Force Way Group Pty Ltd v City of Parramatta Council [2021] NSWLEC 1024

Land and Environment Court New South Wales

Medium Neutral Citation: Force Way Group Pty Ltd v City of Parramatta Council [2021] NSWLEC 1024 Hearing dates: 10-11 August 2020; 10-11 December 2020 Date of orders: 21 January 2021 Decision date: 21 January 2021 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is dismissed. (2) Development application DA 788/2017 for demolition of the existing single storey dwelling, the construction of a two-storey childcare centre with a capacity of 44 children and basement parking for 12 vehicles at 83 Gladstone Street, North Parramatta is refused. (3) The exhibits are returned with the exception of Exhibits H, 12, 23, 38. Catchwords: DEVELOPMENT APPLICATION – childcare centre – compliance of the development with childcare regulations – whether the acoustic impact of the development is reasonable – constraints of the proposed plan of management – sufficiency of indoor and outdoor unencumbered play space – amenity of outdoor play areas – suitability of the site for the development Legislation Cited: Education and Care Services National Regulation Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Parramatta Local Environmental Plan 2011 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy No 55—Remediation of Land Cases Cited: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Hoxton Park Residents Action Group Inc. v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 Stockland Developments Pty Ltd v Wollongong Council (2004) 139 LGERA 374; [2004] NSWLEC 470 Tahany Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1008 Texts Cited: Association of Australasian Acoustic Consultants Guideline for Child Care Centre Acoustic Assessment (Version 2.0, October 2013) Association of Australasian Acoustic Consultants Guideline for Child Care Centre Acoustic Assessment (Version 3.0, September 2020) Australian Government, Department of Health, Guidelines for Healthy Growth and Development for Your Child Australian Standards AS 1055: Acoustics- Description and Measurement of Environmental Noise Department of Environment and Planning, Child Care Planning Guideline (August 2017) Parramatta Development Control Plan 2011 NSW Noise Policy for Industry Category: Principal judgment Parties: Force Way Group Pty Ltd (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: J Smith (Applicant) J Walker (Respondent)

Solicitors: Centurion Lawyers (Applicant) City of Parramatta Council (Respondent) File Number(s): 2018/183803 Publication restriction: No

Judgment 1. COMMISSIONER: The Applicant, Force Way Group Pty Ltd, appeals to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act) following the refusal of its development application by Parramatta City Council. The development application (DA 788/2017), in its original form, sought consent for demolition of the existing single storey dwelling, the construction of a two-storey childcare centre with a capacity of 52 children and basement parking for 13 vehicles. The development is proposed at 83 Gladstone Street, North Parramatta. 2. During the course of the proceedings a number of changes have been made to the proposal through the grant of leave to the Applicant to amend their application. At the hearing the development for which consent is sought is: * Demolition of the existing single storey dwelling, * Construction of a two-storey childcare centre with a capacity of 44 children: 12 children in the 0-2 year age range, 15 children in the 2-3 year age range and 17 children 3-5 years old, * Basement parking for 12 vehicles, and * Construction of acoustic barriers, landscaping and site works. 1. Notwithstanding the amendments to the development the Respondent maintains that the development warrants refusal on the following grounds: * The proposal will have unacceptable acoustic impacts on adjoining properties, * That the acoustic walls proposed to manage the noise impacts of the development will result in unacceptable visual impacts and overshadowing of adjoining properties. * The management measures proposed to manage the acoustic impacts of the proposal will result in unacceptable constraints on the operation of the childcare centre. * The landscaping proposed to screen the acoustic barriers around the rear play area is unlikely to survive due to inadequate space and inadequate access. 1. In the Respondent's closing submission, they accept that the second ground detailed in the preceding is capable of being addressed by a condition of consent requiring clear acoustic barriers. Such a condition is included in the agreed conditions of consent. 2. Based on the evidence in the proceedings, as summarised in the following and contained in the various experts oral and written evidence, it is my assessment that the proposed childcare centre warrants refusal. In summary, I find that the acoustic issues raised by the amended application and the reliance on the Plan of Management (POM) and the internal acoustic barrier as a means of mitigating the acoustic impacts demonstrate that the site is not suitable for the intensity of the proposed use: s 4.15(1)(c) of the EPA Act. My reasoning is detailed in the following judgment.

Site and locality 1. The site has a frontage to Gladstone Street of 18.03m, a depth of 51m and an area of 905.9m². The site is affected by Class 5 acid sulphate soils. The land falls at a slope of some 3% from the south-eastern corner to the north western boundary. (Exhibit 12) 2. Adjoining the site to the west is detached dwelling houses on similarly sized allotments. To the east is a multi-dwelling development with frontage to both Gladstone and Webb Streets. To the north of the site are multi-dwelling developments and detached dwellings.

Public submissions 1. The original development application was advertised and notified to surrounding properties in September and October 2017. Two submissions and a petition in objection were received. These objections raise concerns with the development application including: an abundance of childcare centres in the locality (lack of demand); acoustic impacts; tree removal; site isolation; setbacks; the provision of adequate unencumbered outdoor space; impacts during construction and road congestion.

Planning controls 1. Pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), the development application is made with the consent of the owner of the land. 2. As required by cl 77 of the EPA Regulation the development application was notified by Parramatta City Council. Pursuant to s 4.15(1)(e) of the EPA Act I have given consideration to the submissions received in determining the development application. 3. As required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. I accept that the likelihood of contamination is low. The potential for the presence of asbestos in the existing dwelling is addressed in the agreed conditions of consent. I am satisfied that the site is suitable, or is able to be made suitable, prior to the commencement of the proposed use. 4. The site is zoned R3 – Medium Density Development pursuant to Parramatta Local Environmental Plan 2011 (LEP 2011). Childcare Centres are permissible with consent in the zone. The objectives of the R3 zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide opportunities for people to carry out a reasonable range of activities from their homes if such activities will not adversely affect the amenity of the neighbourhood. • To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods. 1. Consistent with cl 2.3(2) of LEP 2011 I have given consideration to the zone objectives in determining the development application. 2. The proposed development complies with the principal development standards in Part 4 of LEP 2011 for height (11m) and floor space ratio (0.6:1). 3. The site is mapped as having Class 5 Acid Sulphate Soils. However, the site is not within 500m of another soil class and I am satisfied the development will not have any adverse impact arising from acid sulphate soils. 4. The development application seeks consent for the excavation of the site for basement car parking. Clause 6.2 of LEP 2011 applies. In determining the development application, I have taken into consideration the matters listed at cl 6.2(3) of LEP 2011. 5. The provisions of cl. 6.12 and 6.13 in LEP 2011 pertaining to Design Excellence do not apply to the land. 6. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 ('Childcare SEPP') applies. At cl 3 the aims of the Childcare SEPP are stated as: The aim of this Policy is to facilitate the effective delivery of educational establishments and early education and care facilities across the State by— (a) improving regulatory certainty and efficiency through a consistent planning regime for educational establishments and early education and care facilities, and (b) simplifying and standardising planning approval pathways for educational establishments and early education and care facilities (including identifying certain development of minimal environmental impact as exempt development), and (c) establishing consistent State-wide assessment requirements and design considerations for educational establishments and early education and care facilities to improve the quality of infrastructure delivered and to minimise impacts on surrounding areas, and (d) allowing for the efficient development, redevelopment or use of surplus government-owned land (including providing for consultation with communities regarding educational establishments in their local area), and (e) providing for consultation with relevant public authorities about certain development during the assessment process or prior to development commencing, and (f) aligning the NSW planning framework with the National Quality Framework that regulates early education and care services, and (g) ensuring that proponents of new developments or modified premises meet the applicable requirements of the National Quality Framework for early education and care services, and of the corresponding regime for State regulated education and care services, as part of the planning approval and development process, and (h) encouraging proponents of new developments or modified premises and consent authorities to facilitate the joint and shared use of the facilities of educational establishments with the community through appropriate design. 1. Relevant to the current proceedings, Part 3 of the Childcare SEPP details the specific controls for childcare facilities. 2. Clause 25 of the Childcare SEPP 'calls up' the Education and Care Services National Regulation (the Regulation) with respect to certain non-discretionary standards for indoor and outdoor play space. The parties agree that the minimum area of unencumbered outdoor space is provided in accordance with cl 108 of the Regulation. It is further agreed that the development meets the requirements for indoor play space. 3. Clause 23 of the Childcare SEPP requires that before determining a development application for the purpose of a centre based childcare centre the consent authority must take into consideration the applicable provisions of the Child Care Planning Guideline (the Childcare Guideline) in relation to the proposed development. The Childcare Guideline referenced at cl 23 of the Childcare SEPP is the Child Care Planning Guideline issued by the Department of Environment and Planning dated August 2017. In determining the application, I have given consideration to the Childcare Guideline. 4. Part 2 of the Childcare Guideline contains seven overarching design principles. Those principles are context; built form; adaptive learning spaces; sustainability; landscape; amenity; and safety. 5. Part 3 of the Childcare Guideline contains a series of matters of consideration. Relevant to the contentions in dispute are the following matters for consideration: * 3.1 Site Selection and Location "Objective: to ensure that appropriate zone considerations are assessed when selecting a site. C1: For developments in or adjacent to a residential zone, consider: - the acoustic and privacy impacts of the proposed development on the residential properties. … Objective: to ensure that the site selected for a proposed childcare facility is suitable for the use. When selecting a site, ensure that: - the location and surrounding uses are compatible with the proposed development or use. … - the characteristics of the site are suitable for the scale and type of development proposed having regard to: - size of street frontage, lot configuration, dimensions and overall size. - number of shared boundaries with residential properties. - the development will not have adverse environmental impacts on the surrounding area, particularly in sensitive environmental or cultural areas. …" * 3.2 Local Character, Streetscape and the Public Domain Interface. "Objective: to ensure that the childcare facility is compatible with the local character and surrounding streetscape. C5: The proposed development should: - contribute to the local area by being designed in character with the locality and existing streetscape. …" 1. Part 4 of the Childcare Guideline addresses the application of the Regulation to development applications. Relevantly, Section 4.4 provides as follows: "Regulation: Services must be well-ventilated, have adequate natural light, and be maintained at a temperature that ensures the safety and wellbeing of children. Childcare facilities must comply with the light and ventilation and minimum ceiling height requirements of the National Construction Code. Ceiling height requirements may be affected by the capacity of the facility. Design Guidance: Good ventilation can be achieved through a mixture of natural cross ventilation and air conditioning. Encouraging natural ventilation is the basis of sustainable design; however, there will be circumstances where mechanical ventilation will be essential to create ambient temperatures within a facility. …" 1. Section 4.10 of the Childcare Guideline addresses the requirements of the childcare facility in relation to the Natural Environment. The Guideline restates the requirements of the Regulation and provides design guidance as follows: "Regulation: The approved provider of a centre – based service must ensure that the outdoor spaces allow children to explore and experience the natural environment. Design Guidance: … The outdoor space should be designed to: - provide a variety of experiences that facilitate the development of cognitive and physical skills, provide opportunities for social interaction and appreciation of the natural environment. - assist in the supervision and minimise opportunities for bullying and antisocial behaviour. - enhance outdoor learning, socialisation and recreation by positioning outdoor urban furniture and play equipment in configurations that facilitate interaction." 1. The Parramatta Development Control Plan 2011 (DCP 2011) applies to the site. However, as a result of cl 26 of the Childcare SEPP its operation in relation to the assessment of the proposed development is limited. The clause states: 26 Centre-based child care facility—development control plans (1) A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility: (a) operational or management plans or arrangements (including hours of operation), (b) demonstrated need or demand for child care services, (c) proximity of facility to other early education and care facilities, (d) any matter relating to development for the purpose of a centre-based child care facility contained in: (i) the design principles set out in Part 2 of the Child Care Planning Guideline, or (ii) the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates). (2) This clause applies regardless of when the development control plan was made. 1. It is agreed between the parties that the remaining provisions of DCP 2011 in relation to parking, height and setbacks are complied with in the amended development proposal. 2. It is accepted by both acoustic experts, and the Counsel for the parties, that the Association of Australasian Acoustic Consultants Guideline for Child Care Centre Acoustic Assessment (the AAAC Guideline) is the appropriate standard for the assessment of any acoustic impacts arising from the development. At the commencement of the proceedings the relevant edition of the AAAC Guideline was Version 2, dated October 2013. It contained the following relevant acoustic criteria: "An acoustic criterion of the rated background level + 10dB(A) for outdoor play of less than 2 hours per day. Where the outdoor play was of a longer duration the criterion was the rated background level + 5dB(A)." 1. Version 2 of the AAAC Guideline also included a range of sound power levels for the differing age groups of children at play. 2. In September 2020 an updated version of the AAAC Guideline, Version 3, was released. The AAAC Guideline Version 3 provided updated noise criteria and sound power level guidance. The current criteria, adopted by the acoustic experts in the final stages of the proceedings, are: * That the ambient background level to be utilised for assessment purposes is set at a minimum of 40dB(A). * Where outdoor play is proposed for more than two hours in the AM and two hours in the PM the noise criteria is 45dB(A). * The assessment location, at which the noise criteria is to be met, is the most affected point on or within any residential receiver property. 1. Further, Version 3 of the AAAC Guideline provides the following sound power levels for groups of ten children playing, replacing the previous range. (Exhibit 31) 1. In the AAAC Guideline, the allocation of sound power levels for passive play is addressed by a reduction of 6dB(A) from the levels provided in the preceding table. (Exhibit 31)

Precis of expert evidence 1. The Court was assisted by town planning experts, Mr Jonathan Wood for the Applicant and Mr Stuart McDonald for the Respondent. These experts prepared a number of joint town planning reports that were tendered in the proceedings. In addition, the planning experts were called for cross-examination. 2. At the conclusion of their evidence the planning experts remained in disagreement about the appropriateness of the accessibility of the entry to the proposed childcare facility. The Applicant responded to Mr McDonald's concerns with an amended design for the front entry to the childcare facility. Leave to rely on the amended plan was not opposed by the Respondent and was granted by the Court. In the course of the hearing Mr McDonald confirmed that, subject to conditions confirming the landscaping design of the entry, his concerns about this component of the development were resolved. At the conclusion of the hearing the remaining issues between the planning experts were: * The merit of the boundary acoustic fence (a 2.7m high angled barrier) and the effectiveness of the proposed perimeter landscaping in mitigating the impacts of the barrier. In particular its visual impact and overshadowing. Notably, the Respondent accepts that these concerns are capable of being resolved by agreed conditions (Condition 40A(f)), refer to [4]). 1. The Court was assisted by landscape experts, Mr Scott Freeman for the Applicant and Mr Ryan Bolland for the Respondent. These experts prepared a number of joint landscape reports that were tendered in the proceedings. In addition, the experts were called for cross-examination. 2. At the conclusion of their evidence the landscape experts remained in disagreement about the following aspects of the development: * The width required between the boundary fencing and the acoustic screen proposed to facilitate successful planting, growth, watering and maintenance of the proposed screening hedge. 1. The Court was assisted by childcare experts, Ms Lynda Campbell for the Applicant and Ms Wendy Shepherd for the Respondent. These experts prepared a number of joint expert reports that were tendered in the proceedings. In addition, the experts were called for cross-examination. 2. At the conclusion of their evidence the childcare experts remained in disagreement about the following aspects of the development: * Whether the outdoor play area proposed adequately permits children to explore and experience the natural environment as required by the Regulation (refer to [25]); * Whether the amount of active play facilitated by the play schedule proposed in the POM is sufficient, specifically the quantum of outdoor active play; * Whether the following factors are at odds with children's ability to freely choose between indoor and outdoor play and active and quiet play: the rigidity of the POM; the dividing acoustic barrier in the outdoor play area; and the limit of five children outdoors at a time; * Whether the centre, and specifically the proposed cot room, have sufficient natural ventilation to meet the requirements of the Regulation and the Childcare SEPP. 1. The Court was assisted by acoustic experts, Mr Steven Cooper for the Applicant and Mr Richard Haydon for the Respondent. These experts prepared a number of joint landscape reports that were tendered in the proceedings. In addition, the experts were called for cross-examination. 2. At the conclusion of their evidence the acoustic experts remained in disagreement about the following aspects of the development: * What relevant noise criteria is to be utilised in the assessment of the proposed childcare facility; * Whether the Applicant's noise logging used to establish the background level is accurate; * What is the most sensitive receiver for noise generated from the childcare facility and what is to be utilised as the background noise level for this receiver; * Whether the acoustic modelling undertaken by the Applicant is representative of the likely noise generated by the development; * Whether the noise criteria are exceeded by the proposed development. 1. Individual expert evidence was provided by Mr Johnny Su who prepared an expert report on stormwater for the Respondent. In closing Ms Walker confirmed that Mr Su's previous concerns in relation to the Applicant's stormwater design had been resolved to the Respondent's satisfaction, subject to appropriate conditions of consent.

Does the proposal have an unacceptable acoustic impact on adjoining properties? 1. The subject site is located in a residential zone. The rear of the site, where the outdoor play spaces are proposed, shares a boundary with four adjoining residential properties. 2. The Applicant argues that any impacts on acoustic amenity arising from a childcare centre are ameliorated by: 1. Management of the number of children that are outside at any one time; 2. Management of the types of play that children undertake outside and the separation of active play and passive play into distinct defined play areas; 3. The provision of acoustic barriers; and 4. The management of openings in the childcare facility building itself. 1. The POM states that a total of 8 childcare educators will be required to work directly with the children and that a further staff person, the centre manager, will be employed to 'assist with relief during staff lunch breaks, programming time and other general administrative work'. (Exhibit 23) 2. The POM also includes an indicative daily timetable that seeks to demonstrate that the restrictions arising from the acoustic assessment can be accommodated. Those operational restrictions are: 1. That only the western half of the outdoor play area can be utilised for active play, with the eastern half restricted to passive (i.e. quiet) play. 2. The doors and windows on the eastern side of the 3-5 year old classroom being maintained closed when the room is in use. The southern door of the classroom to the outdoor play area can remain open. 3. Any external doors and windows to the 2-3 year old classroom can only be open in circumstances where the outdoor play areas are not in use. 4. The cot room windows are required to be closed when the room is in use. 5. No amplified music or sound is to be used outside the building. (Exhibit 23) 1. The principal acoustic contention between the parties is the impact of noise emissions from outdoor play at the proposed childcare facility. 2. In his June 2020 acoustic assessment (the June Cooper Report) Mr Cooper reaches the following broad conclusions of the impact of noise emissions from outdoor play at the proposed childcare facility. Notably, this assessment was completed prior to the release of the AAAC Guideline Version 3: 1. Applying Australian Standards AS 1055: Acoustics- Description and Measurement of Environmental Noise, and the ambient background measurement procedures set out in Fact Sheet B of the NSW Noise Policy for Industry, the rating background noise level (RBL) for the site is 39dB(A). The acoustic criterion for the proposed development is therefore 44dB(A). 2. The weekday ambient Leq is 51dB(A). 3. To determine a 'worse case scenario' the assessment utilises the upper range of sound power level in the AAAC Guideline, Version 2 for each age group of children. To determine the noise emissions the children are spread out across the two outdoor play areas in an even gridded distribution. All children are modelled speaking simultaneously. 4. The 'upper level western window of the villa at 33-35 Webb Street is considered to be the critical receiver location as it overlooks the outdoor play area'. (Exhibit 15) 5. That the outdoor play area at the rear of the site is required to be divided into two separate fenced areas as follows: * To achieve compliance with the acoustic criterion (of 44dB(A)) the outdoor play areas are required to have the following operation: '- Outdoor Play Area 1 ("OPA1") on the western side of the rear yard is to be used for active play whilst Outdoor Play Area 2 ("OPA2") on the eastern side of the rear yard is to be used for passive play/activities; - The use of the outdoor play areas by 3-5 year old children is to have a total capacity of 10 children (i.e. half of the classroom) with 5 children in OPA1 and 5 children in OPA2; - the use of the outdoor play areas by 2-3 year old children is to have a maximum of 8 children in OPA1 and a maximum of 7 children in OPA2; - the use of the outdoor play areas by 0-2 year old children us to have a maximum of 6 children (i.e. half of the classroom) in OPA1 and a maximum of 6 children in OPA2; - the program for the outdoor play areas will restrict the use of the outdoor play areas to one age group at any time as noted above.' (Exhibit 15) * To provide shielding of noise emissions from the outdoor play areas to the nearest residential receivers: '- The eastern side of OPA2 is to have an angled acoustic barrier that has a height of 2.7 metres above natural ground level and is to be set-in 1 metre from the eastern boundary of the site; - the intermediate boundary between OPA1 and OPA2 is to have a height of 2.7 metres above the natural ground level and is to be angled into OPA1; - the southern side of the outdoor play areas are to have an angled acoustic barrier that is 2.6 metres above the natural ground level and is to be set-in 1 metre from the southern boundary of the site; - the western side of OPA1 is to have a vertical barrier with a height of 2.5 metres above the natural ground level and is to be set-in 1 metre from the western boundary of the site.' (Exhibit 15) 1. The June Cooper Report, amongst other earlier acoustic assessments, was the subject of the acoustic experts joint conferencing. 2. In relation to the controls and procedures proposed by Mr Cooper to manage the acoustic impacts Mr Haydon's evidence can be summarised as follows: * The noise management strategies required to achieve acoustic compliance for the site are complex and confusing. Further, he argues that they "would not be required to be so onerous, had a more suitable site been selected for the proposed childcare centre, had the childcare centre been smaller, or the number of children proposed been significantly smaller". (Exhibit C) * That the adjacent residential receivers may be exposed to noise emissions from the use of the outdoor play areas for up to 7.5 hours a day. * That the mitigation controls and procedures are insufficient to ensure that adjoining sensitive receivers will not experience noise levels that breach the noise criteria. 1. In relation to Mr Cooper's modelled scenario of children in the outdoor play areas, Mr Haydon argues that the scenario is firstly not realistic and secondly does not represent a 'worse case scenario'. His reasoning is as follows: 1. The noise sources (children playing) are located with significant offsets between themselves and the noise barriers. 2. The receivers utilised are not 'worst case receivers'. In particular Mr Haydon argues that the balcony of the upper floor of 33 Webb Street is the most sensitive receiver (as opposed to the window of this property adopted by Mr Cooper) and further assessment of the impact to this location is required. 3. That the play scenarios modelled are unrealistic. Mr Haydon argues that it is unlikely that the children would play individually, separated from each other. He argues it is more likely that they would play in groups. Further, he argues that it is unlikely that the children would all play within the confines of the acoustic barriers, rather than for example on the verandah area which is unshielded. 4. That no allowance has been made for the reflectivity of noise on the verandah area or within each of the fenced play spaces. 1. Mr Haydon concludes that, on Mr Cooper's own assessment, to avoid an exceedance of the acoustic criterion at the balcony of 33 Webb Street the POM would need to be amended to allow only four children in OPA2 (Exhibit C). The Applicant has not adopted this amendment (Exhibit 23). Mr Haydon further notes that, on his calculations, exceedances of the acoustic criterion can be predicted at eight locations: four in relation to 81 Gladstone Street; one in relation to Brabyn Street; and three in relation to 33 Webb Street. 2. Finally, it is Mr Haydon's evidence that the proposed childcare facility may also have noise amenity impacts on future, potential development, of the adjoining sites. In reaching this conclusion, Mr Haydon makes the assumption that the adjoining sites, also zoned R3 Medium Density Residential, will contain two storey residential receivers in the future. Based on his acoustic analysis he argues that these future receivers will experience unacceptable acoustic impacts of some 12dB(A) above the acoustic criterion of 44dB(A) (Exhibit C).

Further acoustic evidence following the release of Version 3 of the AAAC Guideline 1. Following the completion of the joint report, and the release of the Version 3 of the AAAC Guideline Mr Cooper provided a supplementary report to the Court, amending his calculations and evidence to reflect the Guideline's new parameters. Those amendments can be summarised as adopting: 1. an ambient background level of the minimum 40dB(A) for the locations which had previously recorded an RBL of below 40dB(A). 2. an acoustic criterion of 45dB(A), being 5dB(A) above background as outdoor play for the proposed childcare centre will exceed two hours per day. 3. new sound power levels for children of the relevant age groups at active play. 4. new sound power levels for children of the relevant age groups at passive play. 1. The outcome of these changes, on Mr Cooper's calculations, is that there is no predicted exceedance of the acoustic criterion arising from the proposed development if the mitigation measures are in place. 2. Following the release of Version 3 of the AAAC Guideline and Mr Cooper's supplementary report Mr Haydon also updated his evidence through the provision of a supplementary report. As a result of the changes in the Guideline, on Mr Haydon's calculations there would be an exceedance of the acoustic criteria of at least 2.5dB(A) at two locations on the balcony of 33 Webb Street (the most sensitive receiver). Further, he argues that there would be exceedances of the acoustic criteria for future two storey development (as discussed at [52]). Finally, Mr Haydon re-states his concern that Mr Cooper's play scenarios are unrealistic, which may mean the actual exceedances are more significant. 3. Mr Haydon concludes that the proposed development will have a detrimental acoustic impact on the adjoining residential properties.

Background Level at the most sensitive receiver 1. Whilst there was initial disagreement between the experts as to the most sensitive receiver location, it was ultimately agreed to be the western side of the first floor balcony of 33 Webb Street, specifically at the balustrade (referred to as R5b2 by Mr Haydon, and B2 by Mr Cooper). 2. Further, acoustic logging was undertaken by Mr Cooper in August 2020 (Exhibit 16). However, the experts remain in disagreement as to the appropriate RBL at this location. This disagreement about the RBL explains the difference between Mr Haydon and Mr Copper as to whether the acoustic criterion is exceeded at the most sensitive receiver. 3. Those differences can be summarised as follows: * Mr Cooper undertook noise monitoring in the rear of the subject site at a height that he determined to be equivalent to 1.5m above the first-floor balcony of 33 Webb Street (Exhibit 31). The result of his monitoring provided an RBL of 44dB(A), therefore an acoustic criterion of 49dB(A) for this location. Applying Version 3 of the Guideline, which requires that the measured representative noise environment at a location best representative of the most affective sensitive receiver should be used to establish the relevant criteria for all sensitive receivers, Mr Cooper argues that the acoustic criterion for the most sensitive receiver is therefore 49dB(A). * Mr Haydon argues that Version 3 of the Guideline requires the adoption of a single RBL for the site, which he argues should be 40dB(A) based on the RBL established in the June Cooper Report from the noise monitoring in the rear yard. Mr Haydon argues that a free field microphone at a height of 5.7m is not representative of the background noise experienced on a first-floor balcony adjacent a building as asserted by Mr Cooper. Therefore, on his calculations, the acoustic performance at the first-floor balcony of 33 Webb Street is an exceedance of 2.5dB(A) [47.5dB(A) – 45dB(A)]. (Exhibit O)

Submissions 1. Ms Walker, counsel for the Respondent, submits that Mr Haydon's RBL should be accepted by the Court on the basis of his evidence that 'a microphone at a height of 5.7m in a free field location is not representative of the background noise which would be experienced on the first floor of an adjoining building'. She notes that the original acoustic measurements for the proposed development nominated a RBL of 38dB(A), which applying Version 3 of the Guideline results in an RBL of 40dB(A) which is consistent with Mr Haydon's evidence. 2. Ms Walker relies on the cross-examination of Mr Cooper, and relevantly his oral agreement that he had no concerns in relation to the RBL of 38dB(A) when he adopted them in his June Cooper Report. Further, she relies on his admission that he 'only decided to re-measure the background levels after Mr Haydon identified exceedances based on these [initial] background levels'. (Respondent's written submissions 11 December 2020) 3. Ms Walker argues that Mr Cooper underestimates the acoustic impacts of the proposed development in at least the following ways: * Assuming that the children (noise sources) will play in areas shielded by the noise barriers. For example, Mr Cooper's analysis excludes any children playing on the verandah. Ms Walker notes that this exclusion is not reflected in the POM. * Mr Cooper fails to allow for the possibility of children playing in groups, at locations near the sensitive receiver. Rather Mr Cooper assumes they will play alone. * Mr Cooper's predictions fail to make any allowance for noise reflection with the outdoor play areas or sound build up at the receiver locations. 1. Ms Walker concludes that the Respondent's contention that the proposed development will have a detrimental impact on adjoining properties has been made out. She submits that the Court should refuse the development on these grounds. 2. In the alternative, Dr Smith, counsel for the Applicant, argues that firstly Mr Cooper's evidence should be preferred, and secondly that the proposed development meets the requirements of Version 3 of the Guideline and thus any acoustic impact is reasonable. His reasoning is as follows: 1. Mr Haydon's analysis of the impact of the proposed development on future redevelopment of the adjoining properties should be discounted. Firstly, because such assessment is not required by Version 3 of the Guideline; secondly, the assumptions made by Mr Haydon in completing the modelling are uncertain (for example there is a range of forms of development that are permissible on the adjoining lots); and finally because the consideration of such an impact is too remote to fall within the considerations at s 4.15(1) of the EPA Act: Hoxton Park Residents Action Group Inc. v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 at [44]; Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [6]-[8] and [55] ('Ballina v Palm Lake Works'). 2. That Mr Cooper's analysis of the RBL at the most sensitive receiver should be preferred and adopted by the Court, thus the proposed development is acoustically compliant. In arguing this point Dr Smith contends that Mr Cooper's experience and qualifications in comparison to Mr Haydon's gives weight to the pre-eminence of his expertise and the Court should prefer his evidence. 3. That applying the definition of 'Logger location' from Version 3 of the Guideline, Mr Cooper's RBL of 44dB(A) at the most sensitive receiver becomes the criteria for all locations. Therefore, the noise criterion becomes 44dB(A) + 5dB(A)= 49dB(A). Dr Smith notes that even if Mr Haydon's analysis of the noise emissions from the proposed development are accepted, this noise criteria of 49dB(A) is met at the most sensitive receiver. He concludes proposed development meets the acoustic requirements of Version 3 of the Guideline. (Applicant's written submissions, 11 December 2020) 1. In response to the Respondent's criticisms of Mr Cooper's model and the estimation of acoustic impacts, Dr Smith argues: 1. The R3 Medium Density zone objectives and the list of permissible uses does not anticipate zero impact. The question for the Court is the reasonableness of any adverse impact. 2. That the sound power levels utilised in Mr Cooper's June Report and his Supplementary Report are groups of ten children playing, as made plain in the descriptor to Table 1 of Version 3 of the AAAC Guidelines which states:' Effective Sound Power Levels (Laeq, 15 min) for Groups of 10 Children Playing'. 3. Mr Cooper's modelling represents a normal distribution of the noise sources within the outdoor play areas which is a legitimate, and commonly used, approach. Dr Smith cites previous reports prepared by Mr Haydon's company, Acoustic Dynamics, to support this assertion: Exhibit 33. 1. Dr Smith submits that in determining the development application it is important to place weight on the fact that the proposal complies with the development standards in LEP 2011 and DCP 2011. 2. Further, Dr Smith submits that the planning principle enunciated in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [115]-[119] is relevant to the application. That principle is that 'in most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the projects results in acceptable environmental impacts.' It is his submission that the Court would be satisfied that the use of the site for a childcare centre would reflect the orderly and economic development of the site and the impacts can be sufficiently ameliorated. (Applicant's written submission, 11 December 2020) 3. In determining the acceptability of impacts Dr Smith submits that the R3 Medium Density zoning is relevant. It is his submission that 'the zone objectives disclose that there will not be 'zero' impact from non-residential uses, or that the nature of the limited non-residential permissible uses limits that impact.' (Applicant's written submission, 11 December 2020, emphasis original) 4. Dr Smith concludes that, on the evidence of Mr Cooper, and an appropriate assessment, the Court should conclude that proposed development will not have an unacceptable acoustic impact on the adjoining properties, including the location agreed by the experts to be the most sensitive receiver.

Findings 1. The Court's planning principle on noise attenuation emphasises that preference should be given to noise attenuation at the source: Stockland Developments Pty Ltd v Wollongong Council (2004) 139 LGERA 374; [2004] NSWLEC 470 at [6]. 2. I accept the submission of Dr Smith that the amelioration measures proposed by the Applicant (summarised at [43]) are not uncommon, and have been supported by the Court in a number of its decisions. However, it is a matter of merit assessment on the specific facts of the proposal whether these measures are appropriate, reasonable and capable of reliable implementation through, for example, a POM. 3. At the conclusion of the acoustic evidence, to assist in determining the merits of the proposed development, it is necessary to make findings in relation to: 1. The relevant background level and acoustic criterion for the proposed development; 2. How realistic the scenarios on which the modelling is based are; 3. Reasonableness of any impact of the development at the first-floor balcony of 33 Webb Street. 1. I accept the submission of Dr Smith at [65] that the sound power levels in Version 3 of the AAAC Guidelines are for groups of children playing, refer to [31]. I am satisfied that applying a normal distribution of the noise sources over the outdoor play areas is an appropriate means of determining a modelled noise arising from the childcare facility. Further, as is made clear from the following, the verandah area has been incorporated in the modelled area of OPA2. (Exhibit 15) 1. Version 3 of the AAAC Guidelines states: "Background Noise Level The background noise level should be measured using continuous noise logging for a period of at least five consecutive weekdays. If the childcare centre is proposed to operate on Saturday and/ or Sunday these days should be included. At least three of those days must not be affected by adverse weather. Meteorological data may be measured onsite or access from the nearest Bureau of Meteorology weather station. … Logger Location For the assessment of noise emission, the noise logger should be located to measure the background noise environment at a location most representative of the most affected sensitive receiver locations. If monitoring at this location is not possible, the acoustical consultant shall select another suitable and equivalent location. This measured representative noise environment should be used to establish relevant criteria for all sensitive receivers." (Exhibit 31) 1. I accept the agreement of the acoustic experts that the most sensitive receiver location relevant to the proposed development is the western side of the of the first floor balcony of 33 Webb Street, specifically at the balustrade (referred to as R5b2 by Mr Haydon, and B2 by Mr Cooper). 2. Applying the approach to the determination of RBL detailed in Version 3 of the AAAC Guidelines I accept and prefer the determination of the RBL for the most sensitive receiver by Mr Cooper of 44dB(A). I am satisfied that the noise monitoring undertaken by Mr Cooper represents an equivalent location to the most sensitive receiver. On this basis the acoustic criterion is 49dB(A) for this location. 3. Applying the Version 3 of the Guideline, and my findings in the preceding paragraph, it is appropriate that this be the RBL for all sensitive receivers. 4. I accept Dr Smith's submission that even if Mr Haydon's analysis of the noise emissions from the proposed development are accepted, the noise criteria of 49dB(A) is met at the most sensitive receiver, noting that Mr Haydon's calculation in Table 1 of Exhibit O identify no residential receiver locations expected to exceed 49dB(A). 5. A fair reading of the evidence is that on Mr Cooper's modelling, assuming compliance with all the mitigation measures he proposes, the development is capable of meeting the required acoustic criterion of 49dB(A) at the most sensitive receiver. As such on the face of the acoustic evidence the impact on first-floor balcony of 33 Webb Street is acceptable. 6. Finally, I accept Dr Smith's submission that little or no weight under s 4.15(b) of the EPA Act can be given to any potential impact to a hypothetical future development of the adjoining land, as it is too remote and uncertain: Ballina v Palm Lake Works at [6]-[8].

Do the measures proposed to manage the acoustic impact in an unacceptable constraint on the operation of the centre? 1. As noted at [43] and [45] the Applicant proposes, as part of its management of the acoustic impacts, to direct the operation of the childcare centre through a POM. 2. The Respondent criticises the POM in the following principal ways: * Firstly, whether the amount of active play facilitated by the play schedule is sufficient, specifically the quantum of outdoor active play; * Secondly, whether the rigidity of the POM, the dividing acoustic barrier in the outdoor play area, and the limit of five children outdoors at a time, is at odds with children's ability to freely choose between indoor and outdoor play and active and quiet play; and * Finally, whether the POM meets the planning principle detailed in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 at [54] ('Renaldo'). This component is addressed principally in submissions. 1. The childcare experts provided written and oral evidence on these issues. 2. At the conclusion of her evidence Ms Shepherd, for the Respondent maintained the following key concerns: 1. Firstly, the appropriateness of the proposed outdoor play area to provide an opportunity for exploration and experience of natural play; 2. Secondly, whether the POM provided sufficient quantum of outdoor active play opportunity for children; and 3. Finally, whether there is a lack of natural ventilation in the proposed childcare centre, and specifically in the proposed cot room. 1. In relation to the preceding Ms Shepherd's evidence can be summarised as: 1. That the landscape design for the outdoor play areas should be amended as follows to improve its compliance with the Regulation and to provide sufficient natural elements: "Prior to the issue of a Construction Certificate, the Landscaping Plan shall be amended to incorporate the following changes: (a) Natural turf to be substituted for synthentic turf in at least the passive play area OPA2 and, if feasible, also the active play area OPA1. (b) Move the cubby house from OPA1 to OPA2 to replace the timber bench in OPA 3. (c) Remove the tee pee from OPA1 (d) Remove the sensory path from OPA2 and replace it with a dry creek bed with tap and drainage closer to the back fence and provide more open mulched area for children to fossick in. (e) Add some under bench/sit on locker storage for sandpit and outdoor play equipment." These changes are agreed by Ms Campbell and the Applicant and are included in the agreed conditions of consent. 1. Further, she argues that children should not be 'expected to play quietly with passive play experiences in an outside play space as children will be engaging in pretend play experiences'. (Exhibit 22) 2. '[t]he division of OPA1 and [O]PA2 by a 2.7[m] angled acoustic barrier will impact on the freedom of movement of the children, for running jumping, climbing and ball games. The division of the play spaces confines the multiple modes of play to particular spaces'. (Exhibit M) 3. That the schedule proposed in the POM to meet the acoustic criterion is at odds with allowing children to play and choose freely between active and passive opportunities. The need for educators to interrupt children at play may have negatives impacts on their development and will create practical difficulties in supervision. (Exhibit 23) 4. That the POM includes a complex timetable for allocating play areas to the different age groups. Ms Shepherd argues that the effect of the timetable is that if a child arrives after 9.30am and leaves the centre before 3.30pm, there is a likelihood they would not be provided an allocated time in the active outdoor play area. She concludes that the timetable fails to ensure that all children have access to active outdoor play for an appropriate amount of time. (Exhibit 23) I note that this conclusion is in contrast to the agreed statement of the experts in their supplementary joint report that ' … the Plan of Management as per version dated 10th August 2020 now allows children the optimal outdoor play time. The children have access to a minimum of 2 hours of outdoor active play'. (Exhibit 22) 1. That the Australian Government Guidelines for Healthy Growth and Development for Your Child (Guidelines for Growth) recommends for toddlers and pre-schoolers at least 180 minutes spent in a variety of physical activities. Given the length of time the childcare centre is open it is Ms Shepherd's evidence that at least two hours of that active play should occur whilst at childcare. 1. Ms Campbell disagrees with Ms Shepherd's concern in relation to the noise generation arising from children in passive play. She argues that: "By limiting the grouping size to 5 children between 2-5 years in the passive play side they will be able to engage in pretend play without having to be expected to play quietly as the acoustic recommendation was up to 7 children aged 2-3 years here" (Exhibit 22) 1. By reference to the June Cooper Report recommendations, extracted at [47] it is clear that the acoustic requirement is a maximum of 7 x 2-3 year old children, or 5 x 3-5 year old children in OPA2. 2. In their joint report the childcare experts agree that: "If it was possible to remove the dividing acoustic barrier to be installed in the middle of the play areas, and develop the play space as per above suggestions, the children would naturally select to play actively or passively in a natural play rhythm according to their choice. This would also lessen the sense of being enclosed. If the barrier is to stay in the plan, the partial see through sections of the middle acoustic barrier is an improvement." (Exhibit 22) 1. Under cross-examination Ms Campbell maintained that whilst it would be a better outcome to remove the dividing barrier between OPA1 and OPA2, the design of the proposed outdoor play area was acceptable. She argues that the outdoor area meets the 7sqm standard for unencumbered outdoor space in the Regulation and further that the areas will be set up to reflect the types of play (active or passive), allowing the environment to facilitate the appropriate types of play to meet the acoustic requirements. 2. Ms Campbell argues that educators will monitor the children's play and if more than the mandated number wish to engage in active play, they would be required to provide alternative play opportunities. In her view the flexible timetable (in the POM) will allow for children to select play choices throughout the day. (Exhibit 22) 3. Ms Campbell concludes that it is unlikely that children would be noisy at a level not appropriate for the type of play (active/passive) or at a level breaching the acoustic criterion for greater than 15min (LAeq, 15 min). 4. Both childcare experts agreed under cross-examination that the timetable in the POM does not provide for two hours active outdoor play for each child. They disagreed about how the recommended three hours active play in the Guidelines for Growth should be shared between home and the childcare centre for children who attend. Simply put, how much of the three hours of active play should occur at the centre, and how much at home. 5. Ms Campbell, for the Applicant, gave evidence that in her opinion and experience parents of children in long day care may adapt the bedtimes of children to allow more active play as a family after the children return from day care. Further, she argued that may children attend formal sport or other activities on a regular basis. It was her evidence that the provision of active play proposed by the POM was acceptable and did not solely rely on outdoor active play as some component of active play could also occur within the centre. 6. Ms Shepherd disagrees and argues that in winter months active play would be difficult to achieve for families whose children attend the centre for long day care. She detailed this concern in her oral evidence as follows: "SMITH: and on average an hour of that [active play] is expected to be achieved at home and two hours at the centre? WITNESS SHEPHERD: In an ideal world, yes, but for young children who attend a long day program, they get up, 6 o'clock, have their breakfast, get dressed and they're at the centre by 7, 7.30 so their active play in the morning is limited and also of an evening, if a child is there until 6, and a parent takes a child straight home into the bath, have their dinner and story and bed, and there's little time for running around outside. Only in summer, possibly, if the family is not tired from working and collecting children…" (Tcpt, 11 August 2020, pp 89-90)

Submissions 1. In his submission's Dr Smith provided a list of examples where the Court has accepted the use of noise amelioration measures such as acoustic barriers, POM's, limitations of children and the types of play in specific outdoor play areas. I have read and considered these judgments. 2. Dr Smith submits that there is no provision in either the Regulation or the Childcare Guideline that indicates that such management is not permitted, or appropriate. He notes that Version 3 of the AAAC Guideline states at clause 6.6: 'the number of children within the Centre or playing in the outdoor play areas at any one time may be limited to reduce the noise impact' and that Council's DCP at clause 5.2.3.5 encourages separation between active outdoor play and the façade of adjoining residential properties (Exhibit 31). He submits the proposed development implements both of these approaches through the POM and by the design placing only passive play adjacent 33 Webb Street. 3. Further, Dr Smith submits that there is nothing in the Childcare Guideline or Regulation that requires children to have 'unimpeded access to the outdoors'. (Applicant's written submissions, 11 December 2020) 4. In response to the criticism of the timetable in the POM, Dr Smith submits that it is included on an indicative basis and that the timetable can be amended, so long as the centre complies with the limits on the number of children outside and the type of play in which they are engaged. 5. Dr Smith argues that the POM complies with the planning principle in Renaldo. His reasoning is as follows: "(a) There is nothing unreasonable about the controls on the operation of the centre, particularly in circumstances where it is managed and run by adult educators. (b) the Plan of Management requires the educators to be provided with the controls and the restrictions, the Plan of Management is clear on what the maximum number of children is for each area and the other restrictions that apply. (c) the Plan of Management is readily enforceable and breaches can be enforced by the Council through fines, and managed by the centre reverting to compliance, such as closing a window or reducing the number of children in an area. (d) Further, the Plan of Management demonstrates that there is a suitable daily program that can be utilised whilst also maintaining the restrictions. Consistent with the evidence of Ms Campbell, as there is flexibility for one educator to have a ratio of children indoors or outdoors, a program can be adjusted into any number of combinations that ensures that the relevant acoustic goals and child supervision limits are adhered to." (Applicant's written submissions, 11 December 2020) 1. Further Dr Smith argues that any acoustic impact needs arising from the development needs to be assessed in the appropriate context. He argues that the following factors should be given weight by the Court in determining the merits of the application: * That at most there will be five children playing actively in the rear yard, and five playing passively, at any one time, * The subject site is located in the R3 zone which anticipates an increase in the intensity of development, * The most sensitive receiver is an external space, not an internal part of the residence at 33 Webb Street, * Any noise will be generated during the day and does not raise an issue of sleep disturbance, * The acoustic performance of the development is required to be certified as part of the agreed conditions of consent, * Any exceedance would need to occur for a 15-minute duration to create an unacceptable impact. 1. Dr Smith concludes that the Court would be satisfied that, on balance, the use of the subject site for a child care centre reflects the orderly and economic use of the land and that the impacts arising from the use can be satisfactorily ameliorated. He submits that the development warrants approval by the Court, subject to the agreed conditions. 2. In the alternative it is Ms Walker's submission that time in the active outdoor play area will need to be split between 8 different groups of children across a period of 7.5 hours (avoiding outdoor play in the middle of the day). In addition to Ms Shepherd's evidence, Ms Walker submits that only a ninth of the children at the childcare centre can be outside playing actively at any one time to meet the acoustic criteria. Further, she argues that a close reading of the POM identifies that each child has a maximum opportunity of active outdoor play of an hour a day during the operating hours of the centre. She concludes that this analysis demonstrates that the management of the centre, and the outcomes for children, are unduly constrained by the mitigation measures required to achieve acoustic compliance. 3. Ms Walker submits that Ms Campbell is erroneous in arguing that the timetable in the POM is flexible. Rather, Ms Walker argues that it is only 'flexible insofar as it allows for children to spend less than the allocated time outdoors, not more' and given the POM forms part of the conditions of consent, and is required for acoustic compliance is required to be complied with. (Respondent's written submissions, 11 December 2020) 4. Ms Walker argues that: "Section 4.9 of the Guideline provides that a minimum of 7 m² of outdoor space must be provided for every child. This section does not contain any express objective, but its implicit objective must be to enable children to engage in certain activities particularly suited to an outdoor environment, including active play. Even if the proposal complied numerically with section 4.9, it is questionable whether the intent of this provision would be satisfied if the amount of time which children can spend in the outdoor play area is limited." (Respondent's written submissions, 11 December 2020) 1. In relation to whether the childcare centre will provide a sufficient proportion of the recommended three hours active play in the Guidelines for Growth, Ms Walker argues the test for the Court is whether the proposal meets the objectives of Section 4.10 of the Childcare Guideline. She argues that provision of less than one hour of active outdoor play 'is not helping to achieve any of these objectives, because it is not helping children to maintain optimal activity levels'. (Respondent's written submissions, 11 December 2020) 2. Addressing the sufficiency of the POM and the planning principle in Renaldo, Ms Walker argues that the POM: * 'requires people to act in a manner that is unlikely, because it requires children to observe a strict distinction between 'passive' and 'active' play which the children themselves are unlikely to understand'. (Respondent's written submissions, 11 December 2020) * That educators themselves may have difficulty in maintaining the distinction between passive and active play as they are not clearly defined in the POM. * Whilst educators can encourage children to undertake a type of play in a certain location within the site, this is not a guarantee. * These preceding concerns are compounded by the need for strict compliance to achieve the acoustic outcome predicted by the Applicant. 1. Ms Walker concludes that the POM is not consistent with the tests in Renaldo (in particular questions 2 – 5). She submits that in combination with her submissions in relation to the restriction on the provision of active outdoor play, the Court should conclude that: firstly, the measures proposed to manage the acoustic impact place an unacceptable constraint on the operation of the centre; and secondly, applying the principles in Renaldo it is uncertain the POM will be able to be reliably implemented; and finally, the actual noise generated from the development will be affected by these factors, resulting in a likely non-compliance with the acoustic criterion. She submits that the Respondent's contention that the management measures proposed to manage the acoustic impacts of the proposal will result in unacceptable constraints on the operation of the childcare centre is made out, and the application should be refused.

Findings 1. Based on the evidence and submission, as summarised in the preceding and contained in the various experts oral and written evidence, it is my assessment that the proposed childcare centre warrants refusal. 2. Consistent with my findings at [78] I accept that on a theoretical basis the proposed development meets the acoustic criterion. However, I find that the means of achieving that compliance and the mitigation measures relied on are, on merit, unsatisfactory. 3. In brief it is my view that: 1. firstly, the modelling of the noise likely to be generated by the outdoor play areas, and in particular the modelled scenario, is unlikely to represent the likely actual noise generated and that breaches of the acoustic criteria are likely to occur. 2. secondly, that the POM is unsatisfactory in that it requires people to act in a manner that is unlikely. For example, children and educators need to observe a strict distinction between active and passive play, strict adherence is required to both the numbers of children and their location within the outdoor play area and the POM is required to be complied with strictly for the facility to achieve acoustic compliance. 3. thirdly, the necessity for the provision of a dividing acoustic barrier between OPA1 and OPA2 is at odds with objective of the Regulation to provide outdoor spaces allow children to explore and experience the natural environment given the resultant geometry of the play spaces. 4. Finally, that the provision of outdoor play for children proposed by the development is unsatisfactory. The development application seeks consent for a 44 place childcare centre. From these 44 children a maximum of 8 children can be actively playing outside at any one time, less if those children are in the 3-5 year age bracket. In my view such a significant restriction is at odds with the Regulation which seeks to provide outdoor spaces that allow children to explore and experience the natural environment. 1. I accept and prefer the concerns expressed by Mr Haydon and Ms Walker that the modelled scenario is unlikely to represent the likely actual noise generated. I accept Ms Walker's submissions in this regard as detailed at [62]. 2. I find that the POM and the resulting noise generation is uncertain in that it relies on a consistent understanding of the distinction between 'active' and 'passive' play in acoustic terms. Neither 'active play' nor 'passive play' are defined in the POM. This understanding, and a monitoring of child numbers, is required to be implemented by educators, along with their many other responsibilities. See also [119]. 3. As a result of this uncertainty I am satisfied that a 15 minute noise exceedance is likely to occur, on occasion, by either a group of children of greater numbers playing actively, or children playing actively in the wrong area. Whilst the Applicant relies on the provision of an additional educator to assist in the management of children, and their transition between activities on the timetable, reference to the POM identifies that the resource is not truly directed to these tasks. The POM notes that this additional resource will 'assist with relief during staff lunch breaks, programming time and other general administration work'. (Exhibit 23) 4. Further, it is difficult for the POM to be amended to address noise breach, other than by further restricting active outdoor play of children which is undesirable for the reasons given at [110]. 5. On merit, it is my view that such an acoustic impact is unacceptable, irrespective of the higher density zoning. The factors I have considered in reaching this conclusion is the proximity of the existing residential development adjacent the subject site, the daily duration of the operation of the centre and limited agency of the receivers to address the breach other than by retrospective complaint. 6. I disagree with Dr Smith that the decision of the Court in Tahany Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1008 ('Tahany') is analogous with the current proceedings. By reference to that decision the following facts distinguish the current matter from Tahany: the current proposal does not propose the reuse of an existing building but is rather an entirely new building; Tahany had a capacity of only 30 children and involved three outdoor play area and a simulated play area, in contrast to the proposed development which proposes 44 children and two outdoor play areas; further, Tahany provided opportunity for a greater proportion of children to be able to actively outdoor at any one time and for an overall longer duration than is proposed in the current application. 7. I note that both childcare experts agreed that the timetable in the POM does not provide two hours of active outdoor play for each child. I accept the submission of Dr Smith that this quantum is not a requirement of the Childcare Guideline or the Guideline. However, I am persuaded by the evidence of Ms Shepherd that attendance at long day care would make achievement of the recommended three hours difficult if the maximum provision possible under the timetable whilst the child is at the centre is one hour. 8. I accept the reasoning and submissions of Ms Walker at [101] through [104]. The limitations proposed to achieve acoustic compliance, in my view, result in an unreasonable restricted allocation of numbers of children, the types of play they can engage in, and the duration of that outdoor play. These restrictions, in my assessment, demonstrate that the site is not suitable for the intensity of the proposed use. 9. I am not persuaded by the submissions of Dr Smith that the development is consistent with the planning principle in Renaldo. Given the above findings I do not accept his submission the controls proposed are reasonable, clear and capable of ready enforcement. For example, the AAAC Guidelines Version 3 when discussing the sound power levels of children notes that sound power levels vary widely based on a number of factors, importantly including the activity the children are physically doing and the type of voice (from shout to whisper) (Exhibit 31). Relevantly there is a distinction between being physically active, and being noisy which is not always directly correlated. For example, a child running (active play) can do so quietly or noisily, and the reverse is true. Whilst there may be some correlation between increasing noise and activity in children, the matter is not clarified in the POM or defined in a manner that is suitable for implementation. This distinction was discussed by the childcare experts in their discussion of children playing passively in pretend play (refer to [84] and [85]). There is no guidance proposed in the POM to assist educators with the distinction. 10. I accept the submissions of Ms Walker at [105]-[106] and find that the management measures proposed to manage the acoustic impacts of the proposal will result in unacceptable constraints on the operation of the childcare centre. 11. Finally, I am satisfied that the necessity for the provision of a dividing acoustic barrier between OPA1 and OPA2 is at odds with objective of the Regulation to provide outdoor spaces allow children to explore and experience the natural environment, given the resultant geometry of the play spaces (narrow and long). 12. I accept and prefer Ms Shepherd's evidence in this regard (see [84]). I note that Ms Campbell's evidence was that the outdoor play area was acceptable, it would be improved by the removal of the dividing acoustic barrier between OPA1 and OPA2. On the basis that the dividing barrier hinders freedom of movement of children, their choice of games, and the overall quality of the outdoor space it is, in my view, unacceptable. 13. In my view the evidence supports a finding that the mitigation measures necessary to address the noise generated from the development dictate compromised childcare facilities and services. 14. For these reasons, I find that the reliance on the POM and the internal acoustic barrier as a means of mitigating the acoustic impacts demonstrate that the site is not suitable for the intensity of the proposed use: s 4.15(1)(c) of the EPA Act. 15. Given these findings it is not necessary to detail the evidence, or make findings on, the remaining merit issues in contention between the parties.

Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development application DA 788/2017 for demolition of the existing single storey dwelling, the construction of a two-storey childcare centre with a capacity of 44 children and basement parking for 12 vehicles at 83 Gladstone Street, North Parramatta is refused. 3. The exhibits are returned with the exception of Exhibits H, 12, 23, 38.

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D M Dickson

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: 21 January 2021