Land and Environment Court New South Wales Medium Neutral Citation: Nile Street Pty Ltd ATF The Kearneys Drive Trust v Orange City Council [2022] NSWLEC 1202 Hearing dates: 8 March 2022 Date of orders: 19 April 2022 Decision date: 19 April 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that: (1) The appeal is upheld (2) Development application No. 284/2020 seeking development consent for demolition of existing structures and construction of a single storey child care centre at 4 Kearneys Drive Orange legally described as Lot A in DP 365443 is determined by the grant of consent subject to conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPEAL – child care centre – streetscape and design - acoustic impacts – traffic and parking - orders Legislation Cited: Education and Care Services National Regulations 2011, ss 107, 108 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Interpretation Act 1987, s 30A Orange Local Environmental Plan 2011, cll 7.1, 7.3, 7.6, 7.11 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy (Industry and Employment) 2021, Ch 3. s 3.6. State Environmental Planning Policy No. 55—Remediation of Land, cl 7. State Environmental Planning Policy No 64 – Advertising and Signage State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3. s 3.22, 3.23, 3.26, Texts Cited: Child Care Planning Guideline 2017 Orange Development Control Plan 2004 Category: Principal judgment Parties: Nile Street Pty Ltd ATF The Kearneys Drive Trust (Applicant) Orange City Council (Respondent) Representation: Counsel: T Howard SC (Applicant) M Cottom (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2021/190121 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of a development application No. 284/2020 seeking development consent for demolition of existing structures and construction of a single storey child care centre (the Proposed Development) at 4 Kearneys Drive Orange legally described as Lot A in DP 365443 (the Site). 2. A number of resident objectors addressed the court and a copy of all written submissions received by the Respondent were tendered as part of the Respondent's Bundle of Documents filed 24 February 2022 (Exhibit 7). The concerns raised relate to traffic and parking, acoustic impacts in a residential area and the overall character of the residential street. 3. The parties relied on and the Court was assisted by the following expert reports: 1. Joint Acoustic Expert Report prepared by Michael Chung for the Applicant and Graham Atkins for the Respondent filed 16 February 2022 (Acoustic JER) (Exhibit 3) 2. Joint Planning Expert Report prepared by Anthony Betros for the Applicant and Kerry Gordon for the Respondent filed 28 January 2022 (28 January Planning JER) (Exhibit 2) 3. Joint Expert Planning Report prepared by Anthony Betrow and Kerry Gordon filed 28 February 2022 (28 February Planning JER) (Exhibit 4) 4. Joint Expert Planning Report prepared by Anthony Betros and Kerry Gordon filed 7 March 2022 (7 March Planning JER) (Exhibit 5) 1. On 2 March 2022 the Applicant was granted leave to rely on amended plans and documents in accordance with the consent by the Respondent as the relevant consent authority to the amendments pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 and the Applicant was directed to upload the amended plans and documents onto the NSW Planning Portal and to file them with the Court. 2. The Court notes that the following documents were uploaded by the Applicant onto the NSW Planning Portal on 4 March 2022: 1. Amended architectural plans (Revision E) prepared by Creative Drafting Services dated 6 February 2022; 2. Amended Supplementary Plan of Management prepared by ABC Planning dated February 2022; 3. Geotechnical excavation assessment prepared by Martens & Associated dated 1 March 2022 and filed with the Court on 4 March 2022. 1. On the day of the hearing the Applicant sought and was granted leave to rely on Amended architectural plans (Revision F) prepared by Creative Drafting Services (Exhibit C) and Plan of Management dated 7 March 2022 (Exhibit D). 2. The Court notes that: 1. Orange City Council as the relevant consent authority has agreed, under cl 55 (1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application No. 284/2020 filed with the Court on 2 July 2021 by Amended architectural plans (Revision F) prepared by Creative Drafting Services (Exhibit C) and Plan of Management dated 7 March 2022 (Exhibit D); 2. The amended development application was uploaded onto NSW Planning Portal on 8 March 2022; and 3. The Applicant filed a copy of the amended development application with the Court on 8 March 2022. 1. The parties agree on the Draft/Proposed Conditions of Consent filed 8 March 2022 (Exhibit 8). 2. As a result of the evidence of the acoustic and town planning experts (Exhibits 2, 3, 4, and 5), the amended Revision F architectural plans (Exhibit C) and the agreed Draft/Proposed Conditions of Consent (Exhibit 8), the parties agree that all contentions set out in the Amended Statement of Facts and Contentions (ASOFAC) filed 21 January 2022, have been resolved. The Respondent neither consents to nor opposes the Proposed Development and the Court is tasked with making its determination on the Development Appeal based on the merits in accordance with the evidence before the Court. 3. The Applicant's case is that the Proposed Development is permissible with consent in the R1 – General Residential Zone of the Orange Local Environmental Plan 2011 (OLEP), it complies with the Child Care Planning Guideline 2017 (Guidelines) (relying on the Education and Childcare compliance table in the Addendum Statement of Environmental Effects dated November 2021, (Ex B)) and is responsive to the concerns raised (overshadowing by the hedge and landscaping) and accordingly development approval should be granted by the Court. The Applicant provided a Jurisdictional Note as an aide memoir which is consistent with the Respondent's opening statement as to the satisfaction of the jurisdictional prerequisites. 4. The original proposal, as lodged with the Council on 31 July 2020, sought approval for the demolition of existing structures and construction of a new one storey childcare centre (Centre) for 61 children with associated parking on the Site for 14 cars proposed at grade between the proposed building and Kearneys Drive frontage. 5. On 25 March 2021, an amended proposal was lodged reducing the proposed number of children to 52, reducing the size of the proposed building and proposing parking on the Site for 13 cars (still proposed to be at grade between the proposed building and the Kearney's Drive frontage). This amended proposal was recommended for approval by Council staff, but was refused by the Council on 6 July 2021. 6. The Applicant commenced the Class 1 proceedings on 2 July 2021 (when it became evident that the Council would refuse the DA at its meeting of 6 July 2021). 7. Responsive to issues raised by the Council and objectors, the development application was amended with the leave of the Court granted on 10 December 2021, so as to propose car parking at basement level beneath the Centre. The amended proposal also sought to increase the capacity of the Centre increased to 72 children and changed the design of the proposed building. 8. Further minor changes, responsive to matters raised by the Council's acoustic and planning consultants, have been made by way of further recent amendments to the development application, the subject of leave granted by the Court on 4 March 2022. 9. Subsequently, on 7 and 8 March 2022, further minor changes were made to the Proposed Development to address certain matters raised by the Council's consultant planner as set out in the Second Supplementary Joint Report of Planning Experts (and to include a further detail in Drawing A1.04 of the ceiling level of that part of the building in respect of which the floor had been lowered in the Revision E plans). During the hearing on 8 March 2022, the Court granted the Applicant leave to rely on Revision F of the Architectural Drawings (Exhibit C) and to rely on the updated Plan of Management dated 7 March 2022 (Exhibit D) all of which comprises the Proposed Development. 10. The Applicant also notes that with regard to specific design and performance criteria for childcare centres, the Guidelines contain an extensive suite of criteria relevant to the design of childcare centres. The relevant provisions of the Guidelines which had previously been in contention have all been resolved. In this regard, the Court is assisted by the Applicant's Statement of Environmental Effects dated prepared by Compass Planning dated July 2020 filed with the Class 1 Application (Ex 1), the Addendum Statement of Environmental Effects prepared by ABC Planning dated 18 November 2021 (Exhibit B), and the Assessment Reports for Council meeting on 15 December 2020 and 15 June 2021 (Respondent's Bundle of Documents, Ex 7), the ASOFAC (which shows numerous matters relating to the Child Care Planning Guideline as having been resolved) and the Joint Expert Reports of Planning Experts (Exhibit 2, 4, and 5). 11. The contentions set out in the ASOFAC relate to the following: 1. Streetscape Objective and Consideration C5 of Pt 3.2 Local Character, Streetscape and the Public Domain Interface of the Child Care Planning Guideline 2017 (contention 1) which is related to Design of Building (contention 3) 2. Noise/acoustics (contention 4) 1. I am satisfied that contention 5(i) under the hearing Insufficient information – use of outdoor play areas has been satisfied by the provision of the updated Plan of Management dated 7 March 2022 (Exhibit D). 2. I will consider the evidence in relation to the two principle issues and set out my findings. Streetscape and design of building (Contention 1 and 3) 1. The first principle issue is streetscape and design of the Proposed Development. The planning experts dealt with contentions 1 (Streetscape), 3 (Design of Building) and 5(i) (Further information as to use of outdoor play area) in the 28 January 2022 Planning JER. In relation to Streetscape at par 10 the experts conclude that "It is agreed that this outstanding concern in relation to the impact of the development upon the streetscape could be satisfactorily resolved by increasing the pitch of the northern portion of the roof at the front façade. This change would only impact the portion of the roof over the reception, kitchen, office, laundry and waste storage room." 1. Amended architectural plans Rev E makes the changes to address this Streetscape contention as agreed between the experts. This change is followed through in the Revision F architectural drawings and I reproduce an extract from the Elevations Drawing below: Figure 1 Elevations Drawing A1-05 Rev F (Exhibit C) 1. In relation to the design of the building, the Respondent's concern as set out in the ASOFAC is limited to the following: 1. Length of the southern wall element in combination with its height, especially at the rear of the building results in unnecessary additional shadowing and visual bulk upon the adjoining property at 2 Kearneys Drive; 2. Location of the garbage storage opposite the windows of the dwelling at 6 Kearneys Drive is inappropriate, resulting in inappropriate acoustic and odour impacts; and 3. Objectives and Considerations C11 of Pt 3.3 Building Orientation, Envelope and Design of the Child Care Planning Guideline optimising solar access and opportunities for shade. 1. I have considered the agreement reached between the town planning experts in the 28 January Planning JER at par 12 which states as follows: "The concern raised in relation to the impact of the southern portion of the building upon the adjoining property at 2 Kearneys Drive could appropriately be addressed if the rear portion of the building was lowered in height." 1. The expert town planners then propose a number of changes which could achieve this and reduce the bulk of the building as viewed from 2 Kearneys Drive providing an increase in articulation (par 14). 2. Finally, at par 15 the expert town planners agree that the hedge should be fast growing on the southern boundary "to ensure a visual softening of the structure occurs in the shortest possible timeframe." 3. Regarding the location of garbage storage room re noise and odour impacts upon 6 Kearneys Drive at par 16, the town planning experts agree as follows: "It is agreed that the concerns could be addressed either by the relocation of the storage area such that it does not adjoin the dwelling at 6 Kearneys Drive or by the following measures: a) Provision of facilities for internal cleaning of the bins (i.e. hot and cold water tap, floor drainage, sufficient area to allow for the storage and cleaning of the bins); b) Provision of ventilation system that ensures odours related to the storage bins do not impact the adjoining property; c) Inclusion in the conditions and Plan of Management of a requirement to clean the bins within the storage area with the door shut and for bins to be collected or placed out for collection and returned to the storage area only between 8am and 5pm Monday to Friday." 1. I note that the amended Revision F architectural drawings incorporate these agreed changes articulated by the town planning experts. 2. In addition, the Draft/Proposed Conditions of Consent, at Condition 6 imposes the following on the Applicant: "Amended plans and documentation shall be submitted for approval by the Certifying Authority prior to the release of the Construction Certificate indicating the following measures being provided within the waste storage room: (a) Provision of facilities for cleaning of the bins within the waste storage room (i.e. hot and cold water tap, floor drainage, sufficient area to allow for the storage and cleaning of the bins); and (b) Provision of a ventilation system that ensures odours related to the storage bins do not impact the adjoining property." 1. As a result of the evidence of the town planning experts and the changes implemented into the Proposed Development including the relevant conditions of consent (Ex 8), I conclude that the concerns raised by the Respondent regarding streetscape and design are appropriately resolved and there is no reason on merit to refuse the Proposed Development. Environmental Noise Impact Assessment (Contention 4) 1. The second principle issue relates to noise or acoustic impacts of the Proposed Development. The Respondent's concern was that the acoustic report had not satisfactorily address the acoustic impact of the proposed development upon the amenity of the surrounding properties. 2. The Acoustic experts reached agreement as to the re-assessment and re-design as set out in a report prepared by Mr Chung dated 8 February 2022 (Chung Acoustic Report, (Ex E)). 3. Part of the agreement between the acoustic experts is that a base noise criteria of 45dB(A) has been adopted in accordance with the AAAC Child Care Centre Guidelines (Version 3). The use of outdoor play areas based on the modelling presented in the Chung Acoustic Report dated 8 February 2022 shows compliance with the AAAC base criteria based on a breakdown of children in the outdoor play areas at any one time and the outdoor play is now detailed in the Plan of Management (Ex D). 4. For these reasons, I am satisfied that this contention is resolved. Notification and consideration of submissions (s 4.15(1)(d) EPA Act) 1. In determining a development application, a consent authority, in this case the Court, is to take into consideration any submissions made in accordance with the EPA Act or the regulations as required by s 4.15(1)(d) of the EPA Act. 2. The ASOFAC sets out the notification process engaged by the Respondent at par 5.2 and I note that objections were received in response to the public notification of the Proposed Development. A copy of all written submissions received by the Respondent are included in the Respondent's Bundle of Documents filed 24 February 2022 (Exhibit 7) as follows: 1. Submissions from objectors to original application received 31 July 2020 (Tabs 10 to 21) 2. Submissions from objectors to amended application lodged 25 March 2021 (Tabs 22 to 30) 3. Submissions from objectors to further amended application (leave granted 10 December 2021 (Tabs 31 to 37) 1. The concerns raised in the seven (7) identical submissions from objectors to the further amended application (leave granted 10 December 2021 - Tabs 31 to 37, Ex 7) include the following: 1. Traffic congestion and safety 2. Noise impacts 3. Geotechnical assessment concerning basement carpark 4. Overshadowing by proposed trees over neighbouring property at 175 Clinton Street 5. Compliance with the Plan of Management 1. The Proposed Development as amended pursuant to the leave of the court on 2 March 2022 was notified to those objectors who made submissions to the further amended application. 2. A number of objectors gave evidence before the Court and in my consideration of the written and oral submissions, I have reviewed traffic and parking in addition to the concerns raised by the Respondent in the ASOFAC. I note that the Applicant relies on, and the Respondent raised no objection to, the Supplementary Traffic Advice prepared by McLaren Traffic Engineering dated 11 November 2021 at Tab 8 of Ex B (Traffic Advice). The Traffic Advice proposes three options and option 1 is adopted by the Respondent in the ASOFAC (Ex 1) Part B2 titled "Contentions that may be addressed by condition" in contention 4A which reads as follows: "4A. To provide the safer road environment referred to in the critical review of the intersection of Kearneys Drive/Margaret Street provided in the applicant's supplementary traffic advice dated 11 November 2021 prepared by McLaren Traffic Engineering, conditions of consent should be imposed (if development consent is granted) requiring the developer to, at no cost to Council: (a) provide the raised threshold treatment referred to as the first "option" on page 7 of the above report; (b) obtain approval from Council under section 138 of the Roads Act 1993 before obtaining any construction certificate for the development; and (c) complete the required works and obtain certification of Council's satisfaction with same before the issue of any occupation certificate for the development." 1. I note that the parties have agreed to consent condition 15 to implement option 1 as referred to in the Traffic Advice and contention 4A extracted above. 2. Finally, in relation to parking, the car parking rates for child cate centres in Section 15.4 of the Orange Development Control Plan 2004 (being 1 space per 4 children in attendance) are complied with in the Proposed Development. The Court is assisted by the Applicant's Statement of Environmental Effects, the Addendum SEE, and the Assessment Reports for Council meeting on 15 December 2020 and 15 June 2021. 3. As part of the merit assessment of the Proposed Development, I accept the Applicant's submission that the Proposed Development is compliant with the relevant child care centre guidelines and policies. The Applicant provided a compliance summary and also referred to the table in the Addendum SEE. 4. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) commenced on 1 March 2022 and Pt 3.3 of Ch 3 of the instrument applies to the Amended Proposal in lieu of the previously applicable State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (2017 SEPP). 5. The relevant provisions of SEPP Transport and Infrastructure were transferred without any material change from the previously applicable State Environmental Planning Policy (in this case, the previously applicable 2017 SEPP) and, pursuant to s 30A of the Interpretation Act 1987, the applicable provisions of the new instruments, as transferred from the previously applicable instruments, are to be interpreted in the same way they were interpreted under the previously applicable instruments. 6. In particular, I note that concurrence is not required under s 3.22 of SEPP Transport and Infrastructure, as the Proposed Development, as amended, complies with the indoor and outdoor unencumbered space requirements of, respectively, cl 107 and 108 of the Education and Care Services National Regulations 2011. As shown in drawing A1.07 of the Revision F Plans, there is 249.3m2 of unencumbered indoor space being sufficient space for a capacity of up to 76 children and there is 506.9m2 of unencumbered outdoor space, being sufficient space for a capacity of up to 72 children. The Proposed Development meets the non-discretionary development standards in s 3.26 of SEPP Transport and Infrastructure. 7. I am also satisfied that s 3.23 of SEPP Transport and Infrastructure is complied with, in that the section requires the consent authority to take into consideration any applicable provisions of the Guidelines. The Addendum SEE addresses all applicable provisions of the Guideline: see Section 4.2 commencing at p 9 of the Addendum SEE. A number of contentions in relation to the Guideline were previously raised in the ASOFAC, which were all resolved as a result of agreements reached in the planners' respective joint expert reports and the Revision E and F plans. 8. Having considered all the evidence before the Court and having considered the submissions from objectors, I conclude that development consent should be granted for the Proposed Development. Jurisdictional prerequisites 1. I will now briefly address the jurisdictional prerequisites to establish that my decision is made in the proper exercise of the Court's function under s 4.16 of the EPA Act to grant consent to the development application. 2. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied by the evidence. 3. I have already addressed the provisions of the Guidelines and the SEPP Transport and Infrastructure so I will go on now to consider the relevant clauses of the OLEP starting with cl 7.1 relating to earthworks. 4. The consent authority must consider the matters set out in cl 7.1(3) of the OLEP in relation to the earthworks proposed on the Site as part of the Proposed Development. The Court is in a position to consider those matters in view of the Martens & Associates Geotechnical Excavation Report dated 1 March 2022 (filed 1 March 2022) considered together with Part 4.1.1 of the SEE and the Council assessment reports. Accordingly, I find that cl 7.1 of the OLEP is satisfied. 5. The next two relevant clauses of the OLEP related to stormwater management (cl 7.3) and groundwater (cl 7.6). 6. The Court as consent authority is in a position to consider, and is satisfied of, the matters set out in cl 7.3 of the OLEP in relation to the stormwater management measures proposed on the Site, having regard to the Amended Stormwater Concept Drainage Plan by Telford Civil dated 3 December 2021, Part 4.1.1 of the SEE and the discussion on s 7.3 of the OLEP in the Assessment Reports for Council meeting on 15 December 2020 and 15 June 2021 (found at pages 288 and 329 of the Respondent's Bundle respectively). 7. The Court as consent authority is in a position to consider, and is satisfied of, the matters set out in cl 7.6 of the OLEP in relation to the groundwater vulnerability on the basis of the preliminary geotechnical assessment and preliminary site investigation reports prepared by Martens & Associates dated May 2020, the Geotechnical Excavation Assessment prepared by Martens & Associates dated 1 March 2022, and the Assessment Reports for Council meeting on 15 December 2020 and 15 June 2021 (found at pages 288 and 330 of the Respondent's Bundle respectively). 8. Finally, cl 7.11 of the OLEP requires satisfaction that essential services are available for the Proposed Development. The Court, as consent authority, is in a position to consider and is satisfied that the essential services set out in cl 7.11 of the OLEP are available on or to the Site as evident from the Council assessment reports. 9. I now consider the relevant provisions of other applicable State Environmental Planning Policies relating to signage and contaminated land. 10. The Proposed Development proposes a fence mounted sign which is a "business identification sign", to which Ch 3 of State Environmental Planning Policy (Industry and Employment) 2021 (SEPP Industry and Employment) applies. 11. The SEPP Industry and Employment commenced on 1 March 2021 and applies in relation to the proposed business identification sign of the Proposed Development in lieu of the previously applicable State Environmental Planning Policy No 64—Advertising and Signage (SEPP 64). The Proposed Development proposes a fence-mounted business identification sign 1500mm wide and 800mm high as depicted on drawing A1.04 in the Revision F Plans, depicting the business logo, name, phone number, operating hours and age breakdown for the Centre. The parties have agreed to a condition of consent to ensure that the child care centre sign complies with the defining criteria of a business identification sign. 12. Accordingly, I am satisfied that the signage is consisted with the relevant objectives and criteria specified in s 3.6(1)(b) of State Environmental Planning Policy (Industry and Employment). 13. Finally, I note that there is no contention raised in the ASOFAC in relation to the issue of contamination. The Environmental Planning Policy (Resilience and Hazards) 2021 came into force on 1 March 2022 and has replaced the State Environmental Planning Policy No 55—Remediation of Land and the operative cl 7 of SEPP 55 has been replaced by s 4.6 of the new instrument. 14. The Court as consent authority is in a position to consider and be satisfied of the jurisdictional requirements under s 4.6 of the Resilience and Hazards SEPP (formerly cl 7(1)(a) of SEPP 55) having regard to the Preliminary Site Investigation (Martens, May 2020) and the Council assessment reports. 15. For these reasons, I conclude that I am satisfied that the decision to grant development consent is a decision that the Court can make in the proper exercise of its functions. Orders 1. The Court orders that 1. The appeal is upheld 2. Development application No. 284/2020 seeking development consent for demolition of existing structures and construction of a single storey child care centre at 4 Kearneys Drive Orange legally described as Lot A in DP 365443 is determined by the grant of consent subject to conditions of consent at Annexure A. ………………………. E Espinosa Commissioner of the Court Annexure A (268095, pdf) ********** Amendments 01 June 2022 - Pursuant to UCPR r 36.17, the Court with the consent of the parties, amends Annexure A in relation to Order 2 made on 19 April 2022 by correcting two typographical errors as follows: 1) In Condition (1)(c) of Annexure A, "7/12/2020" is deleted and replaced with "7/12/2021". 2) In Condition (1)(j) of Annexure A, "7/12/2020" is deleted and replaced with "7/12/2021" 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: 01 June 2022