Land and Environment Court New South Wales Medium Neutral Citation: Gladesville WW Pty Ltd v City of Ryde [2025] NSWLEC 1042 Hearing dates: 25-27 November 2024 Date of orders: 28 January 2025 Decision date: 28 January 2025 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant, Gladesville WW Pty Ltd, is to pay the Council's costs thrown away as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development consent is granted to Development Application LDA2022/0023 for the demolition of existing structures and construction of a mixed-use development that comprises a part 2 and part 3 storey mixed use development including medical centre, child care centre, supermarket, liquor store, associated parking and lot consolidation at Lot 6 in Deposited Plan 598121 and Lot 19 in Deposited Plan 10402 otherwise described as 130 Pittwater Road & 57 Thompson Street, Gladesville, subject to conditions of consent at Annexure A. (4) All Exhibits are returned, except for Exhibits B, R, X and 11. Catchwords: DEVELOPMENT APPLICATION: Mixed use development in E1 zone and R2 zone – height standard is exceeded – FSR standard is exceeded – whether amenity impacts on residential zone is acceptable – centre based child care facility - public submissions are considered Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.3, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 39 Education and Care Services National Regulations (2011) Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 39 Ryde Local Environmental Plan 2014, cll 2.3, 4.3, 4.4, 4.5, 4.6, 6.1, 6.2, 6.4 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, 2.120, 2.122, 3.22, 3.23, 3.26, Sch 3 Cases Cited: Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 Bettar v Council of the City of Sydney [2014] NSWLEC 1070 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582 Mulpha Norwest Pty Ltd v The Hills Shire Council (No 2) [2020] NSWLEC 74 Wehbe v Pittwater Council (2007) 156 LGERA 446 Texts Cited: Childcare Centre Planning Guidelines 2021 Guideline for Child Care Centre Acoustic Assessment (version 3), published by the Association of Australasian Acoustical Consultants PCA Shopping Centres Directory NSW 2023 Ryde Development Control Plan 2014 Travel Plan Guidelines: Maximising the use of sustainable modes of travel, published by the City of Ryde Council Category: Principal judgment Parties: Gladesville WW Pty Ltd (Applicant) City of Ryde (Respondent) Representation: Counsel: J Reid (Applicant) G Farland (Respondent) Solicitors: Thomson Geer (Applicant) Council of the City of Ryde (Respondent) File Number(s): 2023/328534 Publication restriction: Nil Judgment 1. COMMISSIONER: The existing Woolworths supermarket in Gladesville is a single storey brick building with a glazed shopfront addressing Pittwater Road, and provision for car parking at the rear. 2. Another supermarket known as Harris Farm, is located to the immediate south of the site the subject of these proceedings, with access to basement parking located on the boundary shared with the site. 3. Surrounding development on Pittwater Road is typical of a small town centre comprising shops such as a pharmacy, restaurants and cafes, a dentist, and the Boronia Park Uniting Church. 4. Development Application LDA2022/0023 seeks consent for the demolition of the existing building housing Woolworths, to permit construction of a mixed-use development over five levels, consisting of basement car parking, retail premises and loading docks, a cafe, medical centre and a liquor store on ground floor; parking at level 1 and a child care facility at level 2, together with lot consolidation. 5. The site comprises two lots legally identified as Lot 6 in Deposited Plan 598121 and Lot 9 in Deposited Plan 10402. Relevantly, one lot fronts Pittwater Road, while another addresses Thompson Street. 6. The two lots are located in two adjoining land use zones, identified in the Ryde Local Environmental Plan 2014 (RLEP). Lot 6 fronting Pittwater Road is in the E1 Local Centre zone, while Lot 9 addressing Thompson Street is in the R2 Low Density Residential zone. 7. In essence, it is how the interface between the development and the low density residential development in Thompson Street is addressed that is of concern to the Council of the City of Ryde (the Council) - a concern shared by residents of the properties located in the immediate vicinity of the site. 8. The application form that accompanies the DA is dated 10 December 2021, however it is commonly held the DA was lodged on 24 January 2022. 9. The Council refused the DA on 13 April 2024. The Applicant in these proceedings, Gladesville WW Pty Ltd (Gladesville WW), now appeals Council's refusal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 10. Gladesville WW has been granted leave to rely upon amended plans and other documents prior to proceedings. 11. At the outset of the hearing, Gladesville WW sought to further amend the application before the Court by Notice of Motion. The Court granted the Council's application for an adjournment to consider the extent of changes. 12. At the resumption, the Council advised it did not oppose the Motion, however considered the amended plans and other documents to be more than minor. 13. The Court granted Gladesville WW leave to rely upon amended plans and other documents contained in the Notice of Motion, later marked Exhibit R, comprising the following: 1. Amended architectural plans (Tab 3) 2. Amended Landscape Plans (Tab 4) 3. Photomontages, prepared by AE (Tab 5) 4. November letter of advice – Mechanical Plant relocation – Acoustics (Tab 6) 5. Noise Impact Assessment prepared by Benbow (Tab 7) 6. Clause 4.6 Variation Building Height (Tab 8) 7. Clause 4.6 Variation Floor Space Ratio (Tab 9) 1. The Council, as the relevant consent authority, agreed to Gladesville WW amending the DA in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), in force at the time of lodgement, subject to Gladesville WW paying the Council's costs thrown away as assessed or agreed pursuant to s 8.15(3) of the EPA Act. 2. Gladesville WW sought to further amend the development application on the final day of the hearing, with amendments said to be responsive to expert evidence heard the day prior. 3. While the Council submitted that it was prejudiced by the late amendments, the timely serving of those amendments in accordance with the Court's direction, and the origin of those amendments being largely as a result of joint expert conferencing weigh in favour of the application made by Gladesville WW, in my view. However, I considered changes to the level 2 slab and landscaping a more open question given the potential impact on acoustic modelling that informed the joint report prepared by the acoustic experts (Exhibit 5). 4. The amendments necessitated the recall of experts in planning and urban design, and in acoustics, to consider what the Council describes as 'interlocking' issues, that were multi-disciplinary in nature. 5. The Court granted Gladesville WW leave to rely on further amended architectural plans, Landscape Plans, and an amended written request in respect of floor space ratio (FSR), which substituted those so marked at [13]. 6. The Court also exercised its power under s 39(2) of the Land and Environment Court Act 1979 to agree to further amendment to the development application in terms identical to that at [14]. To be clear, this includes a view that the further amendments to Level 2, considered further at [159]-[166] and [178]-[183], are more than minor and it is appropriate to direct Gladesville WW to pay the Council's costs thrown away as a result of that aspect of the amendments for which leave was granted. 7. It is also relevant to note here that on 8 January 2025, the Court notified parties that written advice from Transport for NSW, referred to in submissions, was not in evidence. Directions were made as to the timing of any submissions on the matter and evidence of the same was filed by Gladesville WW on 21 January 2025. Height is exceeded 1. The proposed development exceeds the height permitted on the site by virtue of the height of buildings standard of 9.5m at cl 4.3 of the RLEP, and Gladesville WW relies on a written request authored by Think Planners dated 22 November 2024 and prepared in accordance with cl 4.6 of the RLEP (the Height request) (Exhibit R, Tab 8). 2. The site, and some properties adjoining the site, appear to have been the subject of cut and fill in the past so that a form of benching is suggested on the subject site, and those to the north and west of the site. 3. As such, the Height request states its primary reliance is on height as determined in the decision of Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582 (Merman method). By reference to this method, a level taken at the existing basement, less 300mm for the assumed thickness of the slab, establishes the level of historical excavation. Adopting the Merman method artificially exaggerates the height in numerical terms when compared with height measured from an interpolated level that is consistent with the method described in Bettar v Council of the City of Sydney [2014] NSWLEC 1070 ('Bettar') (the Bettar method). 4. The Height request firstly describes the exceedance of the height standard using the Merman method in the following terms: 1. Pittwater Road: Roof element is 2.3m-2.59m (27.3%) above the height standard. 2. Child Care roof edge: 2.38m (25.05%) towards Pittwater Road that also accommodates the refuge area. 3. Child Care western edge of play area: 1.64m (17.2%) to the acoustic barrier that is 1.8m high. 1. When the Bettar method is applied to the site, the Height request describes the exceedance of the height standard like so: 1. Pittwater Road: Roof element is 337mm (3.5%) above the height standard. 2. Child Care roof edge: 403mm (4.24%) towards Pittwater Road that also accommodates the refuge area. 3. Child Care western edge of play area: 980mm (10.3%) to the acoustic barrier that is 1.8m high. 1. In Bettar, the Court found that height should be determined by reference to topography as one aspect of the proposal's context. Here, as in Bettar, at [42], nothing turns on which definition is adopted, as the proposal exceeds the height standard regardless of the method used. 2. Three dimensional images of the competing methods are found in Figures 1-4 of the Height request. 3. The height request relies on the first test as it is expressed in Wehbe v Pittwater Council (2007) 156 LGERA 446 (Wehbe), otherwise known as 'Wehbe 1', in asserting compliance with the height standard is unreasonable and unnecessary, as the objectives of the standard are achieved notwithstanding the non-compliance with the standard. 4. The objectives of the height standard at cl 4.3 of the height standard are: (a) to ensure that street frontages of development are in proportion with and in keeping with the character of nearby development, (b) to minimise overshadowing and to ensure that development is generally compatible with or improves the appearance of the area, (c) to encourage a consolidation pattern and sustainable integrated land use and transport development around key public transport infrastructure, (d) to minimise the impact of development on the amenity of surrounding properties, (e) to emphasise road frontages along road corridors. 1. The Height request asserts the objectives are achieved for reasons summarised as follows: 1. In respect of objective (a), the non-compliance at the uppermost level is limited to the roof form and acoustic barrier located at the rear of the site that is not perceived from the street frontage, being lower than the height of the existing building to its south, and so is in proportion and in character with nearby development. 2. In respect of objective (b), overshadowing impacts are minimised by being located towards the centre of the site so as to not impose shadows greater than a compliant scheme, and because the rear of the development adjoining the R2 zone is well below the maximum height permitted to minimise the impact on those adjoining properties. Furthermore, the development proposed is compatible with the desired future character of the area when the stepped built form of the Harris Farm development to the south of the site and relevant planning controls are read in context. Finally, when the proposal is compared with the surface car park to the rear of the existing site, the proposal improves the appearance of the area. 3. While the Height request considers objective (c) to be of limited relevance to the proposal, the allotments comprising the site are proposed to be consolidated, enabling an integrated use of land in proximity to bus services on Pittwater Road. 4. In respect of objective (d), the impact on the amenity of surrounding properties is minimised in the following ways: 1. The proposed built form is concentrated to Pittwater Road where there are limited impacts on amenity as a result of the exceedance, and which enables the remainder of the built form to be lowered towards the rear of the site or, in the case of the site at No 57 Thompson Street, where virtually no built form is located that would impose an impact. As such, the exceedance of the roof form is at a distance from the sensitive interface with the R2 land and the exceedance caused by the acoustic barrier is minor, and serves the function of ensuring compliance with acoustic noise criteria and protects visual privacy. 2. Architectural drawings A600-A606 demonstrate that an acceptable level of solar access to adjoining properties is maintained. 3. No view loss will result. 4. A lowering of the proposed built form would result in a partly sunken interface with the Pittwater Road frontage that would be a poor outcome of no benefit given the greater height of the existing Harris Farm development to the south. 1. The Height request also relies on environmental planning grounds it considers sufficient to justify the contravention of the height standard in accordance with cl 4.6(3)(b) of the RLEP that may be summarised as follows: 1. A large component of the exceedance is artificial and is distorted by prior excavation on the site. When an interpolated approach is taken the exceedance is negligible and does not generate adverse impacts on surrounding properties such as visual privacy or overshadowing. This is due in part to a decision to locate bulk to the eastern portion of the site, which allows the western portion adjoining properties to be well below the height permitted. 2. The exceedance is due, in part, because of steps taken to ensure appropriate acoustic attenuation measures at the upper level outdoor play area associated with the proposed child care. To avoid the exceedance, a lowering of the proposed built form is possible. However, such a move would result in a partly sunken interface with the Pittwater Road frontage that would be a poor outcome of no benefit given the greater height of the existing Harris Farm development to the south. 3. The exceedance of the roof form is at a distance from the sensitive interface with the R2 land and the exceedance caused by the acoustic barrier is minor, and serves the function of ensuring compliance with acoustic noise criteria and protects visual privacy. 4. The exceedance enables development that is consistent with objects at s 1.3 of the EPA Act, by promoting the orderly and economic use and development of the land (subs (c)), and promoting good design and amenity of the built environment (subs (g)). 1. In considering the matters that are required to be addressed by the Height request at cl 4.6(3) of the RLEP, it is helpful to consider the evidence of the experts and submissions made by the parties. 2. The experts retained by the parties to assist the Court in its consideration of planning and urban design issues in dispute are: 1. Planning: Mr Jonathan Wood, on behalf of Gladesville WW, and Ms Deborah Laidlaw, on behalf of the Council. 2. Urban design: Mr Rohan Dickson, on behalf of Gladesville WW, and Mr Russell Olsson, on behalf of the Council. 1. At the outset it is relevant to record the experts agree the objectives at cl 4.3 of the RLEP are achieved, but for some aspects of objective (b), and objective (d) which is to minimise the impact of development on the amenity of surrounding properties. 2. Ms Laidlaw sets out her concerns in respect of height from par 95 and onwards in the joint expert report (Exhibit 6), that may be captured most succinctly in her view that "the combination of height, visual bulk and poor design of development is unsympathetic to and uncharacteristic of the character, amenity and outlook of properties within the adjoining R2 zone. The development includes walls facing this area that are at, or around, 9 metres in height, and presenting a vertical face largely without any significant design features or articulation to ameliorate the appearance of visual bulk." 3. Ms Laidlaw also considers the setbacks to the western boundary insufficient, and Mr Olsson believes the impact on views from 2A Gannet Street remains unknown due to insufficient modelling from that location. 4. For reasons that will become clear, it is my view that the concerns expressed by Council's experts are addressed in the amended plans, and are adequately addressed in the Height request. 5. The Height request also sets out the basis on which it says the proposal is consistent with the objectives of the E1 zone. The objectives addressed in the Height request are not those evident in the Land Use Table at cl 2.3 of the RLEP. 6. The objectives addressed by the Height request are: To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. To encourage employment opportunities in accessible locations. 1. However, the objectives for development in the E1 zone are in fact: • To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area. • To encourage investment in local commercial development that generates employment opportunities and economic growth. • To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council's strategic planning for residential development in the area. • To encourage business, retail, community and other non-residential land uses on the ground floor of buildings. • To encourage employment opportunities in accessible locations. 1. While the objectives addressed are at odds with those now in force, I accept Mr Wood's addressed these objectives in his oral evidence, uncontested by Ms Laidlaw, and I accept that the proposal is consistent with the relevant objectives by proposing retail, business and community uses on the site that serve the needs of people in the area. The proposed supermarket, medical centre, liquor store and childcare centre fit such a description and also encourage investment and generate employment opportunities. While the proposal does not include residential development, the development is for non-residential uses, including on the ground floor, on a site served by a bus stop. 2. As the proposal is consistent with the objectives of the height standard, and those of the E1 zone, I am satisfied the development as proposed is in the public interest. In forming the required state of satisfaction, I give considerable weight to the bias shown in placing bulk towards Pittwater Road where it is in proportion, and compatible with, the adjoining Harris Farm development. As such, the proposal is not out of step, and is not other than in keeping, with nearby development on Pittwater Road. 3. I also find the setback of built form from residential development to the west sufficient to allow deep soil that can support substantial landscaping that is likely to enhance the amenity of properties to the west. 4. In the setback that adjoins the rear yard of 2A Gannet Street and 53 Thompson Street, Spotted Gum, Water Gum, Smooth Barked Apple and Lilly Pilly are proposed within a setback that ranges from a minimum of 3m at Basement level 1 and 2, to 6m at the ground floor. 5. In the setback that adjoins the side and rear of 57 Thompson Street, a mix of trees and other planting is proposed, including NSW Christmas Bush, Purple Glory Trees, and Sweet Pittosporum in a setback of 1800mm, beyond which is a 1m wide pedestrian path, intended as egress from Basement 1 and 2 in the event of fire, and so unlikely to attract much foot traffic. Trees identified in the Proposed Plant Schedule (Exhibit R, Tab 4, Drawing DA-L101) range in height from 5m to 12m, and in soil that is at an RL above the natural ground line in the eastern side setback of 57 Thompson Street. When these heights and levels are understood, it seems to me that the photomontage at Figure 11 of the joint expert report (Exhibit 6), and those contained in Exhibit R, Tab 5, on which the experts conferred, fail to depict landscape planting at the height likely to be achieved. For completeness I do not question the accuracy of the built form modelled in the photomontages. Instead, the failure appears to be in the extent to which the levels and heights of proposed plants shown in the Plant Schedule were considered. When the proposed levels and height of planting is properly understood, a greater degree of privacy and screening is likely to 57 Thompson Street than is implied by the photomontages. 6. Next, when the proximity of the built form to 57 Thompson Street is understood, the curved car park ramp depicted in Figure 11 is located more than 12m from the eastern boundary to 57 Thompson Street. This car park ramp is within the height limit. That portion of the proposal that exceeds the height standard, whether measured according to the Bettar or Merman method, is more than 16m from the eastern boundary. 7. These forms are setback even further from the eastern boundary of the site shared with 2A Gannet Street. 8. That said, it is the Level 1 carpark slab that is more likely to be within the sightline of a viewer from the rear yard of 2A Gannet Street and the secondary dwelling located close to the boundary at 53 Thompson Street. The setback of this carpark slab, perimeter upstand, and screen, is dimensioned at 13.09m on architectural drawing A0205. Built form that is proposed within this setback is around 4m high above the deep soil adjacent to the boundary, and not closer than 6m from the boundary. Such an arrangement is very similar to the built form depicted to the rear of the Harris Farm development in its height and setback. However, these are not the features or elements of the built form that exceed the height standard. Instead, that is the Level 2 slab and its upstand and acoustic screen. These elements are setback in the order of 29m from the boundary shared with 2A Gannet Street and 53 Thompson Street. 9. When the degree of setback, the degree of exceedance and nature of the landscaped buffer are understood in combination, I accept that the proposed development is compatible with development in the area, and does not impose amenity impacts on surrounding properties. 10. Turning attention to the Pittwater Road frontage, I accept the position advanced in the Height request that the proposal is below the height of the Harris Farm development. According to the Pittwater Road elevation (A0300), the proposal is around 4m lower when viewed from the east, having the effect of stepping down as Pittwater Road also slopes to the north. No incongruity or incompatibility with character is evident when either the 2 dimensional or 3 dimensional images are read. 11. Accordingly, I am satisfied that the objectives at cl 4.3(1) of the RLEP are achieved and the environmental planning grounds advanced in the Height request sufficiently justify the contravention. 12. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the RLEP. As I find there to be no such matters of significance, the Court, exercising its power under s 39(6) of the LEC Act deems the Secretary's concurrence and so I find there are no grounds on which the Court should not uphold the written request. Floor Space Ratio is exceeded 1. The proposed development also exceeds the FSR permitted on the site. As stated earlier, the site includes land in the E1 zone and R2 zone. The FSR differs between the land included in the different zones. 2. According to the relevant map at cl 4.4(2) of the RLEP, the FSR permitted on the land in the E1 zone is 0.8:1 and the FSR permitted on the land in the R2 zone is 0.5:1. 3. The FSR of the proposed development is assessed by Gladesville WW in three ways: 1. The FSR includes the floor space of the bathrooms in Basement 1, as shown on architectural plan DA-0500 Rev T. 2. The FSR includes the floor space of the end of trip facilities in Basement 1 as shown on architectural plan DA0500 Rev B. 3. The FSR includes end of trip facilities in Basement 1 but excludes bathrooms from Basement 1 on the basis they are non-habitable rooms in a basement as shown on architectural plan DA0500 Rev A. 1. Just as there are three ways to describe the FSR on the site, there are also three ways to express the exceedance of the FSR standard at cl 4.4 of the RLEP. However, there is no dispute that the proposal exceeds the FSR permitted on the site. 2. Accordingly, Gladesville WW relies upon a written request prepared by Think Planners dated 27 November 2024 in accordance with cl 4.6 of the RLEP (FSR Request) (Exhibit R, Tab 9). 3. The result is FSR expressed in three formulations: 1. Firstly, the FSR incorporating the floor space of the bathrooms in Basement 1, results in a FSR of 0.983:1. 2. Secondly, the FSR incorporating the floor space of the end of trip facilities in Basement 1, results in a FSR of 0.991:1. 3. Thirdly, the FSR incorporating end of trip facilities in Basement 1 but excluding bathrooms from Basement 1 results in a FSR of 0.975:1. 1. At the outset, the FSR Request asserts that the arrangement of floor space on the site has taken into consideration the interface with adjoining properties in the R2 land by relocating floor space permitted on the R2 land in Thompson Street to that part of the site in the E1 zone. In doing so, the FSR expressed at [58], when distributed across the entirety of the site, is reduced to figures I will come to later. 2. Next, the FSR Request also considers the exceedance to be somewhat moderated by the proportion of area that is below ground level, and by those areas in the proposal that are excluded from the calculation of gross floor area, such as the loading dock and car parking at Level 1. 3. When those areas above ground that contribute to FSR are expressed as a FSR on the area of the site zoned E1, the FSR is 0.47:1. So understood, the FSR Request argues that while the FSR is non-compliant, the envelope of built form that is perceived from beyond the site is consistent with the built form and massing anticipated on the site. 4. As with the Height request, the FSR Request relies on what is commonly known as the 'Wehbe 1' test to assert that compliance with the FSR standard applicable to the site is unreasonable or unnecessary in the circumstances of this case because the objectives of the FSR standard are achieved, notwithstanding the non-compliance. Whether compliance is unreasonable or unnecessary 1. The relevant objectives at cl 4.4 of the RLEP are: (a) to provide effective control over the bulk of future development, (b) to allow appropriate levels of development for specific areas, … 1. In respect of objective (a), the extent of FSR evident 'above ground' is less than the FSR permitted on the site. The non-compliance results from the inclusion of Gross Floor Area (GFA) within the basement and from the addition of GFA otherwise permitted on that portion of the site zoned R2. Including GFA permitted on the R2 land to that portion zoned E1 avoids building bulk at a sensitive interface. 2. Viewed in this way, the bulk and scale proposed is suitable notwithstanding the non-compliance with the FSR Standard. Three dimensional images included in the FSR request, like that re-produced below, are said to demonstrate that the development sits comfortably in its context, with a bulk that is comparable to the adjoining Harris Farm development, and with a stepping down to the west in the direction of the R2 land which mitigates impacts from the development. 1. Apportioning GFA in this way is itself a means of controlling the bulk of the development which is in line with what is contemplated for the site, but with an improved interface to the R2 zone. For built form to be arranged otherwise, would impose a greater impact to those dwellings in the R2 zone. 2. In respect of objective (b), an appropriate level of development is achieved not only in the apparent visual bulk, but when the proposed intensity of use is considered in terms of the scale of the proposed supermarket and attendant impacts such as traffic and acoustics. 3. The scale of the proposed supermarket is limited to a neighbourhood supermarket rather than a 'full-line' supermarket that would be prohibited at a greater scale than that proposed. The trading area of 788.7m2 is larger than the existing trading area by 213.7m2 but by what is said to not be a significant increase, and not one that impacts on the desired retail hierarchy of such a neighbourhood centre. 4. The FSR Request states that such impacts are considered by the relevant experts to be acceptable, and other potential impacts such as noise and privacy are avoided by GFA being located below ground. 5. As the FSR Request asserts that the relevant experts regard the impacts arising from traffic and acoustics to be acceptable, it is helpful to briefly consider the evidence of those experts. 6. For reasons that are set out in greater detail at [156]-[166] I accept the statement made in the FSR request as to the ultimate agreement of the acoustic experts that the impacts resulting from the proposal are acceptable. 7. However, the agreement of the traffic engineers is more qualified. Once again, I have opted to consider the full range of traffic and parking matters later, at [102]-[154]. It is true that the traffic experts agree a great many things, but they do not agree on all aspects of the proposal. 8. I am mindful here of the evaluative role of the Court when considering whether an applicant's written request has demonstrated the achievement of outcomes such as those at cl 4.6(3)(a) of the RLEP. 9. Only if the FSR Request demonstrates the achievement of the outcomes sought by cl 4.6(3)(a) can the Court be satisfied that the FSR Request has adequately addressed the matters required to be demonstrated. In order to be so satisfied, the Court might need to form a view about whether the matters have in fact been achieved: Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61, at [78]-[79]. 10. As I understand it, the FSR Request adopts the intensity of use as an indicia of the level of appropriateness of development by reference to the terms at objective (b) of cl 4.4 of the RLEP. For reasons that will be addressed in more detail at [102]-[154], I consider it correct to invoke the agreement between the traffic experts in respect of the intensity of the uses proposed. This is because the traffic experts concur that the car parking provided for the customers of the retail component, and all parking demand arising from the non-retail uses is acceptable. As I will further elaborate, the area of disagreement between the traffic experts is as to the parking for retail staff, which is agreed to be a fixed number and not so directly a result of the intensity of use. 11. As such, I am satisfied that the FSR Request demonstrates that the objectives of the FSR standard are addressed in terms required by cl 4.6(3)(a) of the RLEP. Whether environmental planning grounds are sufficient 1. The FSR request also sets out environmental planning grounds it considers sufficient to justify the contravention of the FSR standard summarised as follows: 1. A fundamental aspect of the proposal is to preference development on that part of the site zoned E1 so that building bulk is concentrated towards Pittwater Road. Such an approach limits impacts to the adjoining R2 land and contains development within a more 'useable' portion of the site that also adopts the general bulk and scale of existing development fronting Pittwater Road, such as the Harris Farm development to the south. 2. The extent of exceedance is largely attributed to the addition of GFA that is otherwise permitted on the R2 land at 57 Thompson Street, to that portion of the site that is more distant from residential dwellings in the R2 zone. 3. For reasons similar to those at [68] and [69], the scale of the proposed supermarket is limited to a neighbourhood supermarket rather than a 'full-line' supermarket and while this is larger than the existing trading area, the exceedance is largely below ground, is not a significant increase and not one that impacts on the desired retail hierarchy of such a neighbourhood centre, or on the surrounding road network by the traffic generated. 4. By locating the proposed supermarket below ground, the height of 5m required by such a use is concealed, and does not contribute to the bulk of the built form when viewed in context. The approach adopted is supported by the attributes of the site itself, including: 1. The site's dual frontage. 2. The site's topography that falls to the west such that built form is suited to a location towards the east of the site, and where uses requiring greater height are able to be located below ground, while uses suited to lower floor-to-floor heights, such as car parking, are located above ground. 3. The benefits that flow from positioning the additional GFA associated with the supermarket below ground where any adverse impacts are able to be minimised, including the enclosure of the loading dock that is currently exposed. 4. The additional GFA does not itself generate adverse impacts on adjoining properties such as visual privacy, visual bulk, overshadowing or view loss. 5. The exceedance enables development that is consistent with objects at s 1.3 of the EPA Act, by promoting the orderly and economic use and development of the land (subs (c)), and promoting good design and amenity of the built environment (subs (g)). 1. The planning and urban design experts agree, at par 3 of the supplementary joint report (Exhibit 9), filed 22 November 2024, that the FSR exceeds the combined GFA permitted across the two lots. I also note here that the experts consider the figure of 1578.8m2 in the table on architectural plan A0500 to be erroneous. 2. Two things are to be said about the GFA. Firstly, plan A0500 referred to by the experts has been superseded by a later revision that revises the total GFA on the site to 1626.1m2, with the resulting FSR expressed as 0.748:1. This formulation of the FSR includes the area of staff bathroom facilities within Basement 1. Drawing A0500/A excludes bathroom facilities in Basement 1 that understand to be accessible by customers, resulting in an FSR expressed as 0.742:1, and drawing A0500/B includes end of trip facilities for staff, including staff bathroom facilities, resulting in an FSR expressed as 0.754:1. 3. Secondly, adopting the reasoning in the Court's decision in Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181, at [78]-[81], the end of trip facilities proposed in Basement 2 fall within the exclusion of gross floor in the Dictionary of the RLEP. 4. Experts for Gladesville WW identify that the RDCP lacks controls that would otherwise provide guidance on the preferred arrangement of bulk on the site. Absent any such controls, the preferencing of bulk towards Pittwater Road, and stepping of the built form down to the residential properties in the R2 zone is considered appropriate. 5. As I understand the position of the Council's experts, it is the proposal's bulk and scale when viewed from the residential properties to the west that is considered excessive. The issue is exacerbated by areas that clearly contribute to the bulk of the development but do not, of themselves, fall within the definition of FSR. 6. The Council submits that there is no mechanism that permits the transfer of GFA between lots that would support the argument advanced in the FSR request in respect of objective a) at cl 4.4 of the RLEP, summarised at [64]. 7. However, this is not entirely the case for two reasons. Firstly, Gladesville WW does not argue that it seeks to transfer the FSR. Instead, it argues that there is no FSR proposed on that portion of the site in the R2 land, and that "the variation is a function of the careful placement of the GFA onto the E1 zoned part of the site – i.e. concentrating the GFA on that site and not providing GFA on the R2 portion of the site to achieve a suitable design response and transition of built form relative to adjoining R2 low density properties in a manner similar to the adjoining development at 126 Pittwater Road" (at p 6). 8. Secondly, Gladesville WW, in written submissions, identifies the provision at cl 4.5(9) of the RLEP that, in effect, permits an equivalent quantity of floor area to be apportioned to one lot, if the creation of floor area on another lot is precluded. While not described as a transfer of GFA between lots, Gladesville WW submits that a condition of consent requiring a covenant to be registered to this effect would not be opposed. 9. These reasons distinguish the circumstances of this case from that relied on by the Council in Mulpha Norwest Pty Ltd v The Hills Shire Council (No 2) [2020] NSWLEC 74 where the Applicant sought to argue the FSR was dictated by the site of the development and not by the land for which FSR was specified. The FSR request does in fact separately calculate the FSR on the two lots comprising the site. 10. As shown in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ('Initial Action'), cl 4.6 is facultative, and permits a consent authority to grant development consent for development even though that development would contravene a development standard imposed by an environmental planning instrument (Initial Action, at [9]). 11. It is the mechanism of cl 4.6 by which Gladesville WW proposes a quantum of FSR on the site. The FSR request adequately addresses those matters at cl 4.6(3) of the RLEP 1. The FSR request relies on the existing built form of the Harris Farm development to support its argument that compliance with the FSR standard is unreasonable or unnecessary (cl 4.6(3)(a)) and as an environmental planning ground (cl 4.6(3)(b)). 2. The Council submits that reliance on the Harris Farm development as a benchmark for compatibility is misguided given its approval under a different planning regime, and where that consent relied firstly on existing use rights, and secondly on the basis of only a minor exceedance. 3. I accept that the preferencing of floor space away from the residential interface, to that part of the site zoned E1, is an environmental planning ground. Such a move, along with the decision to locate the supermarket and its associated storage below ground, results in a built form that is visually compatible with the development on the western side of Pittwater Road. 4. The Council may also be correct that the Harris Farm development is development originally approved under a different planning regime. While this may be the case, I accept the position taken in the FSR request that argues the built form of the Harris Farm development is existing built form with which the proposed development is compatible. 5. I accept the bulk of the proposed development, when viewed from any angle in either the private or public domain is compatible with the existing development on the western side of Pittwater Road. 6. That compatibility is also supported by findings at [155], that the traffic impacts are acceptable, and at [166] the same in respect of the acoustic impacts. These findings support the assertion on p 6 of the FSR request that the intensity of the proposed uses on the site is an appropriate level of development, notwithstanding the non-compliance with the FSR standard. 7. As such, I am satisfied that the FSR request demonstrates it is unreasonable or unnecessary to comply with the FSR standard on the site as the objectives of the FSR standard are achieved notwithstanding the non-compliance. 8. I am also satisfied that the environmental planning grounds advanced in the FSR request are sufficient to justify the contravention because the built form is compatible; the stepped form of the development moderates the exceedance and because the impacts to surrounding properties is acceptable. 9. For reasons that are identical to those at [41], I accept the proposal is consistent with objectives for development in the E1 zone, notwithstanding the FSR request fails to address the correct objectives in writing. 10. In forming this opinion of satisfaction, I adopt the reasons set out at [42]-[50] to support a conclusion that the bulk and scale of the development will be acceptable when viewed from properties in the R2 land to the west. 11. Likewise, I also accept the notion advanced in the FSR request that it is not the visual appearance of bulk alone that determines density, but also the intensity of uses proposed. 12. Density may be thought of as not only a question of visual impact but of what unseen consequences may flow from an exceedance. Just as 'matter' has its equal in dark or anti matter, density that is visible in its built form has a counter that is not seen, but which may be experienced nonetheless. 13. A key aspect of the potential or likely impacts that arise from the unseen FSR 'below ground' is identified by both the Council and residents in terms of traffic and parking generated by the development. As stated at [155], I consider the traffic and parking impacts acceptable for the reasons I will now, for completeness, explore more fully. Parking is provided for retail uses 1. Carparking is proposed to be split, with parking for cars and trucks to be divided between 3 levels of the development as follows: 1. Parking for visitors to the childcare and medical centre component is proposed on Basement 2. 2. Parking for retail staff is proposed on Ground floor, to the rear of those retail uses. 3. Parking for customers of the retail uses is proposed on Level 1. 1. A Traffic and Parking Impact Assessment, prepared by McLaren Traffic Engineering and Road Safety Consultants dated 14 July 2023 (the TPIA) (Exhibit L) supports the proposal. 2. I note here that the traffic experts agree parking for non-retail uses proposed onsite complies with parking rates set out in the Ryde Development Control Plan 2014 (RDCP) and is therefore satisfactory. 3. However, the number of parking spaces serving the proposed retail component does not. Neither, for that matter, does the existing retail, the Woolworths supermarket. 4. The traffic experts also agree that the current provision of 12 parking spaces on site represents a shortfall of 19 spaces from the agreed total of 31 derived from the car parking demand, which has a flow on effect that sees staff and visitors park in nearby streets. (Exhibit 4, Annexure C) 5. The Parking rates at Part 9.3 of the Ryde Development Control Plan 2014 (RDCP) requires 1 car parking space/25m2 GFA of retail space within the development. 6. However, rather than rely on the parking rates in Part 9.3, the traffic experts agree that a parking demand and impact assessment is the preferred means to derive appropriate car parking numbers for the retail component on the site. 7. Mr Daniel Fonken, traffic expert for Gladesville WW, commissioned parking and patronage surveys, according to a methodology agreed with the Council's expert, Mr Jason Rudd. 8. The traffic experts agree there is a shortfall in the number of car parking spaces provided, although they differ as to how this shortfall is best calculated. 9. The difference in opinion lies in the level of increased visitation expected for the retail component of the development. Estimates in respect of such an increase are the subject of a joint expert report prepared by economic experts, Mr Peter Layshon for Gladesville WW, and Mr Adrian Hack on behalf of Council (Exhibit 3). 10. In summary, Mr Layshon is of the view that car trips will increase by somewhere between 18.7% and 22.5%, based on the surveyed floor area, while Mr Hack believes an increase of between 25%-30%. 11. The traffic experts adopt the range of between 18%-30%. 12. In a supplementary joint expert report, the traffic experts agree the proposed retail component is expected to increase the peak parking demand from 31 spaces by between 4-7 spaces, for a total of between 35-38 spaces. As the proposal increases parking spaces from 12 spaces on the site today, to 34 spaces – an increase of parking spaces above the existing provision is proposed. 13. Factoring in multi-purpose trips, such as a visit to the supermarket followed by a visit the liquor store, the experts agree three parking spaces are required for the liquor store, and so 34 parking spaces are required for the supermarket. 14. The Table at par 2.1.7 of the supplementary joint expert traffic report (Exhibit 10) concludes that providing the number of parking spaces above results in a reduction in the existing deficit of 19 parking spaces by between 1-5 spaces. 15. More specifically, in terms of customer parking, the traffic experts agree that the shortfall of customer parking spaces will be eliminated when an increase of 30% in visitation is assumed, and will result in an excess or surplus of 3 customer parking spaces assuming an increase in visitation of 18.7% is achieved. 16. The experts also agree that the parking survey performed by McLaren Traffic Engineering (Exhibit 4, Annexure B) demonstrates there is sufficient spare parking in surrounding streets to cater the existing deficit of onsite parking, and that the availability of on-street parking will only improve as a result of the increase in onsite parking proposed. 17. According to Mr Fonken, the improvement comes from relocating 15 cars from on-street parking to the 15 additional spaces proposed on site, being the nett additional parking proposed once the higher range of increase in demand is factored. 18. While the number of parking spaces proposed is an improvement on the existing situation, Mr Rudd believes that new development should conform to the requirement at Part 9.3 Section 2.1(d) of the RDCP for all parking to be provided on site. As proposed, the development fails to provide somewhere between 1 and 5 parking spaces for retail staff. 19. As the demand for parking is somewhat determined by the opinion of the economic experts, it is also necessary to consider the evidence summarised briefly at [112]. 20. Mr Hack's evidence is informed by data published by the Property Council of Australia on neighbourhood centres with a floor area of no more than 10,000m2 of gross lettable area (GLA), known as the Property Council of Australia's Shopping Centres Directory NSW 2023 (Centres Directory). 21. The Centres Directory lists 143 centres that provide on-site car parking at an average rate of 22.3m2 per car space, expressed by Mr Hack as an industry benchmark of $11,241/m2 average for 85 centres between 6,000-10,000m2 GLA. The upshot of this is that Mr Hack considers parking at any lesser rate would be below a benchmark level that may result in on-street parking. 22. Mr Hack also asserts that shoppers may be reluctant to walk to a supermarket if it means carrying goods home, and so may prefer to drive. Accordingly, shoppers who walk rather than drive spend less than those who drive. 23. Mr Layshon considers the relevance of the Centre Directory to be limited given the very significant difference in scale between the Neighbourhood centres the subject of the Centres Directory, and the proposed development. 24. Instead, Mr Layshon believes the proposed Woolworths will remain a small-scale supermarket offering residents a limited "convenience type offer". 25. Given the survey shows that 28% of existing shoppers walk to the existing site, Mr Layshon also believes that if the same proportion of shoppers is maintained with the expected growth in visitors to the site, the number of customers arriving by car would be substantially less than the range of 18.7%-22.5% stated at [112]. 26. By contrast, Mr Hack's opinion is that the percentage of existing shoppers walking to the site is immaterial when calculating the percentage increase in number of shoppers, because the new development will attract more trips from residents in the catchment who choose to forego trips to larger centres in favour of 'the new Metro'. 27. I prefer My Layshon's evidence for three reasons: 1. Firstly, because I accept Mr Layshon's evidence that the proposal would continue to offer a limited selection of the kind offered by a 'Metro' Woolworths. As such it is likely to have a dampening effect on what Mr Hack otherwise considers to be an alternative to larger centres. 2. Secondly, I agree that the percentage of those who visit the existing site on foot is a measure of the behaviour of shoppers within the catchment of the site. It follows that if a new development attracts a greater number of shoppers, that this will include attracting more who are within a walkable distance of the site. 3. Thirdly, Mr Layshon's oral evidence is that such small-scale supermarkets also serve the local community for whom the site is not a destination in itself, but likely a stop on the way home for ingredients constituting that night's meal and other groceries. 1. As I prefer Mr Layshon's evidence, I also more readily accept the increase of 18.7%-22.5% in visitation is likely, and the consequence that has for the parking demand considered by the traffic experts. 2. The consequence in respect of parking for retail customers is that the development proposes an excess or surplus of 3 customer parking spaces. 3. However, it is agreed the retail staff parking constitutes a deficit of 5 spaces, which Mr Fonken regards as an improvement on the existing deficit of 8 spaces that ultimately benefits the surrounding road network. 4. Gladesville WW argues that where parking demand for retail uses varies according to the size and forecast demand for retail uses proposed on the site, the number of car parking spaces required for retail staff is fixed. 5. The experts agree that 9 staff are expected to be employed in the supermarket; 7 of these in the supermarket and 2 in the liquor store. A driver rate of 86% is accepted, arriving at a requirement for 8 spaces. 6. Three spaces are proposed for retail staff parking on the ground floor. 7. A condition of consent is proposed by Gladesville WW to require the preparation of a Travel Plan consistent with the Travel Plan Guidelines: Maximising the use of sustainable modes of travel, published by the City of Ryde Council (Travel Plan Guidelines) (Exhibit T). 8. The Council's written submissions caution that a condition requiring the preparation of a Travel Plan, the contents of which are as yet unknown, cannot satisfy the onus that rests on an applicant to proffer, in the development application for the development, an alternative solution because a condition requiring the preparation of a Travel Plan is not, of itself, an actual Travel Plan. 9. While it is unarguable that a plan for a Travel Plan is not itself a Travel Plan, the highly practical focus of the Travel Plan Guidelines, including a range of Actions to Consider for Travel Plans at Appendix 1 of the Travel Plan Guidelines convinces me that a Travel Plan is likely to play a role in encouraging staff to travel to and from the site by a means other than private vehicle. Among those Actions in Appendix 1 is to provide end of journey facilities of a kind proposed in the development. As such, a Travel Plan is not a mere speculation on future compliance, but for which aspects are already evident in the proposal. 10. On the basis of the spare capacity evident on surrounding streets, and the evidence of some aspects of Travel Plan included in the proposal, and the minor extent in shortfall that is limited to staff parking on the site, I find the provision for parking for the development acceptable. Truck deliveries and the loading dock 1. The current arrangement for trucks entering the site is described by the traffic experts at par 2.1.17 as undesirable. Service vehicles reverse into the open driveway at the southern side of the site from a stationary position on Pittwater Road. During such a manoeuvre, the existing car park to the rear of the site is necessarily closed. 2. By contrast, the proposal allows service vehicles to enter and exit the site in a forward direction and does not interfere with access to or from the carpark during manoeuvres. This is described by the experts as "far superior" to the existing arrangement, including for its impact on the improved operation of the existing road network around the site. 3. As Pittwater Road is a classified road, s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 precludes the grant of development consent unless the consent authority, or the Court on appeal, is satisfied of certain matters. 4. Not unrelatedly, s 2.122 of the Transport and Infrastructure SEPP requires written notice be given to Transport for NSW (TfNSW), and for any response to be considered. Additionally, the consent authority, or Court on appeal, must take into consideration the accessibility of the site in respect of the efficiency of movement of people to and from the site, the extent of multi purpose trips, the potential to minimise the need for travel by car, and any potential traffic safety, road congestion or parking implications of the proposal. 5. While the Court was advised that TfNSW has granted its concurrence to the proposal, such advice is not in evidence. Potential for confusion in use of carpark 1. As explained earlier, the proposal separates car parking according to the proposed uses. Access to parking for visitors to the childcare and medical centre component is proposed from Thompson Street. Access for service vehicles and staff and customers visiting the retail component is proposed via Pittwater Road. 2. While the Council initially contended the arrangement has the potential for confusion and misuse, the traffic experts agree any such issues can be avoided by the use of signage, required by the imposition of a condition to that effect. 3. According to Ms Laidlaw, such signage will only heighten the commercial appearance of the development in a residential zone. 4. Notwithstanding such signage, the Council also expresses concern that a driver seeking to use the parking accessed from Thompson Street would be stopped by the boom gate at the bottom of the driveway ramp and be forced to reverse up the ramp. 5. To resolve the issue, the experts agree that an intercom at the boom gate could be used to request temporary access to turn around in the basement car park and exit in a forward direction. Provision is made at Condition 180 of the without prejudice conditions of consent to this effect. 6. I accept that the combination of visual cues provided by the proposed signage and boom gate are likely to minimise the potential for confusion by drivers accessing the site, and the provision of an intercom likely to serve the purpose of mitigating misuse or misunderstanding by drivers who miss those important visual cues. Sightline for pedestrian safety 1. In addition to the matters raised above, the traffic experts agree, at par 6.1.5 of the supplementary joint report (Exhibit 10), that the current driveway exit lane to Pittwater Road does not comply with figure 3.3 of the Australian standard AS2890.1:2004. 2. A sightline described as a Pedestrian Sightline requirement is shown on a Figure at par 6.1.5. It is not dimensioned, but is agreed to require a dimension of 2m in the north-south direction. 3. The traffic experts consider the matter capable of resolution by a condition of consent, requiring the relocation of the substation to permit the sightline. 4. Rather than rely upon a condition of consent, Gladesville WW depict the relocation in the architectural plans at [18], with consequences that are considered by the planning and urban design experts at [172]-[176]. 5. Having considered the evidence in respect of traffic and parking, I find provision for parking adequately address, and the likely traffic impacts acceptable. Acoustic impacts are acceptable 1. While the Council initially contended that the child care centre would have poor amenity because of its reliance on mechanical, rather than natural, ventilation, the acoustic experts retained to consider the proposal agree in the joint report prepared by them (Exhibit 5) that such an outcome is commonplace and so acceptable. 2. The rationale adopted by the experts derives from Section 5.1 of the Guideline for Child Care Centre Acoustic Assessment (version 3), published by the Association of Australasian Acoustical Consultants (Exhibit W), that requires child care centres to be capable of achieving certain noise levels with windows closed. 3. The experts also agree that the mechanical ventilation system proposed for the development is capable of complying with the relevant parts of the Noise Policy for Industry (NPfI) when sound levels expected to be generated by the proposal are assessed together with road noise impacts. 4. Given the extent of agreement between the experts in Exhibit 5, they were not initially required to give oral evidence. However, for reasons briefly stated at [17], the experts were called on the last day of the hearing to explain their position on the revised landscape proposed in the outdoor play area at Level 2. 5. Ms Emma Hansma, acoustic expert for Gladesville WW, explained that the Noise Impact Assessment undertaken by her, and identified as a document that informed the joint conference of the acoustic experts, undertook modelling of noise generated by a child in the outdoor play area at a height of RL 57.3 AHD. This is a height of one metre above the level of the outdoor play area shown at the time. 6. The amended Noise Impact Assessment dated 22 November 2024 (Noise Assessment) describes the relevant scenario modelled assumes 60 children playing outdoors. According to Ms Hansma, this modelling is conservative because it assumes a great number of children than are proposed. Furthermore, it assumes all 60 children are playing outside at the same time. However, the application seeks consent for 53 children, with a breakdown of that number in the Plan of Management for the proposed Child Care (Exhibit K) as follows: * 0-2 years: 8 children * 2-3 years: 15 children * 3-6 years: 30 children 1. Subsequent to the modelling described above, Ms Hansma has undertaken modelling based on new levels in the outdoor play area shown on the amended architectural plans and landscape plans at [18], and also shown on a section detail at Exhibit X. 2. According to Ms Hansma, results indicate appropriate noise levels may be exceeded as a result of changes to the new outdoor play space at Level 2 when measured at the sensitive receiver in an apartment in the adjoining Harris Farm development. The exceedance is described as 2 dBA. 3. While Ms Hansma's oral evidence is that the conservative approach taken to modelling means the exceedance may not occur, the issue may be resolved by imposing a condition on the childcare to limit hours of outdoor play by children to two hours in the morning, and two hours in the afternoon. 4. To overcome a concern expressed by the Council that such an arrangement might trigger a less onerous noise criteria, Ms Hansma also suggests the requirement for annual verification of the noise levels generated by the childcare be explicit that the criteria for verification be background noise +5 dBA. 5. Acoustic expert for the Council, Mr Gordon, notes such an arrangement would expose the apartment in the Harris Farm development to a greater level of noise, albeit for shorter durations in the day. However, the terms of a condition as proposed by Mr Hansma would result in an outcome Mr Gordon agrees would be acceptable. 6. Having embarked on a more complete consideration of the traffic and parking impacts, and acoustic impacts, found to be acceptable, I also conclude that the seen and unseen effects of the proposed density supports the environmental planning grounds set out in the FSR request. 7. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the RLEP. As I find there to be no such matters of significance, the Court, exercising its power under s 39(6) of the LEC Act deems the Secretary's concurrence and so I find there are no grounds on which the Court should not uphold the written request. Whether the proposal is of poor design 1. The Council contends that there are aspects of the proposal that are poor design because Gladesville WW seeks to overdevelop the site. 2. The particulars that remain unresolved at the hearing consist of two matters considered by the town planning and urban design experts in a joint expert report (Exhibit 6), and a supplementary joint report (Exhibit 9). 3. Those remaining issues include: 1. The streetscape presentation and activation. 2. Changes made to the Level 2 slab over Level 1 parking. Streetscape presentation and activation 1. While the experts initially agreed in Exhibit 6 that the streetscape presentation was acceptable, subject to subsequent amendments to the northern lobby servicing the supermarket, an amendment in the architectural plans at [18] includes the relocation of the substation fronting Pittwater Road to provide a pedestrian sightline. 2. In order to provide the sightline for traffic exiting the carpark onto Pittwater Road, the substation is moved north by 1.2m. According to Ms Laidlaw and Mr Olsson, this reduces the active street front from around 9m to around 8m. 3. As it is put by Ms Laidlaw, such a reduction "crosses the line". 4. The Council submits that a consequence of the carpark separation is a necessity for two lift shafts, one of which limits the extent of activation available to the street. 5. While the Court was not taken a provision of the RDCP or RLEP requiring a percentage or minimum extent of active street frontage, I don't accept the position put by Council or its experts for two reasons: 1. Firstly, the site does not appear to be mapped in any environmental planning instrument, control plan or policy that would provide guidance to a proponent or the Court on a requirement for the degree or nature of activation. 2. Secondly, I consider a glazed supermarket lobby to answer the description of an active area, particularly one that intersects with a lift to the car park that is likely to be a hub of movement, just inside the glazed doors to the Pittwater Road footpath. So understood, the extent of glazed shopfront likely to activate Pittwater Road is, by my calculation, more than 12m in length across a frontage that is dimensioned on DA0203 at 32.7m which is between 30-40% of the frontage. 1. Absent a figure otherwise required, I consider the frontage sufficiently activated. Changes made to the Level 2 slab over Level 1 parking 1. The Level 2 slab performs the function of supporting the outdoor play area for the proposed childcare atop it, and partly covering the Level 1 car park below it. 2. The reduced level (RL) of the Level 2 slab is important in the scheme of things as its height above ground determines the height of an acoustic screen that surround the outdoor play area, and which is agreed to exceed the height standard. 3. However, the precise RL also sets the clearance below it to the carpark. A clearance of 2320mm above the car park slab is proposed. Mr Olsson, correctly in my view, identifies the slab to lack obvious means of support, and little in the way of tolerance for structural depth beyond a slab that appears notionally 200mm thick. 4. The Council, understandably, relies on stormwater plans prepared by SGC (Exhibit C), including certain details that depict pipework and clearances to the underside of the slab. The upshot of which is tolerance of only 20mm to the minimum height for a carpark permitted by the relevant Australian standard. 5. Mr Dickson believes the level of detail sought is beyond that usually provided with a development application, however expanded at some length on how structural support, services and vehicle clearance can be assured. 6. Mr Dickson's explication extended to invocations of famed Italian engineer Pier Luigi Nervi who is known, in crude terms, for his radial structural solutions such as those seen on the site commonly known as the 'MLC Centre', or 25 Martin Place in Sydney. Such a solution is likely an answer to the support for the Level 2 slab over the carpark ramp that rises from ground floor in a sweeping curve. 7. I accept Mr Dickson's explanation that, with the addition of a column and stormwater services that are cast-in to a band beam, draining to a large void suited to the function of a services riser, the required clearances are achievable, and that a radial cantilever structural solution over the car park ramp can be achieved through clever engineering. In preferring Mr Dickson's explanation of the possible structural solution I am persuaded that further design development and documentation will not and should not result in a further increase in the RL of Level 2 slab or the built elements that rely on the Level 2 slab for their height. Childcare guidelines 1. While there are no contentions raised by the Council in respect of compliance by the childcare component of the proposed development with the Childcare Centre Planning Guidelines 2021 (CC Guidelines) (Exhibit 2, Tab 11), Council's experts believe three individual trees in planters shown in the outdoor play area should be excluded from the calculation of unencumbered outdoor area as this is area that cannot be used for outdoor play. 2. However, these are not the terms of the Guidelines. Instead, while areas of dense planting are to be excluded (p 32), Figure 9 would appear to suggest individual trees can be included by virtue of the shading in the diagram (p 33) - a point made by Mr Wood in setting out his opinion. 3. I accept Mr Wood's evidence as the only evidence supported by the text of the Guideline itself. 4. An aspect of poor design contended by the Council relates to the refuge area shown on the Level 2 architectural plan. While not a requirement of the CC Guidelines or of the Education and Care Services National Regulations (2011) (National Regulations), Part 3.2, control (i) of the RDCP requires a safe refuge area calculated at rate of 0.25m2 per person, including staff and children, where a child care facility is proposed above the ground floor level. The proposal includes a refuge area of 9.5m2. The parties agree that, should the Court be so minded, a refuge with an area of 15.25m2 can be provided by condition of consent. However, it would appear to impose a condition requiring such an increase in the size of the refuge can only come at the expense of the size of the outdoor play area that is shown at 373.1m2. 5. Given the proposal seeks to accommodate 53 children, and the relevant provision at cl 108(2) of the National Regulations requires an area of 7m for each child, it would seem that compliance with the relevant control in the RDCP would result in non-compliance with the National Regulation and so, according to s 3.22(1)(b) of the Transport and Infrastructure SEPP, would require concurrence from the relevant Regulatory Authority. 6. As I do not understand Part 3.2 of the RDCP to prevail over the requirements of the Transport and Infrastructure SEPP, I decline to adopt the proposed condition to increase the size of the refuge, noting the proximity of the refuge to the fire isolated stair that provides direct egress to the Pittwater Road street frontage. 7. The CC Guidelines are a matter for the consent authority, or the Court to consider, to the extent relevant (s 3.23). While the Council's assessment report and Statement of Environmental Effects prepared by Think Planners both consider the CC Guidelines in some detail, these documents were not tendered in evidence. 8. I have considered those matters in the CC Guidelines that are relevant to the proposal and find as follows: 1. For reasons set out earlier in this decision, I consider the proposal achieves those aspects of C1 that are relevant to development adjacent to low density residential uses, and in commercial zones, and with the advice on site selection at C2, C3 and C4. 2. For those reasons stated at [49] and [50], there is no aspect of character that is contrary to those matters at C5 or C6 and no aspect of building design that contradicts C11. By virtue of the clear delineation between parking areas, and lifts servicing the child care facility, it would appear the differentiation, legibility and secure entry sought by C7 and C15 is also achieved. 3. The integration of landscape planting and screening to the Level 2 outdoor play area conforms to C17, and other privacy protections sought by C19 and C20 are likewise achieved when sightlines from the Harris Farm development are considered. 4. On the basis of the agreement between the Acoustic experts at [166], I note the objectives at C22 and C23 are achieved. 5. On the basis of the Air Quality Assessment prepared by Benbow Environmental dated May 2024 (Exhibit M), I note the objectives at C26 and C27 are achieved. 6. For the reasons I have already set out, parking rates for the child care facility have not been adopted from the RDCP as is advised at C30. However, the TPIA cited at [103] assesses the availability of on-street parking and the operation of the surrounding road network which, as stated at [155], I conclude demonstrates an acceptable outcome. While the separation of parking on Basement 2 and Level 1 is a matter of contention between the parties, it would appear to accord with the objective at C30 to minimise conflicts between pedestrians and vehicles by isolating retail parking movements from those visiting the child care facility, and achieve alternative vehicular access for the child care facility from the classified road, being the focus of C33. 1. There is no aspect of the non-discretionary standards at s 3.26 of the Transport and Infrastructure SEPP that I understand to be other than complied with. Public submissions 1. In accordance with its usual practice, the proceedings commenced with an onsite view at which the Court, in the company of the legal representatives, experts and others, heard oral submissions from four residents of the immediate vicinity that reflect concerns expressed in written submissions contained in a bundle of documents filed by the Council (Exhibit 2). Traffic and parking 1. Residents in Thompson Street are particularly concerned at the proposal for driveway access in No 57 Thompson Street that will exacerbate congestion, produce noise, and nuisance caused by headlight glare to properties opposite the driveway. 2. For reasons already set out in this decision, I find the traffic and parking impacts acceptable. 3. In fact, far from the impact on properties to the rear being adverse, for reasons set out at [43]-[45], I consider the interface between the residential and commercial zones to be an improvement on the current barren interface between the rear of the property and residential properties to the west. The kind of impacts that can commonly arise at an interface between residential and commercial uses are appropriately addressed, in my view, through setbacks, deep soil and landscaping that will serve to screen in such a way as to provide privacy and amenity. 4. That said, residents at the property opposite the driveway in Thompson Street, most particularly at 66 Thompson Street, are likely to experience headlight glare from vehicles exiting the Basement 2 car park. The issue is not helped by large openings fronting Thompson Street in the new development being constructed at 66 Thompson Street. Such openings are likely to be protected at some point, by landscape screening or other means, for personal privacy if not for other such amenity impacts such as that identified by the residents. Unwanted noise 1. Residents point to noise generated by commercial development on Pittwater Road today, and predict a greater impact from the proposal. Noise from plant and equipment, deliveries, shopping trolleys and the child care centre are all said to diminish the amenity of residents who will bear the brunt of such noise, and some are concerned this will also have the effect of devaluing their properties. 2. A detailed noise assessment prepared by Benbow Environmental dated November 2024 (Exhibit R, Tab 7) identified relevant receivers nearby and modelled predictions based on certain noise criteria. While construction noise will exceed noise criteria, operational noise emissions, car park activities and mechanical plant will not when noise controls set out at Section 6.4 are adopted, which is a requirement imposed by those agreed conditions of consent. 3. While a number of residents express concern that the development has potential to result in the loss of value to their property, no evidence in support of this concern has been provided. Absent evidence to the contrary, the Court notes that is an axiom of property that proximity to support, services and infrastructure tend to enhance, and not diminish, value in residential property. Other matters of jurisdictional relevance 1. The site is not identified on the relevant Acid Sulfate Soils Map at cl 6.1(2) of the RLEP. 2. A Geotechnical Investigation Report prepared by GCA dated 1 May 2024 (Geotechnical Report) (Exhibit N) records the results of four boreholes drilled on site to a maximum depth of 14.9m, on the basis of which an excavation assessment is set out and monitoring of groundwater and vibration during construction activities is recommended. A statement at p 25 of the Geotechnical Report appears at odds with the landscape design, and my findings at [45] insofar as the Geotechnical Report encourages the planting of trees be limited around the development area. I state here that I do not understand this statement in the Geotechnical Report to displace or serve to amend the landscape design set out in the Landscape Plans, and reiterate the reliance the Court places on the species and extent of plant selections to ensure amenity at the interface between the site and residential properties to the west. I have considered those matters required to be considered at cl 6.2(3) of the RLEP and, on the basis of the assessment and recommendations contained in the Geotechnical Report, the drainage strategy set out in the Stormwater Concept Design prepared by SGC (Exhibit C) and the amenity afforded to adjoining properties by the landscape design depicted in the Landscape Plans (Exhibit R, Tab 4), I conclude the earthworks proposed are acceptable. 3. On the basis of the same documents, I am also satisfied that the stormwater management is sufficient to be satisfied that the proposal is designed to maximise water permeable surfaces, on site detention of stormwater and so will avoid significant adverse impacts of stormwater runoff from the site, in accordance with cl 6.4(3) of the RLEP. 4. No further provisions in the RLEP are identified as relevant by the Council and no further provisions of the RLEP are contained in the Bundle of documents filed with the Court by Council. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. Section 2.48 of the Transport and Infrastructure SEPP applies to development in close proximity to electrical infrastructure, and requires written notice to be provided to the relevant electricity provider. In its submissions filed 21 January 2025, Gladesville WW provided the written response from Ausgrid, confirming its consent and general terms of approval. 2. Section 2.119 stipulates that the consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that vehicular access to the land is provided by a road other than the classified road and the safety, efficiency and ongoing operation of the classified road will not be adversely affected. 3. On the basis of the expert's agreement at [140]-[141], I am satisfied that the vehicular access to the site from Pittwater Road is 'far superior' to the arrangement evident on the site today. I also note the terms of TfNSW concurrence, dated 14 September 2022 and attached to submissions filed 21 January 2025 that verify the conditions denoted with the 'TfNSW' designation at Conditions 1-3 are those conditions proposed by TfNSW in the written advice provided by TfNSW. As such, I am satisfied that it is not impractical or unsafe for vehicular access to be provided to Pittwater Road. 4. On the basis of the Traffic Distribution shown at Figure 4 of the Traffic and Parking Impact Assessment, and the proposed without prejudice conditions of consent restricting vehicles exiting from the site onto Pittwater Road to left turns only, and for signage to be provided at the driveway entry from Pittwater Road and driveway entry from Thompson Street, respectively, advising how many car spaces are available and whether the car park is full, I am satisfied that the safety, efficiency and ongoing operation of Pittwater Road will not be adversely affected by the design of the vehicular access to Pittwater Road, or the nature, volume or frequency of vehicles using Pittwater Road to access the site (subs 2.119(2)(b)(i) and (iii)). 5. On the basis of the Discussion of Results at Section 3.6 of the Air Quality Assessment cited at [192(5)], I am satisfied that the development is appropriately located and designed, and includes those measures recommended at Section 3.7 such as vegetation screening to the perimeter of the outdoor play area so that the vehicle emissions from Pittwater Road are ameliorated (s 2.119(2)(c)). State Environmental Planning Policy (Resilience and Hazards) 2021 1. The Court must not consent to the carrying out of development on land unless it has considered whether the land is contaminated (s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021). 2. A Preliminary (Environmental) Site Investigation dated October 2021, prepared by EBG Environmental Science (Exhibit D), and a Detailed Site Investigation (DSI) prepared by GCA dated 23 May 2022 (Exhibit E) supports the proposal. I note the DSI concludes, and so I am satisfied, that the site is suitable for the proposed development, subject to the implementation of recommendations that are to be adopted, by terms at Condition 48 of those without prejudice conditions that are not contested. Conclusion 1. For the reasons set out above, I have determined that the development the subject of the development application is deserving of the grant of consent, pursuant to s 4.16 of the EPA Act, subject to conditions of consent. 2. I have considered the competing conditions of consent filed by the parties and adopt the Conditions proposed by Gladesville WW, but for the proposed amendment to the refuge at Level 2 for the reasons set out at [190]. Orders 1. The Court orders that: 1. The Applicant, Gladesville WW Pty Ltd, is to pay the Council's costs thrown away as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development consent is granted to Development Application LDA2022/0023 for the demolition of existing structures and construction of a mixed-use development that comprises a part 2 and part 3 storey mixed use development including medical centre, child care centre, supermarket, liquor store, associated parking and lot consolidation at Lot 6 in Deposited Plan 598121 and Lot 19 in Deposited Plan 10402 otherwise described as 130 Pittwater Road & 57 Thompson Street, Gladesville, subject to conditions of consent at Annexure A. 4. All Exhibits are returned, except for Exhibits B, R, X and 11. 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: 28 January 2025