Land and Environment Court New South Wales Medium Neutral Citation: Appian CCC Pty Ltd v Burwood Council [2022] NSWLEC 1619 Hearing dates: 25 and 26 October 2022 Date of orders: 10 November 2022 Decision date: 10 November 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders: (1) The appeal is upheld. (2) Development Application DA10.2021.88.1 for alterations and additions to an existing dwelling house and change of use to a centre based child care facility at 18 Appian Way, Burwood, is determined by the grant of consent, subject to conditions of consent at Annexure 'A'. (3) All exhibits are returned, except for exhibits E, G, H and 6. Catchwords: DEVELOPMENT APPLICATION: centre-based child care centre – effect of proposed development on heritage conservation area – whether plan of management will be complied with – whether acoustic performance is acceptable Legislation Cited: Burwood Local Environmental Plan 2012, cll 5.10, 6.1 Education and Care Services National Regulation 2011, r 108 Environmental Planning and Assessment Act 1979, ss 4.17, 8.7 State Environmental Planning Policy (Educational facilities and Child Care Facilities) 2017, cl 23 State Environmental Planning Policy No 55-Remediation of Land, cl 7 State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.26 Texts Cited: Burwood Development Control Plan 2013 NSW Department of Planning and Environment, Child Care Planning Guideline – Delivering quality child care for NSW (2017) Roads and Traffic Authority, Guide to Traffic Generating Development (2002) Transport Roads and Maritime Services, Validation Trip Generation Surveys Child Care Centres (2015) Category: Principal judgment Parties: Appian CCC Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel: T Robertson SC (Applicant) T To (Respondent) Solicitors: Mills Oakley (Applicant) Burwood Council (Respondent) File Number(s): 2021/286455 Publication restriction: No Judgment 1. COMMISSIONER: A child care centre is proposed on a site at the corner of The Appian Way and Burwood Road, Burwood on which stands an existing single storey dwelling, known as 18 Appian Way. 2. The proposal comprises the following: * A basement car park for 31 vehicles, accessed from Burwood Road via a new access driveway; * A two-storey addition to the west of the site, and partial demolition of the existing building; * Landscaping and construction of outdoor facilities for the outdoor play areas, and * Acoustic fencing. 1. To this end, the Applicant in these proceedings, Appian CCC Pty Ltd, lodged Development Application 10.2021.88.1 (the DA) on 18 August 2021. The DA was notified to surrounding property owners between 26 August and 13 September 2021 and 32 submissions were received. 2. On 8 October 2021 the DA remained undetermined and the Applicant filed a Class 1 Appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Applicant amended the DA on two occasions prior to the hearing before me. The Applicant amended the DA for the first time in May 2022, after which the Respondent further notified residents. 4. The Applicant further amended the application in October 2022. The site and its context 1. The site is located at the south-eastern corner of the intersection between Appian Way and Burwood Road, legally described as Lot 1 in DP 12249 with a total site area of 1,822m2. 2. The site is bounded by a combination of low brick boundary fence, and a high concrete block wall to the east, presenting to Appian Way. 3. Appian Way is a street that is well known to many Sydneysiders, being characterised by historic dwellings set in expansive landscape, grand tree-lined streets and low front fencing. 4. The site is located within the R2 Low Density Residential zone according to the Burwood Local Environmental Plan 2012 (BLEP), in which centre-based child care facilities are permitted with consent, where consistent with the following two objectives for development in the R2 zone: • 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. 1. The site is not identified for its heritage significance, but is located within the Appian Way Heritage Conservation Area (Appian Way HCA), described in Pt 4.8 of the Burwood Development Control Plan 2013 (BDCP) as follows: "The original Hoskins' Estate dating from the early 1900's consisted of 39 allotments, with 36 houses fronting Burwood Road, Appian Way and Liverpool Road plus a recreation reserve. The properties are large, ranging from a quarter acre to three-quarters of an acre, (0.1ha to 0.3ha), and irregularly shaped." 1. The objectives said by the Respondent to be relevant to the proposal before the Court include: Objectives O1 To provide appropriate and consistent policy guidance for future development: … (b) Which will result in the long-term conservation and enhancement of the historic, architectural, landscape and streetscape elements which contribute to the distinctive character and unique environment of the Conservation Area. O2 To conserve the heritage significance of the Conservation Area and its setting … O5 To retain and/or reinstate the characteristic architectural, landscape and streetscape elements of the Conservation Area. O6 To ensure that new development will safeguard the historic, cultural, social, architectural or aesthetic significance of the building, work or site as well as the streetscape of the area. … Provisions … P5 Alterations and additions shall be designed to complement the style of the existing dwelling and its setting, and not detract from the original and/or existing relationship of the building or works to the street. … Fence and Gate Details P42 Properties which have full or partial (plinth and/or piers) brick front fencing should retain such elements. P43 All other properties not subject to FG1 should incorporate timber picket front fencing, painted white or other appropriate light colour, on the front boundary as a feature of the Conservation Area. P44 The style, height and material of fencing should reflect the original details predominant within the Conservation Area. P45 Side path gates, letterboxes, lych gates, lighting and other street furniture or site facilities, visible from the street, should be appropriately styled to reflect original details relevant to the Conservation Area and not to detract from the heritage significance of the particular dwelling. P46 Side fences to establish property boundaries are to be appropriately understated post and rail with wire mesh infill (no brick fences or any other structures are considered appropriate on or within 900mm of a common boundary including a rear boundary). … Landscaping/Garden Details P47 A semi-formal design is generally appropriate for front and side gardens viewed from the street, with landscape plans to demonstrate: Well defined boundaries. Trimmed lawns (buffalo or couch). Edges and planting in neat beds. Shrubs and nominated shade trees located to complement the house. Appropriate plant material reflecting the species commonly available between 1900 and 1920 in the area. P48 Pathways may divide the lawn area, lined with flowerbeds that should also line inside the front fence. …" 1. The Appian Way HCA is further described in the Amended Statement of Facts and Contentions, prepared by the Respondent (Exhibit 1) as follows: "The Appian Way HCA currently comprises 41 houses, 31 of which are reasonably intact, a recreation area consisting of three lawn tennis courts with a weatherboard pavilion, and landscape elements such as street trees and picket fences. Five (5) houses (Numbers 70-78 Liverpool Road, southern side) within the Appian Way HCA are not in the Hoskins Estate but in the Austinlee Estate and three (3) houses of the original estate fronting Liverpool Road are not in the Appian Way HCA. The houses in the Precinct, consist of timber verandahs, dark brick, multi-pitched and gabled roofs and are alternatively covered with marseilles tiles and slates. The houses in the Appian Way HCA comprise multi pitched and gabled roofs which are alternatively covered with marseilles tiles and slates. The verandahs are integrated with the house under the same roofline and feature turned timber verandah posts. Generally, the houses are of complex, asymmetrical form, being dominated by extensive verandahs and prominent, irregular rooflines. The verandahs often have a corner emphasis and as the houses are placed on wide allotments, they tend to feature carefully designed and executed side elevations as well as street facades. The houses feature timber verandahs, dark face brick facades. There is pattern of houses with a consistent alignment of 10m to Burwood Rd with generous rear yards with an average depth of 55m. Side setbacks average between 3m and 5m. There is a pattern of houses with average alignments of around 10m to Appian Way South with generous rear yards with an average depth of around 20m. Side setbacks average at around 4m. There is a pattern of houses with average alignments of 12-20m to Appian Way North with generous rear yards with an average depth of 20-40m. Side setbacks average between 3-5m. The composite of the front rear and side setback results in a low proportion of the site occupied by the houses. The original houses are all 1.5 storey scale with the gutter line at approximately 4m and the top of the ridge at approximately 9m. This results in the dominance of front and side garden, clearly seen above low height front fences. Driveways generally occurred to one side of the house. There are two sites with basement garage, but these ramps are not visible from the street boundary. There are 6 sites with second storey additions, but these are not visible from the street boundary. The sites slope to the north such that additions are less noticeable on the north." 1. Section 5.3.5 of the BDCP also requires, at Provision P6, that where a child care centre is proposed within a heritage conservation area, as is the case here, the development application must be accompanied by a heritage impact statement. 2. The DA was accompanied by a Heritage Impact Statement, prepared by Weir Phillips dated August 2021 (Exhibit A, Tab 10). A Revised Heritage Impact Statement (the HIS) by the same author, dated 13 April 2022 (Exhibit B, Tab 5). 3. The HIS describes the first reference to the dwelling on the site is on a Water Board plan dated 1904, as one of the first 36 dwellings constructed in the Hoskins Estate (pp 10-11). The dwelling was named 'Roma' and was used as a dwelling house until records in 1946 show its use as a form of 'nursing home', and thereafter as a venue for receptions (p16). 4. Renovations in the 1970's involved internal alterations, installation of aluminium windows and construction of a roof over a rear concrete patio (p18). 5. The HIS also assesses the interior and exterior of the dwelling to have low integrity, having undergone considerable alteration over time, including: * Removal of original slate roof cladding, and chimneys. * Removal of original detailing, such as in the western verandah. * Replacement of windows and doors, and enlargement of openings in some cases. * Original ceilings, cornices, doors and skirting boards, fireplaces and chimney breasts have been removed. (pp 49-50). The onsite view 1. The proceedings commenced with an onsite view at which the Court, in the company of counsel and the experts, heard oral submissions from two residents of Appian Way. 2. The concerns of those residents were similar, and may be summarised as relating to inconsistency with the heritage character of the Appian Way community, parking and traffic congestion, stormwater and flooding. 3. I note here that written submissions received in response to the initial development application at [3], and the amended application at [5], are contained in the Respondent's bundle, at Tabs 1, 2 and 4a (Exhibit 2). 4. During the onsite view, the Court was taken to three viewpoints on Burwood Road and Appian Way from where photomontages, prepared by the Applicant, illustrate the proposal, with and without the proposed landscaping so as to depict built elements more clearly, including a glazed acoustic fence. 5. The Court was also taken on a walking tour, travelling in an easterly direction from the site, observing the existing dwellings and the nature of front fencing, the prevalence of hedging and other planting in the front setback, driveways and the like, before returning on the northern side of Appian Way to the site. The issues are distilled 1. The issues identified by the Respondent at the commencement of the hearing are as follows: 1. The proposed development unacceptably impacts the character of the Appian Way HCA contrary to cl 5.10 of the BLEP. 2. The proposed Plan of Management does not align with the Acoustic assessment. 1. The Court was assisted by experts in the following disciplines: 1. In respect of acoustic: Mr Steven Cooper for the Applicant, and Mr Neil Gross who conferred in the preparation of a joint expert report (Exhibit 3). 2. In respect of planning: Mr Jeff Mead for the Applicant, and Mr Scott Barwick for the Respondent who conferred in the preparation of a joint expert report (Exhibit 5). 3. In respect of heritage: Mr James Philips for the Applicant, and Ms Jennifer Hill for the Respondent, who conferred in the preparation of a joint expert report (Exhibit 4), filed on 27 September 2022. It is relevant to record here that as the heritage experts filed Exhibit 4 prior to the amending of the development application at [6], the Court directed that the experts should confer further. A supplementary joint report was filed with the Court on 25 October 2022 (Exhibit 9). The Child Care Guideline 1. As this appeal relates to a proposed centre-based child care facility, the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) apply. 2. This is because, while the development application was lodged on 18 August 2021, when State Environmental Planning Policy (Educational facilities and Child Care Facilities) 2017 (Child Care SEPP) was in force, the provisions of the Child Care SEPP were transferred, on 1 March 2022 to the Transport and Infrastructure SEPP. 3. Section 3.26 of the Transport and Infrastructure SEPP contains non-discretionary development standards that, if complied with, prevent the consent authority, or the Court on appeal, from requiring more onerous standards for those matters. 4. The Respondent initially contended that the proposal failed to provide the unencumbered outdoor area of 7m2 per child, as required by Regulation 108 of the Education and Care Services National Regulation 2011, and is the subject of s 3.26(2)(b)(i) of the Transport and Infrastructure SEPP. However, the planning experts agree that the amended architectural and landscape plans depict the required unencumbered outdoor area. 5. Relevantly, cl 23 of the now repealed Child Care SEPP required a consent authority, or the Court on appeal to take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to a development application for development for the purpose of a centre-based child care facility. 6. Section 3.23 of the Transport and Infrastructure SEPP is in identical terms, also citing the Child Care Planning Guideline. 7. The parties agree that, due to the operation of saving provisions, the applicable Child Care Planning Guideline is the Child Care Planning Guideline 2017 – Delivering quality child care for NSW (Child Care Guideline) (Exhibit 8). 8. The Child Care Guideline is also cited in Section 5.3.3 of the BDCP. 9. The Respondent identifies two Sections of the Child Care Guideline of particular relevance to the proposal before the Court. 1. Section 3.2 deals with Local character, streetscape and the public domain interface, in which the following objectives apply: * Objective: To ensure that the child care facility is compatible with the local character and surrounding streetscape. * Objective: To ensure clear delineation between the child care facility and public spaces. * Objective: To ensure that front fences and retaining walls respond to and complement the context and character of the area and do not dominate the public domain. 1. Section 3.5 deals with Visual and Acoustic privacy, with the following objectives: * Objective: To protect the privacy and security of children attending the facility * Objective: To minimise impacts on privacy of adjoining properties. * Objective: To minimise the impact of child care facilities on the acoustic privacy of neighbouring residential developments. 1. The amended application is supported by a Plan of Management, authored by the Applicant's child care expert, Ms Lynda Campbell dated 6 October 2022 (Exhibit C, Tab 4). 2. At this point it is helpful to state that the Plan of Management refers to two outdoor play areas that are not depicted in plan within the Plan of Management, but in the Acoustic Report (Exhibit C, Tab 5). The relevant plan is re-produced below: 1. At the outset of the hearing, Ms Campbell was called, as a single expert, to provide oral evidence in support of the Plan of Management, on three topics adduced by counsel for the Respondent, Mr To. 2. Ms Campbell's evidence is summarised below in respect of: * Supervision of children * Visual and acoustic privacy * Shade structures Supervision of children 1. Ms Campbell agrees that effective supervision of children is essential in a child care facility, including at those times when children move from indoor to outdoor areas, and when children may need to be accompanied away from a family group, for example when toileting, or needing comfort or first aid. 2. Such supervision is determined by staffing ratios that vary according to age. For instance, infants require one educator for every four infants, toddlers require one educator for every five, and older children require one educator for every 10 children. 3. It is also common for part time staff to be employed to cover downtime of full time staff, such as at lunch breaks. 4. In Ms Campbell's view, the proposal includes adequate provision for the supervision of children, including when in the Outdoor Play Area 1 (OPA 1), despite the area being divided into two areas by the curved entry path. 5. This is because the convention is for staffing to be calculated as staff "under the roof", which I understand to mean the ratio of staff to children is calculated across the whole site, and not against individual OPAs. 6. Additionally, when supervising educators are required to accompany a child to a toilet, or to first aid, it is common practice for another staff member to be asked to supervise temporarily, which is both common and permitted. 7. The issue raised by the Respondent is that the flexibility inferred by Ms Campbell can lead to staffing deficits in certain OPAs, in which the children are assumed to be engaged in certain activities, such as passive play. This logic underpins the acoustic assessment (Exhibit C, Tab 5), evident in Table 4 (folio 79). 8. The ten scenarios evident on Table 4 are reflected in a Matrix found on folio 144 of the Acoustic Assessment, which assume various combinations of both active and passive activities by varying numbers of children. 9. As I understand it, the circumstance envisaged by the Respondent, given Ms Campbell's evidence at [44], could result in a greater number of children creating what may be considered noise beyond that modelled in the scenarios and on the basis of which noise targets are devised by the Applicant. 10. The Plan of Management shows 19 full time staff, and a centre manager. In written submissions, the Respondent contends the number of educators nominated is precisely the minimum required to comply with staffing ratios, but for the centre manager who is, in effect, a 'spare'. 11. As such, this is likely to result in periods of reduced, or no supervision, with potential for uncontrolled noise. 12. The acoustic experts identify, at par 31 (Exhibit 3), that the Plan of Management has a lesser number of children outside than the number assumed in the acoustic matrix and therefore, the number of children assumed in the Plan of Management is less than the acoustic design target. 13. That said, Mr Gross maintains that the split of child numbers in the acoustic modelling of the outdoor areas may not reflect the educator-to-children ratios required in each outdoor play area by the Plan of Management, and that, in his experience, a group as large as 70 preschool children across both areas of OPA 1 cannot all be engaged in passive play. Visual and acoustic privacy 1. Ms Campbell does not understand Section 3.5 of the Child Care Guideline to preclude visual contact between children and the public domain by reference to visual privacy, as is common in child care centres that address a footpath with open fencing. 2. While Control C21 seeks to minimise direct overlooking of indoor rooms and outdoor play spaces from public areas through appropriate site and building layout, suitably locating pathways, windows and doors, permanent screening and landscape design, this provision is, to Ms Campbell's understanding, intended to apply where a child care facility is located in proximity to apartment buildings. 3. Indeed, the Child Care Guideline encourages a sightline beyond the centre for children playing within. Shade structures 1. In her oral evidence, Ms Campbell identified shade structures in three locations; being in the western portion of OPA 1, the northern portion of OPA 1, and to the south of the site in OPA 2. 2. The shade structures provide a portion of the shade required in an OPA by the Child Care Guideline, which is nominated as 30% of the OPA. This includes shade provided by tree canopy, verandahs, shade structures and all other forms of shade. 3. Ms Campbell is not aware of the form of the shade structures, which I note are not depicted in elevation, section, on plan, shadow diagrams or other drawing, in either the architectural or landscape plans. However, I also note that the colour of shade structures is a matter identified at s 3.26(2)(d) of the Transport and Infrastructure SEPP where located in a heritage conservation area, as is the case here. 4. The Respondent considers the uncertainty of form and finish to the shade structures contributes to an incompatibility with the character of the Appian Way HCA. In closing submissions, the Applicant advised the Court it would accept a condition of consent that the shade structures be retractable. 5. For the following reasons I accept that the Plan of Management is likely to be complied with, and acoustic performance to be acceptable: 1. Firstly, the care and management of children is a highly structured undertaking, requiring pre-planning of specific tasks at certain timeframes across a day. This pre-planning, and the close interaction between educator and children engaged in these routines, often in an environment that is familiar to the child, lends itself to compliance, in my view, with the program set out in the Plan of Management. 2. Secondly and relatedly, this structured program does not occur in isolation from the proposal, but is supported by the particular design and layout of activities evident on the landscape plans, whereby for example, hopscotch, located in OPA1 west, or the mound and slippery slide in OPA 1 north can both be assumed to support active play while the sandpit located in OPA 1 west, or the yarning circle, located in OPA1 north, are identified in the Plan of Management (p 6) to support passive play. 3. Thirdly, the number of staff accords to the ratios required, as I understand it, by what is known as the National Quality Framework. Additional to this, the centre manager is not a resource to be actioned, as it were, only in the case of unforeseen circumstances but, according to the Plan of Management, has, as part of their position, a role to "assist with relief during staff breaks, programming time, and other general duties" (p 4). 4. Fourthly, the Matrix of Cumulative Noise Emission Levels from Outdoor Play at folio 144 of the Acoustic Assessment demonstrates that, in all ten scenarios modelled, the contribution of noise at certain receiver locations is below, or well below, the relevant noise targets. 5. Fifthly, I accept Ms Campbell's evidence that groups are likely to move between areas at periods of the day when full attendance of children is not reached, such as at the start, or towards the end of the day. Heritage evidence 1. No concern is raised by the removal of the rear portion of the existing dwelling that is agreed to be a later addition. 2. However, the heritage experts disagree on the impact of the proposed glass fencing, and the extent of view that should be maintained to the existing dwelling as a gateway to the Appian Way HCA. 3. Ms Hill considers the degree of impact to be driven by the number of children being accommodated on the site, which determines the extent of outdoor area required to be fenced. A development proposing fewer children would require lesser outdoor area to be fenced, and so allow landscaping to be extended. 4. Extending landscape opportunities is important as the character of the Appian Way HCA is formed by open wide lawns, low fences and shrubs that allow extensive views of the dwellings in the area. This openness is diminished by the enclosing of the front setback to create a 'compound'. 5. Mr Phillips considers the glass fencing to be acceptable given it is setback from the boundary, behind hedged landscaping, and that it is non-reflective. Furthermore, the view corridor formed by the entry path, and landscape setback, provides a view from the gateway to the Appian Way HCA that presents the renovated dwelling in flattering 'three-quarter' view, with the turret of the adjoining historic house at 306 Burwood Road rising behind as a backdrop. 6. The supplementary joint report (Exhibit 9) deals primarily with the acoustic fencing proposed on the site. 7. The experts agree the curved entry path from the northwestern corner of the site, to the reception, is now more consistent with the character of the Appian Way HCA. 8. I note here that the requirements determining the height of the acoustic fencing is agreed between the acoustic experts in Exhibit 3. A plan showing fencing types was prepared by the Applicant's architect, which was marked by the heritage experts (Exhibit 9, p24). This plan is re-produced below. 1. The acoustic fence is depicted in elevation and section detail on architectural Drawing PD14, PD15 and PD16. The Court noted differences in the way in which the sections appeared, including blockwork foundation wall of either 800mm high (Dwg PD14 and PD15), or 1230mm high (Dwg PD16). 2. In each detail, it is consistently shown that the acoustic fence is positioned around 600mm behind a new timber picket fence, represented in a manner similar, if not identical, to the detail seen during the onsite view on properties in the street. 3. Likewise, the 2200mm high acoustic glass fence enclosing OPA 1 which traces the approximate curvilinear line of the entry path, is also depicted differently in the evidence: * A notation on the Ground floor plan denotes "2200mm high glass acoustic fence (see Detail)". The detail to which this refers is unclear. * A sketch prepared by Mr Phillips on p16 (Exhibit 9), shows glass panels extending to low brick piers, supporting 1900mm high 'T' section steel posts. * An elevation detail on p17 (Exhibit) shows what appears to be glass panels on blockwork, with 50x50mm steel posts supporting the opening to a gate in the 2200mm high acoustic fence. 1. While this acoustic fence is shown in plan to be curvilinear, the heritage experts initially understood the means of achieving the curved alignment is by faceting straight glass panels. Mr Phillips considers this acceptable as, in effect, the facets will reflect differentially, while Ms Hill regards the detail will likely draw greater attention to an important element at the entry to the site which acts as a gateway to the Appian Way HCA. 2. The experts agree that the acoustic fence is likely to require structural posts at 1200mm centres, stopping short of the top of the fence, akin to the detail prepared by Mr Phillips on p17 (Exhibit 9). 3. However, if structural posts are relied on for support, Ms Hill believes the effect of viewing them on the oblique, or in the curved geometry required by the curvilinear form of the fence adjoining the entry path, will be to make more solid the acoustic fence in these locations, and when viewed entering the Appian Way HCA. 4. Following the evidence of the heritage experts, the Applicant tendered a statement by the Applicant's architect (Exhibit H), Mr Nicholas Day, clarifying the following: * The difference in details shown on Dwg PD14 and PD15 results from differing ground conditions inside the site so as to ensure a consistent level when viewed from outside the site. * The maximum vertical dimension of glass above the blockwork foundation wall is 1400mm which is considered structurally acceptable according to a pool contractor who commonly installs frameless glass pool fencing, which is an identical detail to that proposed. * The curvilinear acoustic fence, including the glass panel and blockwork wall below, are to be curved, and not faceted. 1. The statement is accompanied by images of a 50mm x 100mm minimum continuous rebated channel detail, and installations of a glass pool fence, re-produced in part below: 1. In my view, the architect's statement appears to resolve the question at the centre of the heritage dispute in this matter, which is the degree to which the glass acoustic fence will impact the character of the Appian Way HCA. 2. I accept that, if the acoustic fence is treated akin to a pool balustrade, with glass thickness selected appropriately for the cantilever over a blockwork foundation wall below, the fence can be constructed without structural posts, and is capable of being designed and constructed as a frameless screen. 3. The architect also advances the well-accepted principle that a curved panel is inherently more rigid than a flat panel, and so less requiring of additional structural support that would provide a distraction from the otherwise clear, and non-reflective glass panel. 4. I note what appears to be the joint position of the heritage experts that, notwithstanding disagreement as to the extent and impact of the proposed glass fence, curved panels are a superior outcome where shown curved in plan adjacent to the curvilinear entry path. 5. The exception to the frameless fence detail, as I understand it, is at the location of the two 2200mm gates providing access from OPA1 West and OPA1 North to the curved entry path. The architect's detail, at p 17 (Exhibit 9) shows a frameless gate, with 50mmx 50mm square hollow section steel posts either side, re-produced below: 1. I consider it appropriate for this detail, prepared by the Applicant's architect, to be the subject of a condition of consent so that structural elements are minimised to only those locations attested by the architect to be required. 2. So understood, I am satisfied the glass fence will be a recessive element by virtue of it being both transparent and frameless, and without additional structural support. 3. The glass fence must also be properly understood as one part of an assembly of elements proposed to comprise the new boundary fence. The assembly includes a new continuous timber picket fence that will substantially match the predominant front fences evident in Appian Way, behind which is proposed a similarly continuous hedge. 4. When this assembly is considered as a whole, I give weight to the positive contribution that will be made by the picket fence that will be seen in the foreground, and the hedge that provides an immediate backdrop. It is behind these elements that the glass screen will then be seen, at two different heights, ranging from around 500mm to 1200mm above a mature hedge which, according to the Indicative Plant Schedule (Exhibit C, Tab 3, Dwg 000), can be expected to grow to a height of 1m at maturity. 5. I also consider the replacement of the existing 1800mm high concrete blockwork wall to the east of the site with the assembly of elements described at [83], and the relocation of the above ground substation on Appian Way to remove two elements that significantly detract from the established character of the Appian Way HCA. 6. On this basis, and on the understanding that the glass fence will be both transparent and frameless, I consider the effect will be, on balance, a sympathetic contribution to the Appian Way HCA. 7. However, I consider it appropriate that a condition of consent be imposed to ensure that the undertaking contained in the architect's statement at Exhibit H be realised, following appropriate structural engineering advice. To be clear, a condition of consent is not imposed due to doubt that a frameless solution can be achieved, but so that the requirements of a frameless solution are appropriately prioritised. 8. Additionally, so as to ensure the architect's statement at Exhibit H is adopted, and the acoustic fence is transparent and frameless glass, it is necessary to modify the agreed condition proposed at Condition 4 that would, if not modified, result in a glass panel that exceed the vertical cantilever of 1400mm at [74] and, presumably, result in additional structure. 9. Relatedly, a condition is also imposed requiring suitably qualified engineering certification of the transparent and frameless glass acoustic fence, and gates, prior to the issue of a Construction Certificate. 10. Furthermore, while the fence material is universally agreed to be glass, the Court notes without prejudice conditions of consent use the term "glass-like transparent materials" at Condition 62. 11. To be clear, at no point has it been suggested that a material other than glass is proposed. Accordingly, reference to the fence material at Condition 62 is reverted to 'transparent and frameless glass'. 12. The Respondent also identifies uncharacteristic elements that will be visible in the front setback through the glass acoustic fence, such as shade structures, play equipment and artificial turf. 13. The Applicant, in closing submissions, submits that it would accept conditions of consent requiring the shade structures to be retractable, and for play equipment to be relocated consistent with the hand marked plan agreed by the heritage experts (Exhibit 9, p27). 14. I note the particular type of activity, and its location in OPA1 is the subject of the acoustic assessment, and conditions agreed between the acoustic experts. The dwelling on the site is not currently identified for its heritage significance, and experts agree it will not reach the threshold of significance as a result of the proposed development. I therefore consider it appropriate to balance the potential for a change in the circumstances so modelled in the acoustic assessment with the likely visual impact on the existing dwelling by declining to require alternative locations for those activities depicted on the landscape plan. 15. While artificial turf may be a jarring element in the otherwise appealing natural landscape setting of Appian Way, I do not consider a view of it from the public domain to be so offensive as to warrant refusal in its own right. I note that a view of it will only be had from the footpath immediately adjacent to the site, and not from passing vehicles or pedestrians on the opposite side of Appian Way, or Burwood Road. 16. As stated at [57], two shade structures shown in the front setback, are not specified as to height, shape, size, colour or finish. As noted at [57], s 3.26(2)(d) of the Transport and Infrastructure SEPP states that the colour of building materials or shade structures may be of any selection unless located in a heritage conservation area. 17. As the shade structures are located within the Appian Way HCA, I consider the selection, colour and finish of the shade structures to be properly the subject of a condition of consent prior to the issue of a Construction Certificate. 18. I also accept that it, like the glass fence itself, the artificial turf and shade structures are removable or reversible should a different use, or different approach to the proposed use, be sought sometime in the future. 19. For the reasons set out at [76]-[86], I consider the effect of the proposed development on the Appian Way HCA to be, on balance, sympathetic, pursuant to cl 5.10 of the BLEP. Relatedly, I also find the external presentation of the development is compatible with the local character and surrounding streetscape, with a front fence that responds to and complements the context and character of the area in a form that will not dominate the public domain, which are objectives of Section 3.2 of the Child Care Guideline. 20. While those matters identified by the parties at [24] are resolved, it is necessary to first consider a number of jurisdictional preconditions prior to the Court having power to grant consent to the proposed development. Jurisdictional matters State Environmental Planning Policy (Resilience and Hazards) 2021 1. Consistent with the requirements of cl 7 of State Environmental Planning Policy No 55—Remediation of Land, the requirements of which were transferred on 1 March 2022 to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazard SEPP), I have given consideration to the potential contamination of the land. 2. On the basis of the Preliminary Site Investigation prepared by GCA dated 3 June 2021 (Exhibit A, Tab 13), and the chronology of occupation and use of the site contained in the Statement of Heritage Impact, I consider the site is not contaminated and is suitable in its current state for the purpose proposed. Acid Sulfate Soils 1. The site is identified within an area of Class 5 acid sulfate soils on the Acid Sulfate Soils Map at cl 6.1(2) of the BLEP but not within 500m of soil designated any other type. This accords with the statement on p 7 of the Preliminary Site Investigation prepared by GCA dated 3 June 2021. Public submissions 1. A number of submissions identify a shortfall in onsite parking for vehicles. The amended DA provides 31 car parking spaces in a two-level basement. 2. I have considered the public submissions made in respect of the proposal, at its initial lodgement, and subsequent to its amendment in May, and those submissions heard at the onsite view. 3. The Traffic and Parking Impact Assessment (TPIA) prepared by Motion Traffic Engineers dated May 2021 (Exhibit A, Tab 11) was prepared in support of the original DA when a higher number of staff and children were proposed. The TPIA cites the Guide to traffic generating development 2002, and the Validation Trip Generation Surveys Child Care Centres, published by Roads and Traffic Authority, as it was then, to identify a requirement for 47 car spaces on the site. 4. Extrapolating the amended staff and children numbers on the site now proposed, the required number of car spaces would be in the order of 39. 5. I note that Section 3.8 of the Child Care Guideline permits a reduction in car parking rates where the proposal is an adaptive re-use of a heritage item, and where the site is in proximity to high frequency and well connected public transport. 6. While the site is not a heritage item, the adaptive reuse of the existing dwelling is agreed by the parties and the experts to be an appropriate premise to the proposal, that I find is sympathetic to the Appian Way HCA. I also note that I accept the site is serviced by high frequency bus services. For these reasons, I find the provision of parking acceptable. 7. I have considered the principally contested issues in this matter, and the submissions of residents. For the reasons stated above, I have determined that the proposed development warrants the grant of consent, subject to conditions of consent in accordance with s 4.17 of the EPA Act. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Application DA10.2021.88.1 for alterations and additions to an existing dwelling house and change of use to a centre based child care facility at 18 Appian Way, Burwood, is determined by the grant of consent, subject to conditions of consent at Annexure 'A'. 3. All exhibits are returned, except for exhibits E, G, H and 6. ………………….. T Horton Commissioner of the Court Annexure A (308888, 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: 10 November 2022