, and Ms Naomi Daley, for the Applicant, conferred in the preparation of the joint expert planning report marked Exhibit 4. 1. The Applicant also relies upon an acoustic report prepared by Acoustic Logic, dated 31 May 2021, that is annexed to Exhibit 4, and was separately entered as Exhibit D. Public submissions 1. Public submissions are found behind Tab 4 of the Respondent's bundle of documents marked Exhibit 1, and the nature of concerns expressed in those submissions may be summarised as follows: * Traffic congestion in and around Lorne Avenue, given its proximity to Killara railway station. * Noise pollution and litter. * Over development of the site. 1. I also record here that a number of submissions are in support of the proposal, including residents at 10 and 14-16 Lorne Avenue. 2. As well as providing a written submission (Exhibit 3, folio 14), the owner of a property to the rear of the subject site, at No 14 Marian Street, was granted leave to also provide an oral submission at the commencement of the hearing, that may be summarised as follows: * There are only 4 heritage-listed homes in Lorne Avenue, and it is important to preserve what is there. * The extent of excavation required for the basement car park places the integrity of the dwelling on the subject site at risk of structural damage * The proposal will alter the character and purpose of the immediate area, and result in greater traffic congestion and noise. The application of the Child Care SEPP 1. In opening submissions, Mr Farrell, counsel for the Applicant, submits that the effect of cl 26 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP) is to displace certain provisions contained within the KDCP. 2. Clause 26 of the Child Care SEPP is 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. In particular, Mr Farrell considers the reference at cl 26(1)(d)(i) and (ii) to the Child Care Planning Guide (Guideline) to be supported by statements found in the Guideline itself. 2. On a table contained on p3 of the Guideline (Exhibit 1, folio 145), the following advice is provided to proponents and consent authorities: "The provisions of the Child Care Planning Guideline will generally take precedence over a DCP, other than building height, side and rear setbacks and car parking rates." 1. I record here that I do not read the Guideline as setting aside the heritage provisions at Part 19 of the Ku-ring-gai Development Control Plan 2016 (KDCP). In arriving at my conclusion, I am assisted by the text in the Guideline itself. 2. In Part 2 of the Guideline, to which cl 26(1)(d)(i) refers, design quality principle 1 – Context, states: "Good design responds and contributes to its context, including the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions. Well-designed child care facilities respond to and enhance the qualities and identity of the area including adjacent sites, streetscapes and neighbourhood. Well-designed child care facilities take advantage of its context by optimising nearby transport, public facilities and centres, respecting local heritage, and being responsive to the demographic, cultural and socio-economic makeup of the facility users and surrounding communities." 1. Part 3 of the Guideline contains matters for consideration, to which cl 26(1)(d)(ii) refers. Consideration 3.2 deals with Local character, streetscape and the public domain interface. Control C5 states: "Objective: To ensure that the child care facility is compatible with the local character and surrounding streetscape. C5 The proposed development 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. In Part 2, Principle 1, I read the Guideline as encouraging the design of child care facilities to 'respond and contribute to its context', and 'enhance the qualities and identity of the area including adjacent sites, streetscapes and neighbourhoods'. 2. In Part 3 of the Guideline, I read the objective of Consideration 3.2 to encourage facilities that 'ensure the child care facility is compatible with the local character and surrounding streetscape. 3. I read Control 5 to advise that a facility should 'contribute to the local area by being designed in character with the locality and existing streetscape', and to 'recognise predominant streetscape qualities' and also to 'include design and architectural treatments that respond to and integrate with the existing streetscape'. 4. In each case, I find the Guideline encourages a proponent to identify those particular aspects of the local context, character, streetscape and the like to which the design of a proposed development should respond. 5. In this case, the subject site is located within the Marian HCA and is identified as an item of local heritage significance. Part 19 of the KDCP deals with heritage items and conservation areas. The impact of the proposed development on heritage significance 1. The Respondent contends that the proposed development offends a number of the objectives and controls within the KDCP and will have considerable adverse impact on the significance of the heritage item "Windermere", and on the significance of the Marian HCA. 2. In particular, the proposal is for the partial demolition of the heritage item, to which Part 19B.2 of the KDCP applies, and its adaptive reuse, to which Part 19E.2 of the KDCP applies, and where alterations and additions are proposed to which Part 19E.1 of the KDCP applies. 3. Additionally, the proposed development includes works in the curtilage of the heritage item that impact the garden setting in a manner that is inconsistent with the objective and controls of Part 19C.3 of the KDCP, will alter the setting and continuity of the group contrary to Part 19F.1 Control 2(vi) of KDCP, and which proposes an access and parking arrangement that offends Part 19C.4 of the KDCP. Impacts on the dwelling 1. At this point it is helpful to set out the statement of significance for the heritage item that appears on p6 of the joint heritage report and on which the heritage experts are agreed: "Windermere is of local heritage significance for its historic, associative, aesthetic and representative qualities. The subject site was part of the Lorne Estate subdivision of 1899, representing the second subdivision of one f the Crown grants within Killara, being Booker's 80 acres. Windermere was constructed in c1918 and retain its original composition. It has historic significance at a local level as it provides evidence of the development of Killara as a garden suburb in the early 20th century which was a major phase of development in the local area. The subject dwelling was likely constructed by the prominent Sydney architects Morrow and De Putron. The pair constructed several grand buildings in Sydney including Babworth House, Darling Point and Bay House, Ultimo. The subject site is a fair example of their professional work. The subject dwelling has aesthetic significance at a local level as a fine example of an inter-war bungalow set in a garden landscape. The building is substantially intact and retains key features of its style including its sandstone base, verandah and sunroom, face brickwork, tessellated tiles, lead lighting, timber joinery, complex low roof form with multiple gables, wide eaves and exposed roof timbers. These feature give the dwelling representative value as they display the principal characteristics of an important class or group of items, being an inter war bungalow. Further, the dwelling contributes to the local streetscape and wider conservation area. Windermere is of local heritage significance for its historical, associative, aesthetic and representative qualities." 1. The heritage experts agree the existing heritage listed dwelling is an outstanding example of a Californian Bungalow. 2. The experts also agree on the grading of significance for the dwelling, prepared by Mr Davies and marked Exhibit E, and are further agreed that the proposal does not remove fabric graded as being of high significance, and proposes the modification of fabric in the form of six doorways graded as moderate significance (Exhibit J). 3. The Respondent identifies impacts on both the exterior and interior of the existing dwelling that are adverse to the heritage significance of the item, and which arise from the excavation associated with basement carparking, the use of the front setback for outdoor play, and due to proposed uses that will damage the fabric of the dwelling. 4. As I understand Ms Goldstein's oral evidence, the extent of excavation required for the basement carparking results in the demolition of a rear portion of the existing dwelling, and the Applicant has failed to demonstrate alternatives to demolition as required by Part 19B.2 (3)(iii) of the KDCP. 5. Ms Goldstein also expressed concern at whether excavation can be undertaken without inadvertent damage to the existing dwelling, and the sandstone footings in particular, that are expressly identified as a feature of the heritage item in the statement of significance. 6. It is also important to state here that while the contentions in Exhibit 5 clearly refer to the provision at Control C1 of Part 19E.2 of KDCP which deals with adaptive reuse by reference to cl 5.10(10) of the KLEP, the parties agree that the application does not seek the benefit of the incentives contained in cl 5.10(10) of the KLEP which is the subject of the control, and so the control has no work to do. 7. Ms Goldstein acknowledges the Control does not apply, and amended her evidence to state that the term 'adaptive reuse' was not used in the manner of the Control, despite being so worded in Exhibit 5, but rather as a general descriptor of the application. 8. Ms Goldstein is also concerned that the extent of slab over the basement carpark precludes landscaping from growing over the majority of the rear yard which is inconsistent with the Marian HCA and contrary to Part 19C.3 of the KDCP. 9. Mr Davies agrees the excavation is major in scale, but notes that the focus of the controls in the KDCP is on the street frontage, and front setbacks, and the effect of the basement on the rear yard will be to create a large flat area above, which is similar to the landscape form evident today, and which cannot be overlooked from outside the property. 10. At the front of the subject site, the Respondent considers the driveway ramp providing access to the basement carpark to be uncharacteristic of the area, alien to the heritage items between Nos 6-16 Lorne Avenue, and evident to anyone either from the street or when in the property approaching the existing dwelling. 11. Similarly, the proposal seeks to fence the open area of lawn in the front setback for outdoor play area with palisade fencing that is screened with low planting. This will enclose an area that is currently open, and viewed from the street as part of the setting of the heritage dwelling. 12. Ms Goldstein identifies certain lines on the elevation drawing at A201 (Exhibit C, Tab 2) that suggest the opening to the basement ramp would be visible from the driveway entry, while the Applicant relies on a sightline drawing at D301 to demonstrate that the incline in the driveway masks the basement ramp from being visible. 13. On this point, I accept the Applicant's submission that the sightline drawing is appropriate to rely on because the elevation is an artificial view of the proposed development illustrating the proposal 'square on', and unaffected by the particular topography of the site. In reality, the view will be from a lower viewpoint than that depicted on the elevation. The rise of the driveway, and locating of the basement ramp beyond the 'crest' suggests the ramp entry cannot be seen from the street frontage. 14. That said, Ms Goldstein's concerns are also that outdoor play areas, and possibly play equipment, will be visible in the frontage, and at Outdoor area 5 which is located over the basement ramp to the western side setback. 15. In her oral evidence, Ms Goldstein acknowledges the acoustic fencing to the western boundary is unlikely to be a significant feature of the view of the property when viewed from the driveway entrance, which is the viewpoint identified by Ms Goldstein as the position of most concern. 16. It is from this location that Ms Goldstein also believes the palisade fencing proposed on either side of the driveway leading from the street narrows the driveway. 17. Mr Davies considers the palisade fencing to be largely screened by landscape planting, and of a height to avoid obscuring the view of the dwelling from the street. The result is not distinct or incompatible with the stepped landscape form of No 14-16 Lorne Avenue that interrupts an otherwise open lawn area. 18. The experts agree that the removal of the arbor previously proposed in the front setback of the property, and now shown deleted in Rev E plans (Exhibit C, Tab 2), is preferable given its prominence when viewed from Lorne Avenue, and results in a more limited extent of acoustic fencing to the west boundary. 19. The Applicant provided a detailed drawing of the palisade fence on the second day of the hearing (Exhibit H) that Ms Goldstein stated was 'OK'. 20. In considering the effect of the works proposed to the front setback, it is relevant to consider the statement of significance for the Marian HCA which is in the following terms (Exhibit 1, folio 266): "The Marian Street Heritage Conservation Area is of high local historic and aesthetic significance as a good and largely intact residential precinct characterised by streetscapes of good, high quality examples of single detached houses from the Federation, Inter-war and Post war periods. The built context is enhanced by large garden settings, wide street proportions, street plantings and remnant and planted native trees; elements which are synonymous with the Ku-ring-gai area. The early grant boundaries, estates and subdivision pattern significantly remain visible in the current layout and pattern of development and late 19th and early to mid 20th century building stock retains a high level of integrity. The early development is also overlayed by later land subdivisions and some consolidation and later development, which reflect changes in the wider rail and road networks and ongoing evolution of the local and wider area. The area substantially retains the original vision for the area with emphasis on residential, recreational and cultural development." 1. According to the Applicant, it is also relevant to consideration of the impact on the Marian HCA that the proposed facility will not operate on weekends or public holidays. Internal impacts 1. Ms Goldstein is concerned that the change of use from a dwelling to a child care facility will result in wear and tear from children in the facility on the heritage fabric of the dwelling. 2. The Applicant proposes to apply clear acrylic panels to certain doors, windows and the like. The location of treatment is shown on Exhibit J, and the means of fixing of the protective panels is shown in Attachment C of the joint report at Exhibit 3. 3. The Applicant submits that the acrylic panels are fixed to particular recesses formed in the existing timber architraving around doors and windows, will not cause damage and are reversible given the means of fixing is via magnets. 4. Ms Goldstein's opinion is that the proposed protective barrier to be applied to the heritage fabric of the dwelling, including the leadlight doors, windows and the like, will be reflective and so distort appreciation of the original heritage fabric. 5. Ms Goldstein also considers it likely that the existing hardwood floors will be scratched through use, and that damage to walls and timber detailing may result from objects thrown by children in the indoor play areas. 6. The Applicant considers the modifications to the fabric of the heritage dwelling to be thoughtful, minor, and reversible, and relies upon the Child Care Plan of Management (Exhibit C, Tab 8) which sets out the supervision of children by carers as evidence that the risk of damage is mitigated, and that provisions found within Part 19E.1 of the KDCP, Control 12 which applies where original materials, finishes and details are to be retained, as is proposed, and for their repair using traditional techniques. 7. After consideration of all of the evidence before me, and with the assistance of written submissions prepared by the parties, I accept the Applicant's submission that the proposed development has been designed with the heritage significance of the site in mind, and for the following reasons I conclude that the proposed development will not impose an adverse impact on the heritage item, or the Marian HCA: 1. Firstly, I prefer and accept Mr Davies' evidence which is founded on the grading of heritage significance evident in the existing heritage dwelling, that has informed the function of spaces within the proposal, and the particular areas of intervention which I accept are limited and largely reversible. 2. Secondly, where demolition and excavation is proposed, I accept it results in the removal of fabric that the experts agree is of lesser heritage significance, is not visible from the public domain, and that allows, in the case of the existing carport and garage, an enhanced understanding of the original heritage fabric to the western elevation. 3. Thirdly, in my view the alterations and additions adhere to the hierarchy and geometry of the existing dwelling evident, taking cues from the existing plan arrangement of central circulation, and integrating functions such as entry and lift access in a considered and sensitive manner, consistent with Part 19C.1 of the KDCP which seeks similar massing, style, form, proportions and arrangement of parts to the building itself, and is sympathetic in terms of bulk, form, style, character, scale, and materials which is an objective of Part 19E.1 of the KDCP. 4. Fourthly, I accept Mr Davies' oral evidence that the internal fabric of the existing dwelling is robust and I consider the proposal by the Applicant to apply a protective acrylic barrier to leadlight features to be an appropriate means of retaining an understanding of heritage fabric within the context of adaptive reuse. 5. Fifthly, I prefer the Applicant's description of the potential impact of the ramp access to the basement car parking. On the basis of the onsite view, I agree that the viewpoint diagram at drawing A301 more accurately represents the sightline from the Lorne Avenue frontage and, for the reasons stated at [49], I consider the elevation referred to by Ms Goldstein to be an unreliable representation given the topography. The opening formed by the basement ramp will not be visible from the street. 6. Sixthly, I have considered the extent and detailing of the palisade fencing proposed, and the landscape planting proposed in the front setback. While I consider the landscaping likely to result in a more dense barrier than the arrangement seen in the front setback of No 14-16, I note the landscape planting is varied, and unlikely to grow to a height that will inhibit an understanding of the front setback as an open area, and will, in my judgment, preserve a view to the heritage dwelling from the viewpoint identified by Ms Goldstein. I consider the nature and extent of landscape planting to be reasonably consistent with the landscape character described in Part 19C.3 of the KDP, and not inconsistent with the statement of significance at [36] which provides only a general reference to the garden setting, with no particular features or elements identified that are proposed to be removed or modified. Where the palisade fence is visible, I am satisfied that the detailing shown in Exhibit H is consistent with the design guidance, and Figure 11 set out at Section 4.12 of the Guideline. 7. Finally, with the exception of palisade fencing and landscaping in the front setback, the proposed development is almost entirely behind the line of the existing carport garage, comprising a built form that integrates well into the existing overall form of the dwelling and its landscape setting. The custom design of the palisade fencing in the front setback is, in my view, finely detailed and suited to a landscape setting dominated by low screen planting. I accept Mr Davies' opinion that the result will not detract from the heritage values of the item and I consider, at worst, the fencing and landscape treatment is reversible. 1. While my preliminary view is that the proposal has considered the heritage significance of the heritage item at the subject site in an appropriate manner, cl 23 of the Child Care SEPP requires the Court to take into consideration applicable provisions of the Guideline before determining the application before the Court. 2. According to the Respondent, the applicable provisions are found in Part 3 of the Guideline, comprising 38 matters for consideration (identified as C1-C38), set out under the following relevant sections: * Section 3.1 – Site Selection and Location. * Section 3.2 – Local character, streetscape and the public domain interface. * Section 3.3 – Building orientation, envelope and design. 1. When considered cumulatively, the Respondent submits that the matters for consideration point to a heritage dwelling being unsuitable as the site of a child care facility. Site Selection and Location 1. In respect of consideration C1, Mr Marquet for the Respondent accepts that acoustic privacy has been substantially addressed, but considers the extent of the rear addition alters the setbacks and siting in an R2 zone, and cites resident objections to traffic and parking impacts of the proposal on residential amenity. 2. In respect of consideration C2, Mr Marquet believes the proposal is incompatible with adjoining dwellings that are collectively a part of a heritage conservation zone that is not subject to change, despite a change in zoning and character in the R4 zone opposite the site. Local character, streetscape and the public domain interface 1. In respect of consideration C5, Mr Marquet believes the scale of the basement carpark does not lend itself to reverting to a residential dwelling, but is only suited, should the child care facility fail, to other uses that would also place at risk the integrity of the heritage fabric. 2. Ms Daley is of the view that planning considerations do not extend to whether it is necessary for a former use to be reinstated, but are focused instead on whether the merits of the application before the Court warrant the grant of consent. 3. The Applicant submits that integration of carparking into the building, as one element in the consideration, is evident in the integration of lift access between the basement carpark and the existing heritage dwelling. 4. In respect of consideration C9, Mr Marquet accepts the proposal does not include change to the front brick fence, but does provide for a new palisade fence that will adversely impact the front setback of the subject site. Building orientation, envelope and design 1. In respect of consideration C11, Mr Marquet believes that as a number of outdoor play areas are located in the side setbacks, the proposal fails to locate outdoor play areas away from residential dwellings and, by virtue of the scale of excavation required by the basement car parking, fails to observe prevailing setbacks (the subject of consideration C14), and fails to minimise cut and fill on the site. 2. The Applicant submits that the location of carparking to the rear of the site is considered, is preferable to be located underground and not visible where areas of hardstand are required. 3. Ms Daley considers the impact of outdoor areas on adjoining properties to be appropriately mitigated by acoustic fencing, and by the Plan of Management (Exhibit C, Tab 8) which limits the number of children in outdoor areas adjacent to side boundaries, and which are, in the case of the eastern side setback, predominately for 'passive play'. 4. In respect of consideration C15, Mr Marquet believes the extent of demolition proposed, and the level of 'retro-fitting' required to a heritage item that has otherwise been well preserved has an adverse effect on the site that is unacceptable. 5. In the alternative, Ms Daley is of the view that a concerted effort has been made to retain heritage fabric, and modification is limited to areas identified as having lesser significance, and to the rear of the site. 6. In respect of consideration C17, Mr Marquet considers the access arrangements for Outdoor Play area 4 to be inadequate when travel distances between indoor spaces and the front setback are factored, and where the path of access is not direct, but is through other play areas. 7. Relatedly, the Respondent identifies a number of non-compliances with clause 3.1 of the Building Code of Australia (BCA) for which alternative solutions are required, as set out in the Performance Solutions Report prepared by AI Access, dated December 2020 (Exhibit B, Annexure N). These alternative solutions are said to be required to mitigate against the deficiencies inherent in a heritage dwelling being used for a child care facility. 8. Ms Daley describes the path required to be taken by children moving from Indoor Play area C to Outdoor Play Area 2 or 3, and likewise, from Indoor Play Area D to Outdoor Play Area 5. 9. Also related to the movement of children is the manner of their supervision which is the subject of Section 4.7 of the Guideline, and of Regulation 115 of the Education and Care Services National Regulations (the Regulations) contained at Exhibit 1, Tab 15). 10. Regulation 115 is in the following terms: Premises designed to facilitate supervision The approved provider of a centre-based service must ensure that the education and care service premises (including toilets and nappy change facilities) are designed and maintained in a way that facilitates supervision of children at all times that they are being educated and cared for by the service, having regard to the need to maintain the rights and dignity of the children. 1. Indoor Area C is in the form of two rooms, linked by a doorway that is proposed to be widened and that the Applicant submits facilitates the supervision of children in both spaces by the two carers required by the room capacity of seven (7) children. 2. To the extent the Court considers it necessary, the Applicant submits that the use of mirrors between the rooms may further assist supervision of children in the spaces. 3. Mr Marquet cites the diagrams found in Section 4.7 of the Guideline as evidence that the existing heritage fabric is unsuitable for use as a childcare facility. In particular, effective supervision is not possible from common areas due to existing solid walls that prevent openings for surveillance into play rooms. 4. According to Ms Daley, informal surveillance from common areas is no substitute for direct supervision by educators and carers who are present and attentive within play areas, consistent with chapter 13 of the Plan of Management. 5. The 'L' shape formed by the two rooms that comprise Indoor Play Area C appears to answer the description of a multi-room activity room that may include hidden corners. This may pose a challenge to supervision of children in these rooms. However, I do not consider the challenge a significant or insurmountable one. I consider the opening between the two spaces to facilitate supervision that is ultimately a responsibility of the provider of the child care facility to ensure in complying with cl 115 of the Regulation. 6. I accept Ms Daley's evidence that passive surveillance, while suggested in Figures 5, 6 and 7 of the Guideline, is not the subject of the text in cl 115 of the Regulation, or of Section 4.17 of the Guideline. In the case of Indoor Area C, the children are aged 0-2 years old, requiring active supervision from educators and carers who are physically present and attentive to the children in the room. That said, I note the opening proposed between the kitchen and Indoor Play area C allows a degree of passive surveillance from the member of staff in this space. 7. I also note that compliance with the requirement for supervision at cl 115 is, according to the note contained in the provision, subject to compliance direction being issued by the Regulator in the event of failure to comply. In this way, I regard the matter to be one of operational compliance that is capable of being achieved, and is subject to review under the terms set out in the Regulation. 8. For this reason, and after considering the Supervision Policy at Chapter 13 of the Childcare centre Plan of Management (Plan of Management) (Exhibit C, Tab 8), it is my view that installation of a mirror or mirrors referred to at [85] may only serve to promote passive surveillance of children, and not the "active supervision" that is said, on p8 of the Plan of Management, to be "key to keeping infants and toddlers safe". 9. I have taken into consideration those matters at Part 3 of the Guideline that the Court must take into consideration before determining a development application, and I conclude that the matters contained in Sections 3.1, 3.2 and 3.3 are satisfactorily addressed in the application. 10. For the reasons set out [64], I consider the proposed development compatible with the adjoining properties, and the wider locality that includes a commuter carpark servicing the Killara train station. 11. Co-location of a child care facility in a residential zone with commuter parking, and close proximity to train services appears advantageous where acoustic and privacy impacts to surrounding properties are addressed, as they are in this case. 12. I also consider access arrangements on the site to effectively and sensitively link all key areas of the site by a combination of level and ramped pathways that are accessible to prams and wheelchairs, and which make designated play areas accessible. 13. On the basis of the Traffic Impact Assessment prepared by TTPA dated October 2018 at Exhibit A, I am also satisfied that traffic and parking impacts on residential amenity have been considered. I also note that the modelling undertaken in the report was for 27 car spaces, and 21 car spaces are now proposed. 14. While I acknowledge the basement car park is unlikely to be removed in the future, I do not consider its impact to be inherently adverse on the site. The location of the entry ramp is not visible from the street, integration of vertical access between the carpark and existing heritage dwelling is well considered, and setback from the boundary allows perimeter landscaping. 15. I accept Mr Davies' opinion that the impact of the slab over basement carpark on the rear setback constrains landscaping in a similar manner to that currently evident on the site. Importantly, there is no contention as to the impact on the significant tree, marked T22, and perimeter landscaping is proposed between boundary and extent of the basement. The result, in my view, is no different to a rear tennis court or large area of lawn with perimeter planting. 16. In relation to those concerns held for the structural integrity of the existing structure, I accept the conclusion of the Structural Management Plan prepared by Geotron engineering consultants dated 17 May 2021 (Exhibit C, Tab 9), which is, in summary, that adoption of the Concept structural drawings contained in Appendix B will result in low risk of damage. 17. For the reasons set out on p 10 of the Geotechnical investigation report prepared by geo-environmental dated 3 December 2021, I also accept that due to the elevation of the site, and extent of excavation proposed, an acid sulfate soils assessment or management plan is not required as otherwise provided at cl 6.1 of the KLEP. 18. On the same basis, and after also considering the Geotechnical investigation report prepared by geo-environmental dated 3 December 2021 (Exhibit B, annexure R), and the stormwater management plans (Exhibit B, annexure D), I consider the matters at cl 6.2(3) of the KLEP in respect of earthworks to be satisfactorily addressed. 19. The stormwater management plans are also the basis for my satisfaction in respect of cl 6.5 of the KLEP. In arriving at this state of satisfaction, I note the area of pervious surface on the site is in the order of 40% of the total site area, and reuse of rainwater, and on-site detention of water is proposed. 20. As stated at [96], it is agreed that T22, which is a remnant species of the endangered Blue Gum High Forest, will be retained and protected. I have considered the conclusions reached in the Aboricultural Assessment prepare by Ms Elke Haege dated 16 November 2018 (Exhibit A, Tab L) in respect of T22, and those recorded in the Arboricultural Impact Assessment prepared by Lee Hancock dated 6 February 2021 (Exhibit B, annexure J) and I am satisfied at the biodiversity protection in accordance with cl 6.3 of the KLEP. 21. 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 Geotechnical investigation report prepared by geo-environmental dated 3 December 2021, and the summary provided at Section 5.1.2 of the Statement of Environment Effects (Exhibit A, tab C), I am satisfied that the site is not contaminated. 22. As I am satisfied in respect of those jurisdictional prerequisites of relevance in these proceedings, and of the merit issues in dispute, I find that the grant of consent is warranted in accordance with s 4.16 of the EPA Act. 23. I also note that without prejudice draft conditions of consent were agreed between the parties and filed with the Court on 29 June 2021. Orders 1. The Court orders that: 1. The Court, exercising under s39(2) of the Land and Environment Court Act 1979 the function of the Ku-ring-gai Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending the development application DA 0195/19 in accordance with plans and other documents at Exhibit C. 2. The Respondent, Ku-ring-gai Council, as the relevant consent authority, is to lodge the amendment of the development application in the NSW planning portal within 7 days of the date of this order and notify the Applicant after it has been lodged. 3. The Applicant is to file a copy of the amended application within 7 days after the Respondent has notified the Applicant that the amendment has been lodged on the NSW planning portal. 4. In the event the Respondent is unable to lodge the amended application on the NSW planning portal as directed at (2) above, the Respondent is to notify the Court via Online Court as soon as possible but no later than 14 days after the date of the order and request the matter to be relisted for further directions. 5. In the event that (2) and (3) above are complied with, the Applicant is to pay the Respondent's costs thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. 6. The appeal is upheld. 7. Development consent for Development Application DA 0195/19 for change of use of an existing heritage listed dwelling to an 84 place child care centre including a single storey addition (with attic plant room) and basement parking for 21 vehicles at 8 Lorne Avenue, Killara is granted, subject to the conditions of consent at Annexure A. 8. All exhibits are returned, except for exhibits A, B, C, E, H, J. ………………….. T Horton Commissioner of the Court Annexure A (372841, pdf) ********** 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: 04 August 2021