Land and Environment Court New South Wales Medium Neutral Citation: FLDC Architects v City of Canada Bay Council [2019] NSWLEC 1188 Hearing dates: 14-15 March 2019 Date of orders: 26 April 2019 Decision date: 26 April 2019 Jurisdiction: Class 1 Before: Walsh C Decision: The orders of the Court are: (1) The appeal is dismissed. (2) Development consent to 2016/0516 for a child care centre at 41 Brays Road, Concord is refused. (3) The exhibits are returned except Exhibits 2, A and B. Catchwords: DEVELOPMENT APPLICATION: child care facility – visual impact – overdevelopment Legislation Cited: Canada Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 Texts Cited: Canada Bay Development Control Plan 2017 Child Care Planning Guideline Category: Principal judgment Parties: FLDC Architects (Applicant) City of Canada Bay Council (Respondent) Representation: Solicitors: M Driscoll, BCP Lawyers and Consultants (Applicant) S Kondilios, Hall and Wilcox (Respondent) File Number(s): 2018/99472 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the refusal by Canada Bay Council ('Council') of Development Application 2016/0516 for a child care centre at 41 Brays Road, Concord ('site'). The site and locality 1. I generally rely on Council's Amended Statement of Facts and Contentions (Ex 4) for the particulars that follow here. The site is located on the north-western corner of Brays Road and Drake Street, Concord. It is legally described as Lot 1, Sec. 6, DP 5578. The site is quite rectangular in shape and has a frontage to Brays Road of 18.9m and a frontage to Drake Street of 45.72m with a total site area of 864.1m2. The site falls from the Brays Road frontage down to the rear boundary some 2.2 metres. The site contains minimal vegetation. 2. Existing on the site is a single storey brick and tile detached dwelling house with a metal carport to the rear with a vehicular crossing off Drake Street. A separate brick and metal roof secondary dwelling is attached to the carport behind the existing dwelling. The secondary dwelling addresses the Drake Street frontage. Other structures are also located in the rear yard area. 3. There is some variety of development in the locality, which is a matter of evidence and is considered below. The Proposal 1. The proposal involves demolition of existing structures and construction of a part one/part two storey child care centre for 48 children. Basement parking is proposed for twelve vehicles. According to Ex 4, the 48 child care places would accommodate: 12 x 0 – 2 year olds, 18 x 2 – 3 year olds, and 18 x 3 – 6 year olds. The centre would employ nine child care staff, plus the manager and a cook (total of eleven staff), and would operate from 7.00am to 6.00pm Mondays to Fridays. Overview statutory provisions 1. The site and much of its environs falls within the R2 Low Density Residential zone under Canada Bay Local Environmental Plan 2013 ('LEP'). But very proximate to the east is a local shopping centre zoned B1 Neighbourhood Centre. The objectives of the R2 Low Density Residential zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. Centre-based child care facilities, as defined below (LEP Dictionary), are permitted with consent: centre-based child care facility means: (a) a building or place used for the education and care of children that provides any one or more of the following: (i) long day care, (ii) occasional child care, (iii) out-of-school-hours care (including vacation care), (iv) preschool care, or (b) an approved family day care venue (within the meaning of the Children (Education and Care Services) National Law (NSW)) … 1. It is agreed that the proposal complies with the height and floor space ratio (FSR) development standards applicable under the LEP. 2. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP) commenced on 15 December 2017. According to Ex 4, p32, the DA was lodged on 2 December 2016. In these circumstances (DA made before the SEPP's commencement but not determined), the SEPP's savings and transitional provisions provide that before determining the subject development application: …the consent authority must take into consideration the regulatory requirements and the National Quality Framework Assessment Checklist set out in Part 4 of the Child Care Planning Guideline, in relation to the proposed development. 1. Canada Bay Development Control Plan 2017 (DCP) applies to the site. Relevant DCP provisions are also considered below. Issues 1. In response to Council's contentions, the applicant sought, and was granted leave by the Court to amend the proposal. With the amendments to the proposal, and agreed (without prejudice) conditions, two distinct considerations remained in contention as at the time of the hearing, which I summarise as follows: * Visual impact, or appearance of the development in the local street setting * Child care facilities - internal and external physical requirements. 1. In addition, the applicant had concerns in regard to the Council's without prejudice conditions. In particular, these related to Council seeking a deferred commencement consent. Conditional requirements relating to certain engineering and BCA aspects were to be resolved prior to the consent becoming operational. The applicant opposed these conditions. Given the determination, it is not useful for me to make conclusions in regard to these matters. Suffice to say, each of these issues seemed wholly resolvable, and did not contribute to the final decision. Visual appearance of the development in the street setting 1. In the broad, the Council's position acknowledged that the existing visual setting provided an eclectic mix, but that nonetheless this current mix fitted together in a visual sense. The concern was that the proposal, as a consequence of its physical form and siting, and suggested landscape deficiencies, and located as it is on a prominent corner; would be "antipathetic" to that setting. 2. Mr Kondilios (for Council) posited a line of reasoning for this suggested circumstance. The suggestion was that the intensity of use, in essence the ambitions to accommodate the 48 children, required certain responses which themselves created inappropriate consequences. The main case in point seemed to be requirements for underground parking. The parking contention had been satisfied (with amended plans for which leave was granted). But, it was the submission of Mr Kondilios that the fact of the basement boundary setbacks required to meet parking requirements led to flow on problems (in particular insufficient deep soil areas with landscaping consequences). 3. The evidence focused on two aspects of the "visual appearance" topic. There was the broader question of the overall visual character of the proposal and its relationship to the existing streetscape. For me this was the principal concern. There was also considerable attention given to a relatively narrow issue which was concerned with an area of the site's western boundary fencing (which required acoustic treatment). I will consider these aspects in turn after introducing some agreed facts about the local setting. Introduction to existing visual setting 1. There is a considerable variety of built form in the locality, including within the R2 Low Density Residential zoned land. In this R2 area we see principally one and two storey residences, some of generally original presentation, others with quite significant renovations. The Court was advised of a number of dual occupancy developments, and also observed a number of non-residential uses including two churches. 2. As might be expected, the B1 Local Centre zoned area to the east of the site, on both sides of Brays Road, generally comprised commercial and/or mixed use development. This local centre presents as visually different from the R2 zone, including reduced setbacks to the street and some building to the boundary. For example, there is a prominent, relatively new, three level mixed use development built to the boundary at the south-east corner of Brays Road and Frederick Street which is only around 50m from the subject site. Further particulars on existing form come forward in the consideration below. Evidence – streetscape and proposal's visual appearance 1. The experts presenting evidence were: C Blyth (planning expert for the applicant), A Morton (landscape expert for the applicant) and P Giaprakis (planning expert for Council). 2. Among other things, Mr Giaprakis was concerned about the setbacks of the building and its visual presentation (Ex 2, p11): "The proposed primary building alignment to Brays Road sits forward of the adjoining primary building alignment. This combined with the lack of adequate articulation, the length and proportions of the façade and the commercial style continuous high window openings do not reference detail or proportions typical of what would be considered more appropriate traditional residential design. There is other structure within the front setback that is also not appropriate on this residential site. This includes a fire stair down to the basement level which sits forward of the front building alignment and has a zero side setback." 1. Mr Giaprakis saw the building as incompatible as he saw the immediate area around the site as "(retaining) a traditional residential character" (ibid): "Surrounding development includes mainly single dwelling development with landscaped front and rear yards and hipped and gabled roof forms within a low density residential zone. The proposal is contrary to this neighbourhood character as a result of siting, architectural detail, building articulation, building footprint and to the extent that the excessive basement excavation effectively removes any future scope to establish a suitable landscaping character that would be expected within in a low density residential area. The limited and relatively narrow perimeter deep soil zones only allow for planting to be organised in a continuous line around the site's boundaries. (Mr Giaprakis) is of the opinion that this arrangement is likely to present as an uninteresting dense wall of vegetation around the site as opposed to a more natural landscape character. These issues become more apparent given that the site is located on a prominent corner location." 1. Mr Blyth proffered a different view (Ex 2, p13): "… There is no consistency in roof form or materials within the neighbourhood other than a use of roof tiles. Within the visual catchment of the site one finds flat roofs, hipped roofs, gable roofs, mansard roofs, a step pitched church roof including metal roofing, a variety of glazed and unglazed concrete and terra cotta tiles. Use of flat roofs in contemporary residential construction in Canada Bay Council is very common." And at Ex 2, p8: "... the abutting the house on the opposite corner of Brays Road and Drake Avenue but one (37 Brays Road) is a two storey modern design dual occupancy development featuring double vehicle access, large amounts of glazing, a flat roof and rendered masonry. The church located opposite on the corner of Anderson Road features painted brick, has a modern entrance vestibule and what appears as recent two storey addition. Immediately opposite the church on the other corner of Brays Road and Anderson Road is a large two storey dual occupancy development with double garage parking from each street." 1. Mr Blyth also linked the proposal to the three storey mixed use development some 50m away from the site on the corner of Brays Road and Frederick Street within the local shopping centre. 2. Mr Bray opined that: "… a child care centre is not a house or a residential building nor should it or could it be by its very nature and function. There are however elements of the proposal such as glazing, skillion roofs and other elements that are common to contemporary residential construction and examples of this occur close to the site. The elevation to Brays Road is varied in composition, scale and presentation to produce an articulated presentation with a landscaped setback. Notably the building scale is low having only a part upper floor and a footprint less than most contemporary dwelling houses and dual occupancies in the locality." 1. Mr Driscoll (for the applicant) highlighted the "eclectic" built form characteristic of this locality, as characterised above. He questioned Mr Giaprakis on the visual compatibility aspects of a number of properties on Brays Road. In the hearing this was done through reference to a set of A3 photographs (Exhibit G, Plates 1-9). 2. In particular, Mr Driscoll made the suggestion to Mr Giaprakis that over time the older style dwellings in the immediate area would be redeveloped. The example at 37 Brays Road was cited (represented photographically at Plate 4 in Exhibit G and showing a modern style dual occupancy development). Mr Giaprakis agreed that redevelopment would occur but saw the development at 37 Brays Road as, itself, adopting some "cues" which provided for greater character compatibility than the subject proposal. He referenced 37 Brays Road's address to the street, building setback, verandahs, and the properties of the doors and windows. Mr Giaprakis also emphasised the subject site's corner location as a point of difference to 37 Brays Road. 3. Among other buildings, Mr Driscoll referenced the two churches in the immediate environs (47 and 54-58 Brays Road according to Ex G), suggesting obvious visual character disparities. Mr Giaprakis saw these buildings as adding to the street's character, including in regard to pitched roof, modulated facades, proportion of openings and landscaped grounds. 4. There was some discussion around the point that a Complying Development Certificate (CDC) might be issued for a two storey dwelling on the site but it was agreed by the experts that there was no potential for a CDC to be issued for basement parking of this configuration. 5. It was agreed that there was a "smattering" of canopy trees rather than any great expanse of them in the local streetscape. 6. The evidence of Mr Morton focused on the landscape proposals and in particular the area available for landscaping. The agreed particulars, as far as the key street frontage issues are concerned, are generally as follows. The basement parking area, which can be essentially seen as defining the deep soil zone, is setback 1.5m from the front boundary, and similarly to the eastern or corner side (to Drake Street). There is a rectangular area of deep soil at the (key) north-east corner of the property 2.5m wide in an east-west direction, and un-dimensioned in the north-south direction, but seemingly around 3.5m wide in that direction. 7. Mr Morton, acknowledged the obvious landscaping constraint associated with the basement parking and accepted Mr Kondilios' description of these setback areas as "slithers of land". Mr Morton also agreed that a better landscape outcome would occur if more deep soil space were available. But he saw this scenario as a reality of landscape architectural input into projects (ie something of a struggle to secure enough area for landscaping), and saw the space available with this proposal as able to accommodate the landscape scheme as proposed (Ex B). 8. Mr Morton highlighted the proposed Melaleuca linariifolia at what I have described above as the key north-east corner location, and a Japanese Maple at the western side of the Brays Road frontage where are somewhat larger space is available. Both of these trees are shown as having a mature height of 7m (Ex B). 9. Mr Driscoll made reference to Council's approval of a 100 children child care centre at 173-175 Majors Bay Road (Exhibits H and J) in his cross examination of Mr Giaprakis in particular. My understanding of Mr Driscoll's point was that Council had approved development with similar underground parking side setback arrangements for this development with residential development abutting to the north, east and south. Mr Giaprakis indicated that the landscape arrangements for this proposal were not "my ideal outcome", but suggested a key point of difference as the variation in the front setback and additional deep soil areas there as providing for "a more interesting outcome" when compared to the subject proposal. Western boundary and acoustic wall 1. A contention in regard to acoustic impact to the west had been addressed through modifications to the fencing on the western boundary. The Council's position was that the response to the acoustic issue itself raised visual impact concerns. It was proposed as a 2m high "block work" wall with a 500mm high "perspex" screen above "at a 45o angle". The basement parking was setback 1.2m in this area. The requirement for a footing for the wall, which would be located entirely on the subject property, was noted. The uncertainty was in regard to what space might remain for planting to buffer the potential visual impact of the intended structure. Mr Morton noted that the space available for the proposed planting was "at the margin". 2. I will deal with this western wall now. While noting that the landscaping configuration around the western wall did have loose ends (it was unclear whether the proposed landscaping would be able to be achieved, given the available planting space and the proposed alignment of the western elevation), I did not see this issue as determinative. The proposed landscaping, located on the subject land, could not substantially improve the visual impact of the boundary wall on the enjoyment of the adjoining property (it was clearly impractical to have landscaping on the western side of the wall given design constraints). However, this area of 43 Brays Road did not seem to be of particular sensitivity (much of it adjacent to carparking structures). I would also see it as reasonably possible to provide adequate planting along that edge such that the wall configuration would not be visually offensive when viewed from within the site. Applicable policy 1. There had been some changes to the DCP between the time of the preparation of Council's SOFAC and the hearing dates. The effect of this was that a number of policy references in the ASOFAC (Ex 4) were out of synchronisation with the current DCP. This came forward to an extent in the joint expert report (Ex 2), where there was some attention to the previous DCP (albeit it recognising it as out of date), and less written attention to what I indicate as the actual (applicable) DCP provisions below. However, I see it as reasonable and necessary to reference the actual policy provisions applying today in this assessment. It is "necessary", because under s 4.15(1)(a)(iii) of the EPA Act it is a requirement for me to "take into consideration" the current DCP provisions; and it also seems to me "reasonable" because the oral evidence and submissions went to the substance of the DCP provisions referenced below in any event. 2. The DCP Section entitled Part I – Child Care Centres includes the following provisions "I1 Child Care Centres Objectives To ensure that Child Care Centres: O1. Are compatible with neighbouring land uses; O2. Integrate into existing residential environments and are unobtrusive in terms of size, bulk and height; O3. Are appropriate for the surrounding built form and natural landscape; O4. Will have minimum impact on surrounding land uses; and … I2 Building setbacks Objectives O1. To ensure the height and scale of a child care centre relates to site conditions, complements the prevailing character of the streetscape and minimises any adverse amenity impacts upon the surrounding properties. O2. To ensure the appearance of the development enhances the streetscape. Controls C1. The Child Care Centre should comply with the relevant setback controls as stipulated in the Canada Bay Development Control Plan as follows: * Within a residential zone, setbacks for dwelling houses" 1. In regard to the reference to setback controls immediately above and "setbacks for dwelling houses", the evidence notes the provisions at Section E3.5 of the DCP. The objectives and relevant (selected controls) are provided below. "Objectives O1. To integrate new development with the established setback character of the street. O2. Preserve significant vegetation which contributes to the public domain and allows for street landscape character to be enhanced. O3. Ensure adequate separation between buildings consistent with the established character and rhythm of built elements in the street. O4. To ensure adequate separation between buildings for visual and acoustic privacy. O5. Maximise solar access to achieve amenity for neighbours. Front setbacks Controls C1. The front setback of all residential buildings is to be a minimum of 4.5 metres or no less than the Prevailing Street Setback, whichever is the greater. The "Prevailing Street Setback" is the setback calculated by averaging the setback of five (5) adjoining residential properties on both sides of the development. Where there are fewer than five residential properties or a non-residential use property between a street end or corner and the development site, the "Prevailing Street Setback" is the setback calculated by averaging the setback of the five next residential properties fronting the street (if any) on both sides of the property. Note: In many instances, the front setback of buildings in Canada Bay is 7.5 metres or greater and development in these areas will be required to comply with this prevailing setback. C2. No balconies, entry porches or verandahs are permitted to encroach within the front setback. The only encroachments permitted within the front setback are restricted to eaves and awnings for weather protection but no supporting columns or posts. … Basement setbacks Controls C7. Basement excavation for all development is limited to the area of the building at the ground level. The excavation setback includes the driveway access to the basement. C8. The outer edge of excavation, piling and all subsurface walls including driveway excavation to basement car parking for dwelling houses should not be less than 900mm from any boundary. C9. Where it can be demonstrated the site is so constrained (for example by its width) that it is impossible to provide basements without extending beyond the permitted side and rear setbacks, excavation up to but no closer than 3.0m to a site boundary will be considered." 1. As indicated above, the SEPP requires me to take into consideration the regulatory requirements and the National Quality Framework Assessment Checklist (NQFAC) set out in Part 4 of the Child Care Planning Guideline (CCPG). I have considered these provisions and find none of pertinence to the question before me at this point, with Part 4 more concerned with internal and external child care facilities. Findings - visual appearance of the development in the street setting 1. In final submissions, Mr Driscoll emphasised the need to have regard to the zone objectives and the fact that the development complied with height and floor space controls. I have regard to these factors. He also noted that the proposal was for a child care centre. Such developments should be acknowledged as having their own characteristics as might be compared to a church. Mr Driscoll emphasised Mr Blyth's comments that a child care centre would reasonably be expected to look like a child care centre. 2. However, it seems to me the DCP provisions are suggesting that child care centres be "unobtrusive" and "integrate with the established setback character of the street" (E3.5 of the DCP). This provision is followed up with front setback controls, including in regard to basement parking, which are to generally to be not at odds with that which prevails. These provisions do not mean that a child care centre needs to look like a dwelling house, but they do suggest a requirement for significant design sensitivity to context. 3. The basement parking area, in seeking to provide for car parking in accordance with requirements, is setback only 1.5m from the front boundary, and similarly to Drake Street for a critical length. The associated alignment of hardstand at ground level, as opposed to deep soil and landscape opportunity, is inconsistent with the DCP's requirement and is the most concerning aspect of the proposal. While the building itself is setback further (some 3.82m), its massing towards the street boundary, without sufficient compensatory landscaping, means the proposal would not be unobtrusive and would be unlikely to integrate well with the established setback character of the street. 4. While Mr Driscoll emphasised that the front (southern) alignment of the proposed building was similar to 43 Brays Road, adjacent to the west, the presentation of the development in the street would have no similarities of substance to this existing modest residence. 5. I have considered s 4.15(3A) of the EPA Act, and the need to be flexible in applying the DCP provisions. In doing so I have had regard to the larger child care development at 173-175 Majors Bay Road which was considered in evidence. However I don't see the Majors Bay Road proposal as assisting the applicant overly, as it has a larger area of deep soil area at the street frontage and an improved front setback treatment when compared to the subject proposal. Having regard to s 4.15(3A), I do not see the proposal as providing a reasonable alternative. Instead it presents as having an incapacity to achieve the objects of the DCP, principally as a consequence of the location and area occupied by underground parking hardstand. 6. Overall, I accept the evidence of Mr Giaprakis that there is a particular residential character to the R2 zoned land. His evidence under strong cross-examination was lucid in unpacking the particulars which meant there could be coherent character despite considerable difference in typology and form, and how it was that the subject proposal was at odds with this character. Among other things there is a local spaciousness, deeper setbacks and open front gardens, which the subject proposal does not enjoy at the Brays Road frontage and corner. I am less concerned about building form (including roof) and modulation (although in my view the lack of address to Brays Road including in the window treatment is a significant deficiency), and more concerned about the placement of the building massing (to the extreme south and along the immediate Drake Street return), and the deficiencies in meaningful space to soften this form through more generous street setbacks and landscaping. I find that the proposal is unsatisfactory in visual terms and would have an unreasonable adverse effect in the local Brays Road streetscape. The corner location exacerbates the adverse impact. I find this aspect of the development to be determinative. Child care facilities - internal and external physical requirements 1. I note that Council raised contentions in regard to both internal and external physical requirements, with Part 4 of the CCPG itemising various requirements in regard to each. The core of Council's concern was in what it suggested was an under provision of required unencumbered space with respect to some age groups. Mr Giaprakis referred to certain requirements for storage, and exclusion areas around sinks, doorways and the like, which should be deducted from the indicated unencumbered areas. Mr Kondilios saw this aspect of the proposal as further demonstration that the ambitions for 48 child care spaces exceeded the site's capacities. 2. The applicant's position was that Mr Giaprakis had excluded areas from unencumbered space which the CCPG said it was unnecessary to exclude, and there was sufficient overall area to meet the requirements. An additional plan (Ex N) was provided by the applicant which sought to demonstrate this, and indicated the capacity to achieve compliance. It was also suggested that if compliance was not able to be achieved then the regulator would reduce child care numbers to meet availability. 3. I will note that I found some of the exclusions calculated by Mr Giaprakis to be out of alignment with the CCPG provisions. But other points of dispute were not so readily reconciled. Given my finding that the adverse visual impact of the proposal is determinative, there is no reason that I should make a determination in regard to this competition of arguments among the experts. Conclusion 1. There is a planning intention to have child care centres fit into the streetscape. In my opinion, in the circumstances of this case the placement of the building massing, and the deficiencies in meaningful space to soften this form through more generous street setbacks and landscaping, are at odds with this intention and bring an unreasonable adverse impact The corner location exacerbates the adverse impact. 2. The orders grant leave for the amendment of the application in accordance with the plans at Ex A. These amendments were essentially associated with the treatment of the western wall. In my view this constituted a minor amendment only and there is no order as to costs. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development consent to 2016/0516 for a child care centre at 41 Brays Road, Concord is refused. 3. The exhibits are returned except Exhibits 2, A and B. ………………………. Peter Walsh Commissioner of the Court 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: 26 April 2019