Land and Environment Court New South Wales Medium Neutral Citation: Eboli v Penrith City Council [2024] NSWLEC 1320 Hearing dates: 4-6 March 2024 Date of orders: 14 June 2024 Decision date: 14 June 2024 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development application DA22/0435 for demolition of existing structures, vegetation removal, site consolidation and construction of a new centre-based child care facility with a capacity of 80 children, including basement car parking for 20 vehicles at 29 and 31 Marsden Road, St Marys NSW 2760 is determined by the grant of consent, subject to conditions of consent at Annexure A. (3) All Exhibits are returned, except for Exhibits E, F, J, K, and W. Catchwords: DEVELOPMENT APPLICATION – Centre-based child care facility in R2 Low Density Residential zone Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, s 40 Environmental Planning and Assessment Regulation 2021, s 38 Penrith Local Environmental Plan 2010, cll 7.4, 7.7, 7.30 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.6 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.25 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Basevski v City of Ryde Council [2022] NSWLEC 1387 Carpenter Street Centre Pty Ltd atf The Carpenter Street Centre Trust v Penrith City Council [2024] NSWLEC 1005 Force Way Group Pty Limited v city of Parramatta Council [2021] NSWLEC 1024 Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349 Raland Constructions Pty Ltd v Hunters Hill Council [2021] NSWLEC 1535 Texts Cited: Australasian Association of Acoustic Consultants, Guideline for Child Care Centre Acoustic Assessment, Penrith Development Control Plan 2014 NSW Department of Planning, Industry and Environment, Child Care Planning Guidelines, September 2021 National Construction Code Category: Principal judgment Parties: Fiorentino Eboli (Applicant) Penrith City Council (Respondent) Representation: Counsel: J Reid (Applicant) T To (Respondent) Solicitors: Macpherson Kelley (Applicant) HWL Ebsworth (Respondent) File Number(s): 2023/65562 Publication restriction: Nil Judgment 1. COMMISSIONER: The Applicant in these proceedings seeks consent for a child care centre with basement car parking, landscaping and engineering works on a site that consolidates land at 29 and 31 Marsden Road, St Marys. 2. A development application, DA22/0435, was lodged to this effect with Penrith City Council (the Respondent) on 20 May 2022. 3. A Notice of Determination refusing the development application was issued by the Respondent on 4 January 2023, and the Applicant filed an appeal in Class 1 of the Court's jurisdiction, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) shortly after, on 27 February 2023. 4. On 8 December 2023, the Court granted the Applicant leave to amend the development application. 5. On 2 February 2024, the Respondent filed an Amended Statement of Facts and Contentions (Exhibit 1) that identifies contentions summarised as follows: 1. No means of stormwater disposal has been proposed. 2. The proposal will not reduce the urban heat island effect. 1. Arboriculture 2. Unacceptable landscaping 3. Sustainability 1. The proposal is out of character with the residential area. 1. Built form unacceptable 2. Solar access requirements 1. The acoustic impact is unreasonable. 1. The proceedings commenced with an onsite view at which the Court, in the company of the legal representatives and experts, observed the site and its context, and heard oral submissions from residents of the adjoining property at 33-35 Marsden Road. 2. In general terms, the concerns expressed by the residents flow from what is perceived as a change and intensification of use on the site that will result in greater traffic, noise and visual impact. 3. At the commencement of the hearing, the Applicant sought leave to rely upon amended plans and other documents, and to amend the development application in terms the parties agree is minor. 4. To this end, the Respondent, as the relevant consent authority, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, approved the amending of the development application with the following documents: 1. Amended architectural plans later marked Exhibit A 2. Amended Landscape plans, later marked Exhibit B 3. Amended ESD Report, later marked Exhibit C. 1. For completeness, I also record that the Applicant sought, by Notice of Motion under the Affidavit of Ms Alyce Johnson dated 1 March 2024, to amend the Class 1 Application to correct the name of the Applicant from that originally entered in the initiating procedure with the Court, in terms that were unopposed. The site and its context 1. The site comprises two lots of land located on the western side of Marsden Road, St Marys, close to the intersection with Carpenter Street that are legally described as Lot A2 in DP 420266 and Lot 1 in DP 26445. 2. When taken together, the lots present a frontage to Marsden Road that measures 28.765m, with a total site area of 1,222.3m2. As one lot is of a deeper dimension than the other, the rear boundary is stepped. 3. The site is currently occupied by two dwelling houses, and seven trees. 4. Relevantly, the existing fences on the perimeter of the site are solid colorbond-style dividing fences that are, in part, built up above the natural ground surface on a low foundation wall to a height greater than 1.8m. 5. The site is located within an area identified in the Penrith Local Environmental Plan 2010 (PLEP) as R2 Low Density Residential, in which Centre-based child care facilities are permitted with consent where consistent with the following objectives of 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. • To promote the desired future character by ensuring that development reflects features or qualities of traditional detached dwelling houses that are surrounded by private gardens. • To enhance the essential character and identity of established residential areas. • To ensure a high level of residential amenity is achieved and maintained. Expert evidence 1. The Court was assisted in its consideration of the issues relevant in the circumstances of this case with the evidence of the following experts in the following disciplines: 1. Town planning: Mr Jonathan Wood, for the Applicant and Mr Nicholas Cavallo for the Respondent who conferred in the preparation of a joint expert report marked Exhibit 7. 2. Acoustics: Mr Stephen Gauld, for the Applicant and Mr Steven Cooper for the Respondent who conferred in the preparation of a joint expert report marked Exhibit 4, and a supplementary joint report (Exhibit 9). 3. Aboriculture and Landscape: Ms Catriona Mackenzie, arborist for the Applicant, and Ms Rebecca Surian, landscape architect for the Applicant, and Ms Donna Montgomery for the Respondent who conferred in the preparation of a joint expert report marked Exhibit 6. Stormwater 1. The Respondent contends that the disposal of stormwater from the site requires a legal right of discharge over adjoining properties that has not been demonstrated by the Applicant. 2. Furthermore, the development application does not seek consent for drainage works. 3. Additionally, the Respondent considers failure to secure land owners consent for drainage over adjoining properties to be an impediment to the grant of consent. 4. Accordingly, with no legal right of discharge of stormwater, and no proposal to seek consent for the same, the Court cannot be satisfied that the need for public amenities or public services will be met, pursuant to cl 7.7(2)(d) of the PLEP. 5. The Respondent submits that the disposal of stormwater is a public amenity that connects to a public system, and directs the Court's attention to cl 7.7 of the PLEP that deals with servicing a site in the following relevant terms: (1) The objective of this clause is to ensure that development of land to which this Plan applies reflects the availability of services. (2) Before granting development consent for development on any land to which this Plan applies, the consent authority must be satisfied that— (a) the development will be connected to a reticulated water supply, if required by the consent authority, and (b) the development will have adequate facilities for the removal and disposal of sewage, and (c) if the development is for seniors housing, the development can be connected to a reticulated sewerage system, and (d) the need for public amenities or public services has been or will be met. … 1. The Applicant has filed an application in Class 3 of the Court's jurisdiction, pursuant to s 40 of the Land and Environment Court Act 1979 (LEC Act) (Exhibit R), seeking an easement on title from the relevant land owners to the south of the site, including from the Owners Corporation of Strata Plan 30787 given the proposed path for drainage is on both common and private property. 2. The Applicant submits that the development the subject of the development application does not propose works on adjoining land, but rather depicts a path for the disposal of stormwater over adjoining land, subject to the easement that is sought under s 40 of the LEC Act. 3. Furthermore, the purpose of depicting that pathway is to permit the Court to assess the impacts of those off-site works, in a manner consistent with that found in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) NSWLR 638; [2011] NSWCA 349. 4. The land on which development is proposed to be carried out is not the adjoining land, and does not involve two stages as in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 (Al Maha) at [157], and does not propose conditions of consent for the undertaking of such works, which further distinguishes this case from that of Al Maha. 5. Instead, the Applicant has made an application to the Court for an order imposing an easement over the relevant lots on adjoining land under s 40 of the LEC Act, and proposes a deferred commencement condition (Exhibit 11). 6. The terms of the deferred commencement condition proposed in the without prejudice conditions of consent are, in summary, that within 48 months of the grant of consent: 1. A separate development application is required to be lodged for drainage through 33-35 Marsden Road and 175 Carpenter Street. 2. Written evidence of an entitlement to drain through those sites must be provided to the Respondent. 3. Stormwater drainage plans must be amended to ensure drainage to the northern boundary is 1.5m below surface level, and the subsurface rainwater tank is shown under the driveway. 1. An assessment of the impacts arising from such an easement has been undertaken by the Applicant. 2. A Stormwater Management Report, prepared by Mr Anthony Basha dated December 2023 (Stormwater Report) (Exhibit K) assesses two options for stormwater drainage of the site. Drainage to Marsden Road is discounted because of the fall of the land that would require excessive fill on the site. 3. On 8 February 2024, the Applicant filed with the Court a Notice to Admit Facts (Exhibit Q) seeking an admission from the Respondent that it will not permit stormwater to be drained from the proposed development to Marsden Street, St Mary's. I note here the Respondent filed a Notice to Dispute Facts on 22 February 2024 and the matter remains unresolved. 4. In any event, the Stormwater Report concludes the preferred option is to drain to the rear of the site by underboring from the subject site to an existing pit viewed by the Court in the driveway of 33-35 Marsden Road, then deviating to a second pit located to the rear of that site, before it connects with an existing drainage pipe that drains to Carpenter Street. 5. The Stormwater Report demonstrates there are no implications for structures in achieving the preferred drainage path; sets out a construction method, identifies features such as the Jacaranda tree on the adjoining site; and the location of the easement between the second pit, and Carpenter Street. 6. A letter of addendum prepared by Ms Mackenzie (Exhibit N) considers the potential impact of the proposed underboring for stormwater drainage on the Jacaranda tree located on 33-35 Marsden Road to a pit sighted by the Court at the onsite view. 7. Ms Mackenzie's opinion is that the proposed underboring is a sufficient distance from the structural root zone of the tree. The Aboricultural experts agree that the depth at which a stormwater connection is proposed, subject to an easement being granted, does not adversely impact the Jacaranda Tree on the adjoining land. 8. In the course of the hearing, the Applicant also provided evidence of consent by two of the owners of dwellings at 33-35 Marsden Road, noting the alignment of the proposed future stormwater drainage crosses a corner of two properties at No 4/33-35 Marsden Road and No 7/33-35 Marsden Road that have not provided such consent. Notice of Motion to re-open 1. On 11 April 2024, the Court advised parties that the matter would be listed for judgment the following day. The same day, the Applicant filed a Notice Motion under an Affidavit of Ms Emma Jane Fleming, marked EJF-1, to re-open the proceedings to adduce evidence in respect of the proposed stormwater arrangements proposed in the development. 2. On 12 April 2024, the matter was listed before me for hearing on 2 May 2024, that was subsequently vacated and listed before me on 20 May 2024. 3. An amended Notice of Motion, marked EJF-2 was filed with the Court on 26 April 2024 under Affidavit of the same deponent that was read, unopposed by the Applicant on 20 May 2024. 4. The Applicant submits that no amendment to the application is sought, and that it remains the case that no works are proposed in the downstream easement, and neither does the Applicant purport to provide evidence of owner's consent as this is the subject of a separate and further application. 5. Instead, the Applicant documents the in principle agreement of the Owners Corporation of SP 30787, recorded in Minutes of an Extraordinary General Meeting (EGM) held 21 March 2024, to accept the offer of compensation for the creation of an easement on the common property at 33-35 Marsden Road, St Mary's. The resolution put to that effect in the EGM was resolved in the affirmative. 6. The Notice of Motion marked EJF-2 also contains in principle agreement from the owners of No 3/33-35 Marsden Road, and No 7/33-35 Marsden Road that was not in evidence during the hearing of the substantive proceedings. 7. The Applicant also submits that such agreement is consistent with Section 2.6.1 of the Penrith City Council Stormwater Drainage Guidelines for Building Developments (Exhibit Y), which includes, at (1), written agreement from registered proprietors granting an easement to drain water. 8. The Respondent neither consents to, or opposes the Notice of Motion, however relies upon an Affidavit in the name of Ms Danielle Le Breton filed with the Court on 15 May 2024 that, according to the Respondent, fixes a date at which the Applicant was made aware that owners consent for proposed stormwater drainage was required, but that it was not until 31 January 2024 that letters of offer were sent to those owners at [35]. 9. Furthermore on the basis of the additional evidence the Applicant relies upon, the contentions remain pressed. 10. I consider the material contained in EJF-1 and EJF-2 directed to the contentions as pressed in these proceedings, and I accept that the form of agreement acquired by the Applicant from owners of adjoining land is of a kind consistent with the relevant Stormwater Drainage Guidelines where inter allotment drainage is sought. 11. The amended notice of motion dated 26 April 2024 was granted and, pursuant to Rule 2.1 and Rule 29.5 of the Uniform Civil Procedure Rules 2005 (NSW), and sections 56-58 of the Civil Procedure Act 2005 (NSW), I granted the Applicant leave to re-open the proceedings to adduce further evidence in the forms of Tabs 1-3 of Exhibit EJF-1 of the Affidavit of Emma Jane Fleming affirmed 11 April 2024 and Tabs 1-3 of Exhibit EJF-2 of the Affidavit of Emma Jane Fleming affirmed 26 April 2024. 12. I consider the evidence of assessment undertaken by the Applicant summarised at [29]-[35] in respect of the proposed stormwater drainage to be sufficient for the Court to understand the extent of investigations and likely works required beyond the boundary of the subject site to effect drainage of the site, by gravity, to Carpenter Street. As such, the Court has not deferred consideration of a relevant matter, but rather, has considered the alignment, depth, potential impacts, and points of connection to existing stormwater drainage pipes and pits in the immediate vicinity of the site. 13. While the Respondent relies on aspects of the Court's decision in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41, the factual circumstances differ, in my view, firstly, because of the extent of assessment undertaken by the Applicant as to the potential off site impacts of the stormwater drainage alignment and construction method likely to be adopted; and secondly, because the Applicant in this case has lodged an application for easement which was not the case in Palm Lake (at [50]). The urban heat island effect 1. The Respondent also contends that the proposal fails to demonstrate that planning and design measures have been incorporated to reduce the urban heat island effect. 2. While the concept of an "Urban Heat Island" effect is now widely understood, it is defined in the following terms at cl 7.30 of the PLEP: urban heat island effect is a result of conditions that contribute to higher temperatures in urban areas, including— (a) use of roads, car parks, pavements, roofs, walls and other hard and dark surfaces, and (b) activities that generate heat, including waste air from mechanical cooling systems, and (c) reduction in green infrastructure. 1. Green infrastructure is defined as follows: green infrastructure means the network of green spaces, natural systems and semi-natural systems including waterways, bushland, tree canopy, green ground cover, parks and open spaces, that— (a) supports sustainable communities, and (b) is strategically designed and managed to support a good quality of life in an urban environment. 1. These definitions are contained at subcl (4) of cl 7.30, that is otherwise in the following terms: (1) The objectives of this clause are to— (a) ensure development incorporates planning and design measures to reduce the urban heat island effect in Penrith, and (b) ensure buildings and outdoor spaces are thermally comfortable for people living and working in Penrith, particularly during summer, and (c) promote the cooling benefits of green infrastructure and water in the landscape. (2) This clause applies to land in the following zones— (a) Zone RU5 Village, (b) a residential zone, (c) an employment zone, (d) a mixed use zone, (e) a special purpose zone, (f) a recreation zone, (g) Zone C4 Environmental Living. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that planning and design measures are incorporated to reduce the urban heat island effect that— (a) maximise green infrastructure, and (b) retain water in the landscape, and (c) use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and (d) use building, paving and other materials that minimise heat impacts, and (e) reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources. 1. The Respondent submits that Part C14 of the Penrith Development Control Plan 2014 (PDCP), Urban Heat Management, supplements the provisions at cl 7.30 of the PLEP, and requires the achievement of things to be positively demonstrated, and not merely taken into consideration. 2. Part C14.1 (C) confirms the nexus asserted by the Respondent; "This section is intended to support Penrith Local Environmental Plan 2010 Part 7 Additional Local Provisions, clause 7.30 the Penrith Local Strategic Planning Statement, and the Penrith Cooling the City Strategy and Penrith Resilience Action Plan in managing and mitigating the Urban Heat Island Effect." 1. The background to Part C14 is described, at (A) as follows: "The Western Parkland City has been experiencing a trend of reduced rainfall, increasing temperatures and an increasing duration of extended periods of heat. In addition to the above impacts, the Western Parkland City has experienced increased heat in developed areas, when compared with the temperatures in nearby areas with less development. This is called an Urban Heat Island Effect. This effect results from the impacts of increased urbanisation including the increase in hard, dark surfaces which retain heat and prevent the absorption of water. It is further exacerbated by loss of vegetation. Land in the Western Parkland City is susceptible to urban heat impacts due to the region's existing climate, topography, and geographic position, as well as a large and growing residential population and rapid urban development. … Poorly designed development contributes to the impact of the Urban Heat Island Effect by reducing vegetation, preventing rainwater infiltration, using materials which absorb heat and producing buildings which are not designed to mitigate the impacts of hot weather, thus increasing the risk to the Penrith community." 1. Part C14.2 deals with Landscape Design in the following terms: "1.1 Landscape Design A. Objectives a) To ensure outdoor areas incorporate cooling design elements to provide cool refuge during hot weather events. b) To reduce the contribution of development on the Urban Heat Island Effect in Penrith through: i) integration of grey, green, and blue infrastructure in development, ii) adequate and appropriate provision of landscaping, and iii) Incorporating permeable materials into landscape design. c) Retain and enhance existing vegetation and canopy coverage to reduce the impact of urban heat on the community. d) Deliver appropriate quality and quantity of vegetation as green infrastructure with an integrated design approach to reduce development's contribution to the urban heat island effect. e) To ensure development provides long term solutions to address the Urban Heat Island Effect in Penrith by: i) Delivering green infrastructure which positively contributes to the amenity of the locality, while recognising the context and existing development patterns. ii) Ensuring adequate and appropriate vegetation and conditions for healthy growth are provided, including vegetation that contributes to increasing the amount and health of the local tree canopy. iii) Supporting passive design principles with landscaping to deliver landscaping that contributes to the conservation of energy and supports thermal comfort. B. Controls 1) All required Landscape design plans are to be prepared in accordance with appendix F3. Plans are to demonstrate that: a) Trees are supported by understorey planting. b) Internal and external passive solar access is managed through tree and vegetation selection and location. c) Shading is provided to exposed Western façades. d) Adequate solar access has been provided to the dwelling and any proposed or future solar panels. e) Where feasible, there is shading to parking spaces and paved surfaces. f) Vegetation is co-located with existing trees, and/or clustered to improve its cooling effect, where this is not in conflict with other controls such as planning for bushfire prevention. g) Plantings include drought tolerant and heat resilient varieties and contribute to canopy coverage. h) Where feasible, permeable materials such as dry laid paving, permeable pavers, unbound aggregate, or bound paving are utilised and are appropriate for site conditions. 2) Developments are to be designed to ensure that existing mature trees including street trees can be retained. 3) Tree species selection and location must demonstrate consideration of the Landscape Design and Vegetation Management sections of this DCP, the List of Appropriate Trees, as well as the following: a) Shading effect, including location and maximisation of possible canopy size and density, b) Heat and extreme heat resilience, c) The character and constraints of the locality, d) Planting density, e) Nearby services, public authority requirements, easements, and hardstand areas, f) The availability of tree stock and species that are locally endemic and appropriate to the site, g) Tree pot sizes and mature growth sizes are appropriate for the site and ensure longevity, h) The site conditions, including soil type and salinity, i) NATSPEC "Specifying Trees – a Guide to Assessment of Tree Quality' (Clark, R. 2003), j) Australian Standard AS2303, k) Council's Street and Park Tree Management Plan, l) any disruption of solar access for solar panels on existing or adjoining present and future development should be minimised, and m) Any services or utilities infrastructure within the road reserve, such as power poles, overhead wires, drainage inlet pits, existing street trees and any existing driveways." 1. The experts agree that tree canopy is a significant part of maximising green infrastructure in this development. This includes the shading of buildings to alleviate the accumulation of heat and re-radiation back into the local microclimate. The northern setback 1. The Respondent's first concern is the northern setback of 2m, along which screen hedging is proposed, but which is agreed to be of a width that prevents canopy trees that would provide shade to the roof, walls and outdoor play areas of the proposal. 2. To this end, the Respondent submits that when the following provisions of the PDCP are read together, it is clear that the northern setback is inadequate: 1. The Control at Part D2.6(2)(c) requires side setbacks to provide for effective landscaped separation from adjacent developments, establishing that landscaped setbacks are required. 2. The additional controls for commercial development at Table 2, at Part C14.3 of the DCP provides that landscape setbacks must provide adequate soil area for tree planting and be filled with as many large trees as possible, and that canopy from large trees should be supported with medium and small trees and vegetation to provide a collective cooling effect, where they will not obstruct views, signage, or impact safety. 3. Additionally, Control 2(a) at C14.2, Section 1.4, requires all trees, including street trees, to be located to be so integrated as to produce improved cooling effects through measures such as maximisation of shade provided to exposed building walls. 1. The Respondent submits that the northern setback is so constrained in its dimension and so limited by the soil volume because of the proximity of the basement below that the shrubs and trees nominated in the Landscape plans would fail, or fail to reach the height at maturity due to such limitations. 2. The Landscape plan shows fourteen Syzygium austral, otherwise known as 'Straight and Narrow Lilly Pilly's' and six Prunus cerasifera, or 'Oakville Crimson Spire' planted in this setback. 3. While the planting schedule records a mature height of 5-8m for the Syzygium's, Ms Montgomery's opinion is that the constraints of the northern setback would limit the height at maturity to around 4m. Ms Mackenzie's opinion is a mature height of 6m is likely. 4. Ms Mackenzie and Ms Surian are of the opinion that, notwithstanding non-conformance with the soil volumes nominated at Part C14.2, Section 1.3, the soil volume is sufficient to support the growth of the trees and shrubs listed at [61] through to maturity, or close to it, because of healthy competition for sunshine and nutrients. 5. The Respondent prefers a side setback of 5m to the northern boundary, that Ms Montgomery observes would support large canopy trees to provide shade to both openings in walls and to the roof of the proposal. 6. I note here that Mr Cavallo initially relies on the additional controls for commercial development (C14.2, Section 1.4, Table 2) that states landscape setbacks must provide adequate soil area for tree planting and be filled with as many large trees as possible. However, in his oral evidence, Mr Cavallo also accepts that the application of the control applies where landscaped setbacks are required, and there is no numerical requirement for a landscaped setback beyond the side setback of 900mm. 7. Instead, the Respondent relies on the suite of controls at [59], and by failing to increase the setback to permit canopy trees to shade the building on the north, the Applicant has failed to maximise green infrastructure. The western setback 1. The rear boundary, to the west of the site, is stepped such that the rear setback varies. To the south-west of the site, the setback from the rear boundary fence measures 4030mm. To the north-west, the setback from the rear boundary fence measures 8800mm. 2. The setback of 4030mm is to a basement structure identified on the architectural plans as the onsite detention tank. The Respondent submits planting in this area of the site would not be so constrained if the OSD was relocated elsewhere. 3. That said, the experts agree there is sufficient deep soil for the tree proposed in this location, initially identified as a Liriodendron, but later amended to be replaced by a Crepe Myrtle by consensus of the arboricultural and landscape experts, and shown on the revised Landscape Plans at Exhibit V. 4. The Applicant argues that the greening of Penrith as desired by the provisions of Part C14 of the PDCP will not happen overnight, but will be achieved if replacement and expansion of the tree canopy is allowed to mature over the coming years. 5. The tree canopy coverage proposed on the site is expressed over a twenty year period (Exhibit U), said to demonstrate that the existing canopy, provided by seven trees on the site today, comprising 18% of the site area, will mature to a canopy provided by 27 trees in 2044 that will represent a coverage of 56.5%. 6. Relevantly, when the canopy provided by Tree 7, the Privet, is discounted by virtue of its being an exempt species, or noxious weed, the existing canopy is 14% of the site, and the difference between the canopy coverage today, and in five years from now, is an additional 1.9%. 7. Mr Cavallo accepts that the controls at C14.2, Section 1.1, B (1)(c) nominates that western facades be shaded, with no reference to northern facades. 8. The Applicant submits this is unsurprising as data from the Bureau of Meteorology (Exhibit T) demonstrates Penrith experiences peak temperatures later in the day, when the sun is lower in the sky, and within the western quadrant. 9. Mr Cavallo also agrees that the tree canopy depicted in landscape drawing L-04 is likely an accurate depiction of the tree canopy when mature. 10. Next, the Respondent contends that the proposal fails to preserve high value trees, and that the deep soil area provided is insufficient to support the replacement canopy trees proposed on the site. 11. According to Ms Montgomery, it is reasonable for trees identified as viable specimens to act as a site constraint, informing the design of development. 12. Of the seven trees identified on the site, three are proposed to be retained. The remainder are to be removed. 13. The Applicant submits that the proposal represents a replacement ratio of greater than 6:1, which more than adequately addresses the requirements of Landscape Design, at Part C14.2 of the PDCP. 14. Ms Montgomery accepts there is understorey planting provided to the west of the site, consistent with C14.2, Section 1.1 (B)(1)(a) of the PDCP, and that an acceptable mix of synthetic and natural surfaces are proposed. 15. The experts engaged at length on whether sufficient space is allowed for a syzygium hedge in a 1m wide planter bed proposed to the full length of the western boundary. 16. The planter bed is within the area of deep soil, and is bounded to one side by the proposed acoustic fence. While Ms Surian considers the space sufficient for a 'self-hedging' species such as syzygium, Ms Montgomery seeks a greater distance between the trunk, or stem, of the shrubs and the rear fence. 17. On the final day of the hearing, further amended landscape plans were tendered (Exhibit V), unopposed, comprising the additional tree at [69], and a rear planter bed measuring 1.5m in width. 18. The landscape and arboricultural experts also engaged on three existing trees on the site. Tree 1 1. Tree 1 is an early mature Brush Box identified in The Tree Assessment Schedule annexed to the Amended Arboricultural Impact Assessment (Tree Assessment) (Exhibit M) as having good vigour and fair condition. Tree 1 is a street tree that is to be retained in the proposal. 2. The experts agree that works proposed in the vicinity of this tree may restrict its capacity for root and canopy growth in Tree 1 which Ms Montgomery believes may affect the long term viability of the tree. 3. Ms Montgomery's written evidence is the long-term viability is threatened in three ways: 1. The canopy of Tree 1 requires pruning so that the driveway is not obstructed. Ms Montgomery assesses the extent of pruning to be around 40% of the canopy. 2. In the vicinity of the root zone, the driveway will restrict root growth; and 3. Should a footpath be required, either now or in the future, such a path will also likely restrict root growth. 1. Ms Mackenzie considers the Brush Box a hardy species, commonly seen in and around roadway and footpath surfaces, that only benefits from an amendment to the driveway alignment. 2. Ms Montgomery's oral evidence is that amendments to the driveway shown in architectural plans at Exhibit A reduce the impact on Tree 1, which is now likely to survive, notwithstanding better options exist. Tree 3 1. Tree 3, a Weeping Bottlebrush, is located at the front of the property facing Marsden Road and is proposed to be removed. The Tree Assessment identifies Tree 3 as semi-mature, with good vigour and fair condition. It is agreed to have a medium retention value. 2. Ms Montgomery believes Tree 3 could be retained if the driveway was located even further north, albeit requiring some redesign to the basement it serves. Such an alternative alignment would preserve Tree 3, would not threaten Tree 4, a mature Brush Box located in the road reserve, and Tree 1 would require only minor pruning. 3. The Applicant contests Ms Montgomery's alternative by identifying an area of pathway comprising 'stepping stones' that are commonly laid by scraping back earth to create a bedding of sorts that would be in the vicinity of the Tree Protection Zone that is not accounted for in Ms Montgomery's sketch at Fig 1 of the joint report (Exhibit 6). 4. Ms Mackenzie addresses the contention by stating there are no high retention value trees on the site and that alternatives to the removal of Tree 3 were considered. However, there is also moderate significance to Tree 3, and its removal will allow Tree 2 greater room for growth. Tree 6 1. As stated at [72], a large Privet is located at the property, and is proposed for removal. A permit is not required for the removal of a tree of this species, and the experts agree removal is warranted. 2. A Crepe Myrtle, Tree 6, is in close proximity to the Privet. 3. Ms Mackenzie has applied a low retention value to Tree 6, but acknowledges that no assessment was made of the tree from surrounding properties as stated within the relevant assessment rating system in Annexure 3 of the Arboricultural Assessment. This is because Ms Mackenzie considers it highly unusual for an arborist to seek permission from surrounding property owners for such an assessment. 4. While the experts agree Tree 6 could be retained and transplanted, it is likely the roots intermingle and so could give rise to regrowth of the Privet. To avoid this, the experts agreed the new Crepe Myrtle should be added, which is the additional tree agreed at [83]. Character 1. The Respondent contends the proposal is out of character with the locality and does not satisfy the objectives of the R2 Low Density Residential character at [15], when the existing and future desired character of the neighbourhood is properly understood. 2. In broad terms, the inconsistency with the character derives from an inconsistency with both the built form and landscape character of the area. As it is put in the ASOFAC, on p16, "A residential dwelling development would typically be much smaller in scale; not require an underground basement; and would adopt an OSD located within the basement level and/or under the driveway, and thereby not encroach on deep soil landscaping areas of the site." 3. Firstly, the Respondent contends the proposal does not respond to the scale and character of the street because, in effect, the two-way driveway leading to the basement car park, dominating front façade, blank walls and the like is more akin to a commercial building. 4. The very consolidation of the two lots into one creates a frontage width of 28.765m that is out of character with the street, notwithstanding agreement between the planning experts that the PDCP requires a minimum frontage of 22m for child care development. 5. The planning experts agree the extent of the visual catchment, and also agree that sites that have been redeveloped have generally adopted a two-storey scale and that landscape treatment is an aspect of character in Marsden Street. 6. Likewise, the experts agree further amendments to the proposal improve the presentation of the built form by adopting a more residential appearance due to face brick and render, and two higher forms, topped by pitched roofs. 7. Mr Cavallo notes the southern setback, of around 6m, is acceptable, but "should not be to the detriment of the northern interface". Pushing the built form to the north of the site disrupts the rhythm of development fronting the street, creating an imbalance that has a negative impact. An excerpt from architectural drawing 35, re-produced below, is used to illustrate the imbalance. Built form 1. In the joint report, Mr Cavallo cites Section 3.2, Objective C5 of the NSW Department of Planning, Industry and Environment, Child Care Planning Guidelines, September 2021 (Child Care Planning Guidelines that states child care facilities should: "• contribute to the local area by being designed in such a way to respond to the character of the locality and existing streetscape • build on the valued characteristics of the neighbourhood and draw from the physical surrounds, history and culture of place • reflect the predominant form of surrounding land uses, particularly in low density residential areas • recognise and respond to 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 and local character • use landscaping to positively contribute to the streetscape and neighbouring and neighbourhood amenity • integrate car parking into the building and site landscaping design in residential areas • in R2 Low Density Residential zones, limit outdoor play space to the ground level to reduce impacts on amenity from acoustic fences/barriers onto adjoining residence, except when good design solutions can be achieved." 1. While Mr Cavallo acknowledges that the proposal adopts a number of features and elements that are residential in appearance, the predominant form of existing development in the area, in his opinion, is single storey dwellings clad in weatherboard or fibre cement sheeting. 2. Rather than adopt this character, the proposal presents entry to a basement carpark with retaining walls, a pedestrian ramp leading to a glazed entry, high masonry walls without appropriate relief, and an emergency exit. All of these elements are self-evidently non-residential and not reflective of the predominant built form in the area. 3. By comparison, Mr Cavallo considers recent dual occupancy development at No 26-26A Marsden Road an example of development that minimises its bulk through a mix of materials and appropriate side setbacks at the upper level. 4. To the rear of the proposed development, an outdoor play area located on the first floor is likewise contrary to the Child Care Planning Guidelines advice to limit outdoor play space to the ground level in R2 zones such as is the case here. 5. Such an arrangement, while screened, is out of character with the low density residential environment. 6. Mr Wood accepts that positioning the outdoor play area on the upper level has resulted in a portion of the first floor breaching the building envelope controls contained in the PDCP. However, this is because the outdoor play area is bounded to the south and north by built form that partly encloses and conceals the outdoor play area. The outdoor play area is concealed from the west by glazed screens with an obscuring interlayer or the like to avoid overlooking. Taken together, these moves comprise the 'good design solution' sought by the Child Care Planning Guideline in an R2 zone. 7. The breach described above is an encroachment into the side setback building envelope control depicted in Figure D2.1 of the PDCP, under Part D2.1.2 Setbacks and Building Envelope. The applicable envelope in an R2 zone is delineated by a 45 degree plane originating 1.8m above natural ground surface of the site, measured vertically at the boundary. 8. The Respondent also cites Part D2.6 of the PDCP which deals with non-residential development in residential areas, and which adopts, at control (B)(1) the principles of urban form and urban design that apply to permissible residential development, for non-residential development. Control (B)(2)(c) counsels that particular attention should be given to side setbacks to provide for effective landscaped separation from adjacent developments. 9. However, the Applicant cites the decision in Carpenter Street Centre Pty Ltd atf The Carpenter Street Centre Trust v Penrith City Council [2024] NSWLEC 1005 (Carpenter Street) at [55], in which the provisions at Section D2.6 of the PDCP were found not to impose setback requirements applicable to dwelling houses on non-residential development. Instead, the requirement referred to at Section 2.6(B) is to "principles of urban form and urban design" that are found in the controls and objectives in Part D.2 of the PDCP where design measures, not numerical controls, seek development that complements existing character. 10. Here, as in Carpenter Street, there is no numerical control for side setbacks in Part D5.2 of the PDCP, which deals with child care centres. Solar access impacts 1. The resulting form, bulk and scale is also said to unacceptably overshadow the private open space of the adjoining property to the south, at No 7/33-35 Marsden Road. 2. Furthermore, the Respondent submits that the area identified in the shadow diagrams as private open space to this property includes an area currently used as a carport, and a portion of the common driveway servicing the dwellings on that adjoining site. When this area is discounted, the area of overshadowing must exceed the threshold of 40% of the open space at 7/33-35 Marsden Road in a 3 hour period, which is the focus of control (B)(1)(c) at Section D2.1.6 of the PDCP. As such, control (B)(1)(d) requires that sunlight is not further reduced in this area by more than 20%. 3. During the site view, the Respondent invited the Court to observe that No 7/33-35 Marsden Road enjoys two areas of private open space that are of similar size, linked along the northern boundary. While the criticism made by the Respondent of the calculations that appear on architectural plans 03, 04 and 05 is valid, I accept that when the additional private open space to the west of 7/33-35 Marsden Road is considered, the area receiving sunlight is likely to be greater than 40% of the private open space for a period of 3 hours, noting the controls relied on are for residential development. 4. I also note here that the overshadowing contended is said to be caused by an acoustic fence that is 200mm above the fence which currently stands on the boundary. There are two things to be said about the structures causing the shadow currently, and one thing to be said about the shadow likely to be cast from the proposal. 5. Firstly, the existing fence is higher than the height of a fence permitted by Part D2.1.7 of the PDCP, Garden Design and Fences. Secondly, an existing shed stands in close proximity to the western boundary with 7/33-35 Marsden Road. The height of the shed is also greater than 1800mm. 6. The proposal is to demolish and remove the shed structure, and to install an acoustic screen just inside the boundary of the subject site, depicted on architectural drawing 14. The top 400mm of the acoustic screen is proposed to be clear acrylic. 7. Mr Cavallo believes it is unreasonable to assume that an existing fence that is higher than 1800mm, and which may not benefit from a prior consent, would be acceptable if proposed today, particularly if it is for a commercial purpose in a residential context. However, Mr Cavallo accepts, as I do, that the clear portion of fencing above 1800mm reduces the impact of overshadowing caused by that portion. 8. Likewise, I consider a clear extension to the height of fencing that is, in effect, in place today by virtue of the existing height of the fence, to cause no great visual impact to 7/33-35 Marsden Road. The proposal is compatible with the character 1. The planning experts identify the visual catchment in an aerial image at par 4.1 of the joint report. The visual catchment extends to embrace the northern portion of Marsden Road that is zoned R3 Medium Density Residential, in which residential flat buildings are permitted. 2. Basement car parking is a common aspect of residential flat buildings, and so I consider it inevitable that the future character of the visual catchment will comprise residential flat buildings with basement car parking and ramps serving such basements. 3. The ramp to the basement in the proposal is carefully sited between Tree 1 and Tree 4, with an offset between the vehicular cross over and an operable door that screens the basement from Marsden Road. I consider the basement and driveway treatment compatible with the street, especially when the wide area of unshaded hardstand to the property to the north, and long driveway to 33-35 Marsden Road to the south, is taken into account. 4. According to the plant schedule on Landscape plan L-01, the landscape treatment to the frontage comprises canopy trees likely to grow to 15m in height, with a canopy spread in the order of 8.5m, below which under storey planting is also proposed. 5. Mr Cavallo relies on the predominance of single storey weatherboard and fibre cement dwellings in the street. However, the Child Care Planning Guidelines also promote a response to the valued characteristics of the neighbourhood, and for landscape to make a positive contribution to the streetscape. Weatherboard is not evident in recent development within the agreed visual catchment, other than the single example of dual occupancy development cited by Mr Cavallo at [108]. 6. The front setback is in the order of 7.5m, which is identified on architectural plan 06 to be the average setback of all properties on the western side of Marsden Road, between White Parade and Carpenter Street. 7. Unlike the majority of front setbacks in the street, the proposal is well-landscaped, with three angophora floribunda canopy trees proposed, that are under-planted by native species that vary from 500mm – 2m in height, consistent with Part C14.3, Section 1.1, Control B(1)(a) of the PDCP. On the basis of the site view, it may be said the landscape proposed does not reflect the predominant form of surrounding properties, which generally display sparsely planted front setbacks, but perhaps more responds to the valued characteristics of the neighbourhood, when provisions of the PDCP are the focal point of consideration. 8. Part C1.2.3(b) of the PDCP requires an applicant to demonstrate how any building's height, bulk and scale will avoid or minimise negative impacts on an area's landscape, taking into account the topography of the area, the surrounding landscape and views to and from the site. 9. In respect of setbacks and separation, at Part C1.2.3(e)(i), I consider the front setback consistent with the streetscape in the vicinity. 10. Notwithstanding the breach of the height plane by the first floor on the northern side, the northern setback exceeds the side setbacks that are currently, and that are likely to be evident in the street as the area develops. 11. While the proposal is not wholly contained within the building envelope described at [112], I find the proposal compatible with the existing and desired future character of the area for the reasons that follow: 1. Firstly, the northern setback at the ground floor is greater than twice the setback of 900mm that applies to residential dwellings in the area at Part D2.1.2, Control B1(d), and the setback of 3000mm at Level 1 is clearly greater by a factor of three. 2. Secondly, the northern setback provides, at ground level and level 1, for effective landscaped setback separation to the adjoining dwelling, consistent with the Control at Part D2.6(B)(2)(c) of the PDCP. In particular, the setback of 3000mm at Level 1 permits the setback likely to be needed by the canopy of the 'Oakville Crimson Spire' 3. Thirdly, I do not accept Mr Cavallo's characterisation at [104], that the setback of the built form to the north of the site disrupts the rhythm of development fronting the street, creating an imbalance with negatively impacts. Rather, for reasons similar to those at [126], in my view the character of properties either side of the subject site are in some way anomalous in the street. Openings in that portion of the upper level outside the envelope control do not permit sightlines to adjoining or nearby properties, and given the orientation, the additional built form in this location does not overshadow. 1. As I consider that portion of built form that exceeds the building envelope to be minor, and provide a utility without imposing an adverse impact on the amenity of the adjoining property, I note the control at Part D2, Section 2.1.2 (B)(2)(b)(iv) of the PDCP provides for such an encroachment. 2. Additionally, when the objectives of Section 2.1.2 of the PDCP are considered, I also accept the Applicant's submission that s 4.15(3A)(b) of the EPA Act provides for the flexible application of standards where the proposal achieves the objects of those standard. 3. The objectives at Part D2.1.2 of the PDCP in respect of setbacks are as follows: "Building setbacks and envelopes are established to: a) reflect the character of established garden suburbs, b) provide for establishment of vegetation and reasonable separation between buildings c) To provide a high level of visual and acoustic privacy for residents and neighbours in dwellings and private open space. d) To ensure that building design minimises overlooking problems e) achieve site-responsive development f) protect the amenity of occupants by controlling: i) visual impacts relating to height and bulk of buildings; ii) the impact of loss of privacy, overshadowing and loss of views." 1. The Respondent submits that Control B1 of Part D2.6 transfers residential controls to non-residential development. However, that control merely invokes "principles of urban form and urban design that apply to permissible residential development". I note the nine instances of the term 'principle' or 'principles' that appear in Part D2 Residential Development are in respect of: 1. Traditional principles of orientation and articulation on corner sites and sites with park frontages (Part D2.2.11) 2. Living rooms and entrance should face the street, and / or the landscaped rear boundary setback; and private gardens fill the setback area. (Part D2.4.4 Urban Form, and Part D2.5.4 Urban Form) 3. Allotments with a second street frontage or adjoining a public park (Part D2.4.11 and Part D2.5.11) 1. I do not accept that, on a close read, Control B1, Part D2.6 requires the transfer of all residential controls to non-residential development. That said, Control B(2) requires 'particular attention' to side setbacks to provide effective landscape separation. 2. Likewise, I do not accept the Respondent's submission that Control B(2), when read with the additional controls at Part C14.2, Section 1.4, Control B(1)(a) can be read to require a setback determined by the spread of a large tree, or of 5m as Ms Montgomery opines. 3. The Control at Part C14.2, Section 1.4(B)(1)(a) is for a landscaped setback, where required, to provide two things: 1. Firstly, provide adequate soil area for tree planting and 2. Secondly, as many large trees as possible. 1. The northern setback required by the control at [134] is 900mm, and I do not understand the provisions of Part D2.6 and Part C14.3 to override the side setback provision which is otherwise clear and which, at least according to the Respondent's submission, applies to non-residential development. 2. I also accept that the plants selected for the northern setback are likely to reach maturity of around 6m for the reasons that follow: 1. The northern orientation will receive sunlight through the year. 2. The planter bed in which the plants at [61] are planted is deep soil 1500mm wide. I note the Syzygium is expected to spread 1.2m at maturity. 3. A Landscape Maintenance program (Exhibit G) requires establishment maintenance for the first 12 weeks, and maintenance by the contractor for 12 months after installation by a qualified horticulturalist. 4. An ongoing monthly maintenance schedule is to include: 1. Monitoring of the irrigation system 2. Replacing dead plants 3. Replenishment of mulch 4. Suppression of weed growth 5. Pruning, fertilising and staking of plants as required 6. Treatment of pest and disease. 1. Even at 6m, the proposed planting to the northern setback does not qualify as large trees, according to Part C14, Section 1.3 Table 1 of the PDCP. However at 6m, I note the planting is likely to mature as a dense hedge, at or around the height of the gutterline to the pitched roof of the proposal. At this height, the landscaping will provide shade to exposed walls facing north, consistent with Part C14.3, Section 1.4 B(2)(a) of the PDCP. I also note that at this height, while shading is provided, no disruption of the photovoltaic (PV) cells on the roof of the proposal is likely, consistent with Part C14.3, Section 1.4 B(2)(b) of the PDCP. 2. In locations that coincide with north-facing window openings, a Prunus is proposed. I note the Prunus, or Oakville Crimson Spire, is deciduous so as to admit greater sunlight in winter months, and less sunlight in summer months. When considered in combination with the awnings over the moderate number and size of north facing window openings, which I consider an acceptable alternative solution to eaves, consistent with Part C14.4, Control B(3) and (4), I accept internal solar access is managed through tree and vegetation selection and location, consistent with Part C14.2, Section 1.1, Control (B)(1)(b). 3. The proposal is a permissible use with the R2 zone, and is within the height permitted by the height of building standard at cl 4.3 of the PLEP, and complies with the floor space ratio standard applicable to the site at s 3.25 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP), and displays materials and finishes that reflect those in the street when recent development is taken into account. 4. On the basis of the onsite view, I note the disruption to rhythm depicted in the image at [104] derives more from the substantial setback of the multi dwelling development at 33-35 Marsden Road and driveway that occupies its frontage, than from the setbacks of the proposal from its boundaries. 5. The bulk and scale of the proposal adopts a residential language in its built form, materials and finishes that departs from the bulk and scale of residential dwellings in the area by virtue of the scale of the consolidated site it occupies in conformity with the desire for a minimum 22m frontage for children care centre development; and because it is not a dwelling, and so inevitably departs in certain terms from presenting strictly as a dwelling. Sustainability 1. The Respondent contends the proposal fails to demonstrate how it will operate in a sustainable manner that combines positive environmental, social and economic outcomes, particularly in relation to natural ventilation, natural light and heating and energy efficiency. 2. I note here that the planning experts agree a number of the particulars are either relevant to earlier versions of the proposal and are no longer relevant, or are resolved. 3. The issue on which the experts engage is whether details on energy consumption, plant and equipment and landscape are sufficiently addressed so that less energy is consumed, less waste is generated and fewer operational costs result. 4. Mr Wood notes the ESD Report, prepared by Senica dated 1 March 2024 contains information on material selections, but acknowledges details of a sort required by the control at (B)(1) of Section C14.3 of the PDCP, Cool Colours and Materials may be lacking. 5. The relevant control provides: "A materials and finishes schedule is to be provided, and must include: a) product specifications where certain materials are relied upon to address the criteria of BASIX, Section J of the NCC or this DCP. b) Product specifications should include energy efficiency properties, such as: i) thermal mass, ii) effect on air flow, iii) appropriate colour and reflectivity, and iv) material permeability in landscape design." 1. The Applicant submits that a materials and finishes board accompanies the architectural plans. 2. The Respondent submits the ESD Report is deficient as it is silent on the product specification of external walls, roofs and the like. 3. The text in the main body of the ESD Report appears somewhat unhelpful in terms expected by Part C14.3 of the PDCP. It includes numerous statements that are promissory and not demonstrative. 4. For instance, where particular (f) would appear clear in its terms, seeking product specifications for energy efficiency properties, including thermal mass, the ESD Report states: "Proposed building walls have been selected for the external walls of the development because of their thermal mass and to aid in passive heating and cooling of the building. These external walls will have insulation to the internal side to limit heat loss in winter and minimise excessive heat gain in summer. As such, it is considered that they are consistent with current requirements and are anticipated to ensure the thermal comfort of their occupants year round. The current building design identify that the roof will be light in colour. This will assist in ensuring that excessive heat is not gained in summer for the identified units, as the light colour will encourage less absorption and more reflectance." 1. However, the ESD Report contains Appendices that appear more directed to the task required by Part C14.3 of the PDCP. 2. Appendix B of the ESD Report, which appears to have been prepared using software known as Speckel, states at p1: "Speckle provides various calculations in line with the National Construction Code 2022 – Volume 1 – Section J Energy Efficiency. These calculations are in line with all applicable NCC equations or NCC referenced primary or secondary documents, for them to represent an accurate performance solution against the performance requirements – J1P1 Energy Use. A Performance Solution must be shown to comply with the relevant Performance Requirements through one or a combination of Assessment Methods. Speckel is a valid Assessment Method by comparison with Deemed-to-Satisfy provisions of each relevant area." 1. The method adopted in the assessment set out in Appendix B is summarised as follows: 1. The proposed building has been modelled with the proposed building fabric, and compared against a reference design. 2. Greenhouse gas (GHG) emission factors adopted in the assessment are from Volume 1, Specification 34 Modelling Parameters for J1V3 Table S34C3 GHG Emission Factors (kgCO2-e/GJ). 1. The results summarised in Appendix B are as follows: 1. A simulation of the proposal produces building emissions of 112.84 kg/CO2-e/m2, which is less than the emissions in the reference design of 151.18 kg/CO2-e/m2) 2. The R-values of all walls modelled include the effects of thermal bridging. 3. External brick veneer is given an R value of 2.09 (m2k°/W) 4. Roofs are given an R value of 3.20 (m2k°/W) 5. Windows are given a U-value of 3.50, and a solar heat gain co-efficient (SHGC) of 0.35. 6. PV cells are given an area, ascribed efficiency factors and a system size or capacity in kWh. 1. In summary, and absent evidence to the contrary, it would appear the energy efficiency properties of the proposed development have been modelled, and have been compared to a reference building that has concludes the proposal has a thermal performance greater than a reference design. 2. A Solar Access Assessment at Appendix C likewise sets out the parameters of its study. 3. A Deemed-to-Satisfy assessment of the National Construction Code (NCC) requirements at Part J is at Appendix E. On p3 of the Appendix, the method is described as a whole façade performance, comprising walls and glazing, with each elevation mapped according to orientation. 4. No overshadowing or shading is assumed in the modelling, unlike the circumstances likely to result from landscaping planting over time on this site. 5. In all of the appendices, properties of the brick veneer construction shown on the architectural plans to the first floor are included, including values for conductivity, air cavity, membrane performance and the aggregate composition of the wall assembly. 6. Roofing design is also identified in the controls at Part C14.3. Control (2) is in the following terms: "Dark coloured roofs which retain heat will not be supported. All buildings and ancillary development are to minimise their contribution to the urban heat island effect by meeting the following requirements for cool roofs: a) Achieve the nominated Solar Reflectance Index (SRI) minimums: i) for roof pitches less than 15, a SRI minimum of 64, with a minimum 3 year manufacturer guarantee. ii) for roof pitches greater than 15, a SRI minimum of 34, with a minimum 3-year manufacturer guarantee. iii) for rooftop terraces a SRI minimum of 28, with a minimum 3-year manufacturer guarantee. b) At least 75% of the roof area is to meet nominated SRI values and/or be designed as a green roof. Areas where solar panels (PV) are mounted flat on a roof are excluded, all other roof areas with PV count toward the Cool Roof area calculation." 1. The Respondent submits that while some of the proposed roofing may be of a solar reflectance that conforms with the control, not all of the roof is Colorbond. Instead, the roof plan identifies area of concrete roof, on which PV cells are located. No calculation is provided as to the SRI values of the roof, nor the proportion of roof excluded by the PV cells in accordance with Control (2)(b). 2. The SRI of the roof is stated to be a minimum of 34, with a 3 year guarantee from the manufacturer. (Exhibit C, p20). While the colour of the concrete roof is not separately described, I accept that concrete when poured, cured and waterproofed is unlikely to be characterised as a dark coloured roof. 3. It is also relevant to record that, following a question from the Court as to an apparent error or omission on the architectural plans and section drawing, further amended architectural plans and further amended landscape plans were tendered, unopposed. 4. The further amended architectural plans (Exhibit W) show an area of the roof to the east of the lift, fronting Marsden Road, to have deep planting of around 600mm in depth, and a width in plan of 2.1m. 5. While not an insubstantial area of rooftop landscape, the Respondent considers the planter to fall short of answering the definition of 'green roof' at Part C14.1 (D) which is: "Green roof: A green roof is vegetation covering at least 30% of available rooftop space ‐that is, space which is not occupied by structures housing plant, equipment, or stairway accesses. A green roof should provide measurable environmental benefits. The green roof includes a vegetated layer, growing medium, and a waterproof membrane. Plants grown in sectioned lots are acceptable, however, potted plants/planter boxes which cover less than 30% of available rooftop space are not considered as a green roof. Additional to the minimum 30% vegetation cover, a green roof can include facilities for renewable energy, water collection infrastructure, walkways, furnishings, and the like." 1. Whether the area of deep landscape planting on the roof is a green roof or not, I consider such an area of planting within the roof plane to be a positive impact on urban heat, and serve to limit negative impacts of heat absorption through such a substantial, and deep, area of landscape planting, consistent with the objectives of Part C14.3 (A) of the PDCP. 2. Clause 7.4 of the PLEP requires the Court to have regard to the principles of sustainable development by considering each of the following, that are relevant to the development: (a) conserving energy and reducing carbon dioxide emissions, (b) embodied energy in materials and building processes, (c) building design and orientation, (d) passive solar design and day lighting, (e) natural ventilation, (f) energy efficiency and conservation, (g) water conservation and water reuse, (h) waste minimisation and recycling, (i) reduction of vehicle dependence, (j) potential for adaptive reuse. 1. As stated above, I am satisfied that the ESD Report adequately addresses the energy conservation and energy efficiency measures required to be considered by cl 7.4 of the PLEP. In terms of building design and passive solar and daylighting, I consider the orientation of the building, with eaves and awnings to windows exposed to northern sunlight, suited to capturing northern daylight in the 3-5 year old indoor play areas at appropriate times of the year, and excluding the same at times when the sun is higher in the sky. 2. As it is agreed that landscape planting provides shading to the western elevation (at [73]) and I find the landscape planting selected to provide shading at appropriate times of the year to the northern elevation (at [144]-[145]), I also consider the contribution made by the landscape design in the western and northern setbacks to be a positive aspect of passive solar design. 3. As for natural ventilation, I accept there are limits the extent to which the development can be naturally ventilated given the perceptions of noise in residential areas that are addressed in more detail below, and as addressed by the Court in Basevski v City of Ryde Council [2022] NSWLEC 1387, at [74]-[80]. Notwithstanding those limitations, the planning experts agree that natural ventilating is provided by doors to play rooms that are permitted to remain open other than when amplified music or singing occurs. 4. I consider the proposal for water reuse and conservation in the form of onsite rainwater tanks for reuse in irrigation, and water efficiency appliances to be acceptable features of the development. 5. I also consider the Waste Management Plan prepared by Dickens Solutions dated March 2022 (Exhibit E, Tab 18) to satisfactorily address waste minimisation and recycling. Acoustic impact 1. The Respondent contends that the proposal has unacceptable acoustic impacts to Nos 27, 33-35 Marsden Road and 10 White Parade. 2. An Amended Noise Impact Assessment, prepared by Day Design Pty Ltd, dated 5 December 2023 (Acoustic Assessment) (Exhibit J) identifies noise sensitive receptors in the vicinity of the subject site, located on Marsden Road and to the rear at 10 White Parade. 3. In order to determine background Noise Levels for the site, ambient noise levels were logged between 10 February 2022 – 22 February 2022, ranging from 44 dBA in the early morning to 34 dBA between 7am – 6pm. 4. Mr Cooper considers the location of certain loggers and receivers located by Mr Gauld in the preparation of the Acoustic Assessment to be deficient, and the method adopted by Mr Gauld to be at odds with the appropriate method of determining the background level, which is by reference to the National Policy for Industry (NPfI) that requires long term, operator-attended monitoring. This is not how the ambient noise levels were taken by Mr Gauld. 5. Elsewhere in the first joint report, I note the experts agree that the noise criteria within the NPfI are not applicable to noise emission from child care centres (para 152). 6. In reply, Mr Gauld argues that attended monitoring would not have any effect on the background noise level. Nevertheless, he attended site on 6 February 2024 to obtain attended measurements that correlate with measurements taken prior. 7. The Acoustic Assessment concludes that, on the basis of measurements and calculations undertaken, the level of noise emitted by the proposed development will meet acceptable noise level requirements of the Council, the Child Care Planning Guidelines, and the Guideline for Child Care Centre Acoustic Assessment, published by the Australasian Association of Acoustic Consultants (AAAC) (the AAAC Guideline). 8. The acoustic experts differ on the relevance and weight that should be given by the Court to the AAAC Guideline. 9. Most relevantly, version 3.0 of the AAAC Guideline recommends adopting a background noise level for outdoor play areas of Leq,15min 45 dB(A) for child care centres proposed in residential areas where the background noise level is less than 40 dB(A). 10. As I understand it, this means, in quiet residential areas, where the background noise level is less than 40 db(A), a baseline or default factor of 45 dB(A) should be adopted. 11. The Acoustic Assessment adopts such a baseline factor, which Mr Cooper objects to because Mr Gauld has not provided material that substantiates the amended criteria in version 3 of the AAAC. Furthermore, under the earlier version of the AAAC Guideline, no default background level applied to outdoor play. As such, a site with the background noise levels at [182] are likely to have had a limit of 39 dBA applied to outdoor play under the earlier version of the AAAC Guideline and a limit of 45 dBA under the current AAAC Guideline. 12. Mr Cooper sets out his own preferred practice when applying the AAAC Guideline at para 143 of the initial joint report, noting a level of 45 dBA is a significant increase above the noise level of 34 dBA experienced by most residents in the area today. 13. Mr Gauld's evidence is that the AACA Guideline was developed to fill a void where no specific policy applicable to child care centres otherwise exists, and to resolve differences of opinion between acoustical professionals. 14. The Applicant submits that Mr Cooper's opposition to the AAAC Guideline is at odds with evidence given in other matters before the Court (Exhibit S), where Mr Cooper appears to rely on the AAAC Guideline. Cumulative assessment of noise 1. The joint expert report initially prepared by the acoustic experts was filed with the Court on 19 February 2024. In it, the experts noted that as particular (h) of the acoustic contention, Contention 6, was not pressed, no further consideration had been given to that particular. 2. However, at the onsite view two weeks later on 4 March 2024, the Respondent advised particular (h) was indeed pressed. The Court directed the experts to confer on that topic, and on areas that had also been identified in the initial joint report as unresolved, including the review by Mr Cooper of calculations provided by Mr Gauld in Annexure C of the joint report filed two weeks earlier. On 5 March 2024, the experts filed a supplementary joint expert report (Exhibit 9). 3. Contention 6, particular (h) is in the following terms: "The acoustic assessment has not included noise from outdoor play place [sic] in the cumulative noise assessment. Section 6.4.1 of the acoustic report only refers to the cumulative impacts of noises emitted from indoor play, car noise and mechanical plant. The level of noise impact is likely to be greater than contemplated in the acoustic report when noise from outdoor play is included in the cumulative assessment." 1. It is commonly held that versions 2 and 3 of the AAAC Guideline require noise from outdoor play to be calculated and expressed separately from the cumulative noise from indoor play, traffic and mechanical plant. 2. The Amended Noise Impact Assessment, prepared by Day Design dated 5 December 2023 (Acoustic Assessment) (Exhibit J) followed the requirement of the AAAC Guideline, but did not calculate the cumulative result of combining outdoor play with that of indoor play, traffic and mechanical plant. 3. Section 6.4.1 of the Acoustic Assessment sets out the noise levels derived from indoor play, car noise and mechanical plant. 4. Section 6.4.2 sets out the noise levels derived from outdoor play areas. The basis of these levels derives from separating the 80 children into three groups, described as follows: "Group A: Ground Floor Outdoor Play Area 10 x 0-2 year olds (10 children); and 5 groups of 2 x 2-3 years olds (10 children). Group B: First Floor Level outdoor play area 3 groups of 10 x 3-5 years olds (30). Group C: Ground Floor Outdoor Play Area 5 groups of 2 x 3-5 year olds (10 children). First Floor Level Outdoor Play Area 2 groups of 7 x 3-5 year olds (14 children); and 6 x 3-5 year olds (6 children)." 1. In the period available following the onsite view, Mr Gauld relies on the addition of the calculations contained in the above assessments to derive a cumulative figure sought by the particular. 2. On the assumption that 50 children are playing outside, and all 80 children proposed on the site are inside, simultaneously, then the cumulative noise generated is 45.8dBA, being less than 1 dBA above the noise criteria of 45 dBA for outdoor play. 3. Mr Gauld also provides alternative scenarios, consistent with the Plan of Management (Exhibit D), including: 1. Where Group A (50 children) are outside, the remaining 30 children would be inside. 2. Where Group B (20 children) are outside, the remaining 60 children would be inside, 3. Where 30 children are playing outside, the remaining 50 children would be inside. 1. In all scenarios, Mr Gauld notes the cumulative noise generated onsite by indoor play, traffic and mechanical ventilation, and by children playing outside, is less than 1 dBA above the noise from children playing outside alone. 2. The experts agree that the noise levels in the Acoustic Assessment set out in Table 7 (Exhibit J) is based on all the children inside at the same time, engaged in active play. Further, that if less than all the children were inside, so some were outside, the calculated noise level for indoor noise would be lower than the figures presented in Table 7. 3. However, Mr Cooper notes: 1. The noise registered at Location R3 resulting from Group C increases from 45.4 dBA to 45.6 dBA; and 2. that additional noise levels at Receiver R2A is likely to exceed the 45 dBA background by 2 dBA. 3. Indoor play noise levels may exceed those modelled by Mr Gauld depending on the final selection of floor finishes and the like. Findings 1. Part D5.2(6) of the PDCP provides guidance in respect of noise for child care centre development. "6) Noise a) Outside playing areas shall be designed and located to minimise noise impact on any noise sensitive adjacent properties. Separation between boundary fencing and areas occupied by the children may be required. b) Where there may be noise impact on adjacent properties, fencing shall be of a height, design and material (e.g. masonry) suitable to contain noise generated by the children's activities. This ensures the children may play outside without time limitations in accordance with licensing requirements. c) Where a site may be affected by traffic, rail or aircraft noise, the child care centre shall be designed to minimise any impact on the children and staff. A report from an acoustic consultant may be required to support the proposal. (Design elements may include double glazing, insulated walls, locating sleeping rooms in protected areas and solid fencing). d) A noise impact assessment may be required for the development of a child care centre proposing to cater for 40 children or more, or where surrounding land uses may have an impact on the proposal. The objectives should be to limit the impact of the child care centre on adjacent properties, and also to limit the impact noise from external sources may have on the child care centre. While noise can be measured, the intent is to also minimise nuisance which is subjective by nature. This may be achieved either by physical separation, design and layout of the centre or by implementing noise mitigation measures, such as acoustic treatments to buildings. e) A noise impact assessment report should address the relevant provisions of the Noise and Vibration section of this Plan." 1. The Acoustic Assessment assesses the acoustic impact of the proposed development by measuring noise levels on the site, and by identifying residential receptors on adjoining properties. Additionally, it calculates the cumulative noise levels generated by indoor play, car and traffic noise and mechanical plant, and outdoor play areas. Finally, the Acoustic Assessment proposes a noise management plan setting out recommendations for sound barrier walls, mechanical plant and the like. 2. I accept that the AAAC guideline is a reasonable basis for assessment. The Court is familiar with the AAAC Guideline, having accepted it as an appropriate guideline in Raland Constructions Pty Ltd v Hunters Hill Council [2021] NSWLEC 1535. Likewise, the Court accepted the efficacy of the same AAAC Guideline in Force Way Group Pty Limited v City of Parramatta Council [2021] NSWLEC 1024. 3. The AAAC Guidelines has been developed by professional acoustic practitioners, within the forum of a recognised professional organisation, and is particular to child care facilities such as the proposed development. 4. While it is not a statutory document, it is unreasonable, in my view, for Mr Cooper to describe an industry standard, developed by a professional membership organization such as the AAAC as 'unsubstantiated', or for any burden to substantiate an industry standard to fall to Mr Gauld. Conclusion 1. Clause 7.30 of PLEP precludes the grant of consent unless the consent authority, or the Court exercising the functions and discretions of the consent authority on appeal, is satisfied in respect of five things: (a) maximise green infrastructure, and (b) retain water in the landscape, and (c) use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and (d) use building, paving and other materials that minimise heat impacts, and (e) reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources. 1. I am satisfied the proposal maximises green infrastructure in the following ways: 1. Firstly, through a comprehensive plan for landscape planting in the front setback, northern setback and western setbacks in particular that demonstrates conformity with the controls at Section C14.2 of the PDCP such as supporting new and existing trees with understorey planting that, when mature, will provide effective shading to the western facades, and outdoor play areas proposed, and by providing passive solar shading and solar access through species selection, noting in particular the role of the Oakville Crimson Spire within the northern setback in providing solar access to indoor spaces in winter (at [145]), while not overshadowing solar panels proposed on the rooftop. 2. Secondly, by the expansion of tree canopy beyond that evident today, I accept the method by which the Applicant calculates the extent of tree canopy growing over time, as summarised at [70]-[72]. Adopting such a method assists in an assessment of the impact of tree removal, and canopy loss, alongside the medium to long term nature of landscaping, especially where canopy trees are desired. 3. Thirdly, by integrating landscape planting into the building at the perimeter of the outdoor play area on Level 1, and in the large, deep planter proposed on the roof that, while it does not answer the description of a 'green roof', is substantially consistent with the controls for green roofs at Part C14.2, Section 1.2(B)(1), including: 1. The roof structure supporting the planter is concrete, and so possesses the appropriate load bearing and waterproofing characteristics to support the installation of green features. 2. Plants nominated on the plant schedule provide coverage and are resilient to extreme heat and drought, with no reasons why the area cannot be supported by an automatic watering system to irrigate the area, connected to the onsite rainwater tank. 3. The proposal is authored by a landscape architect and a maintenance plan is proposed (Landscape Maintenance Plan) (Exhibit G), and supported by conditions of consent, agreed as without prejudice by the parties. 1. Next, I am satisfied the proposal retains water in the landscape in three ways: 1. Firstly, through the detention of stormwater and rainfall in onsite detention that is available for reuse on site in irrigation, in terms similar to those at [178]. 2. Secondly, by reference to the Landscape Maintenance Plan, an irrigation system that I understand is to be connected to the rainwater tank, is to be provided. 3. Thirdly, through the proposal for 'waterplay' and 'splash table', identified on the landscape plans and located to the south of the site (Exhibit V) 1. On the basis of those reasons at [158]-[162], and the following design measures, I am satisfied the thermal performance of the development achieves a high degree of passive cooling. 2. The architectural plans depict masonry construction, recognised to have high thermal mass and performance, finished in light coloured render and paint, with minimal paving that, taken together, I am satisfied minimises heat impacts. While the proposal also depicts areas of artificial, or synthetic turf, I note the 0-5 year old outdoor play area on the ground floor is substantially covered by the first floor structure, providing shelter and shade that will also minimise heat impacts, and protect children from over exposure to ultraviolet radiation, in accordance with section 4.11 of the Child Care Planning Guidelines. That portion of synthetic turf not covered by the level above is located to the south of the proposal. Finally, I note the selection of the synthetic turf, set out in the Landscape Maintenance Plan, is for 'All Seasons Cool Play'. 3. Finally, I am satisfied the proposal reduces its reliance on mechanical ventilation and cooling systems by adopting areas of deep soil and layered landscape planting to the western setback that provides shading from western sun; in similar terms to [175], by proposing eaves and awnings over north facing walls and windows, and through shading devices to open outdoor play areas. On the basis of the area of glass block roofing integrated into the level 1 outdoor play area, which admits daylight to the ground floor 2-3 year old indoor play area, and the solar access assessment at Appendix C of the ESD Report (that does not appear to consider the area of glass block flooring), I am also satisfied the proposal conserves energy and minimises heat sources. 4. In Part D5.2 of the PDCP, Section A, background to the provisions applicable to child care centres sets out reasons a proposal for a child care centre will not be supported, including: "a) the service provided by the centre does not meet a demonstrated need for child care services in the local area; b) access is from a major road or in close proximity to a major intersection where there may be safety concerns; c) access is from a local street where there may be impacts on amenity due to traffic and parking; d) the current use or any permissible use under the zoning of the adjoining premises produces unacceptable levels of noise, fumes or emissions, or poses a potential hazard by reason of activities or materials stored on site; e) noise produced by roads, railways and aircraft are likely to have an adverse impact on the site; or f) the site may be subject to contamination, within close proximity to high-voltage electricity transmission lines, or subject to external impacts that may be harmful to the staff and children; unless the applicant can demonstrate satisfactorily that the matters listed will not have a detrimental impact on the child care centre." 1. For reasons set out earlier in this decision, and on the basis of satisfaction as to jurisdictional preconditions to the grant of consent set out below, I am of the view that the Applicant has demonstrated satisfactorily that the proposal does not offend any of the reasons above, and so should be supported by the grant of consent. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. In a manner similar to that summarised at [213], I have considered the extent of tree removal proposed by the development, and replacement landscape planting and maintenance. I conclude that the extent of vegetation proposed to be cleared is acceptable when the extent of replacement planting is considered. As such, I see no reason why the consent granted by the Court should not also extend to the proposed clearing, pursuant to s 2.6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. Section 3.23 of the Infrastructure SEPP precludes the grant of consent until and unless the consent authority, or the Court on appeal, has considered any applicable provisions of the Child Care Planning Guidelines. 2. Childcare Guideline C1 counsels proponents of such facilities to consider the acoustic and privacy impacts of the proposal in residential areas such as this, and to give consideration to setbacks and siting, visual amenity and traffic and parking impacts. 3. Childcare Guideline C5 and C12 fall within local character, streetscape and public domain interface. For reasons set out at [124]-[148], I have considered those issues and conclude the development is not contrary to either C5 or C12. 4. Childcare Guideline C17 counsels that appropriate planting should be provided and for that to be integrated with fencing. The proposal does so, particularly to the north, west and south boundaries with neighbours. 5. Childcare Guidelines C23 and C24 deal with acoustic privacy and noise levels that, for reasons set out at [180]-[211] are satisfactorily addressed. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Consistent with the terms of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazard SEPP) I have given consideration to the potential contamination of the site. 2. The Applicant relies upon a Preliminary Site Investigation (PSI) prepared by GCA dated 22 February 2022 that concludes the site is suitable for the purpose of the development proposed to be carried out, subject to recommendation at p 18 of the PSI, and about which there are conditions of consent proposed. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development application DA22/0435 for demolition of existing structures, vegetation removal, site consolidation and construction of a new centre-based child care facility with a capacity of 80 children, including basement car parking for 20 vehicles at 29 and 31 Marsden Road, St Marys NSW 2760 is determined by the grant of consent, subject to conditions of consent at Annexure A. 3. All Exhibits are returned, except for Exhibits E, F, J, K, and W. T Horton Commissioner of the Court Annexure A ********** 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: 14 June 2024