The Commissioner upheld the appeal and granted consent for a 50-place childcare centre, finding that a combination of natural and mechanical ventilation satisfies Regulation 110 of the National Regulations and Part 4.4 of the CCPG, following Basevski v City of Ryde Council [2022] NSWLEC 1387. The Court held that s 3.27(1)(b) of the Transport and Infrastructure SEPP rendered inoperative a DCP control seeking to mandate provision for 0-2 year old children, as it constituted a control relating to demonstrated need or demand by reference to age ratios. On the contested acoustic issues, the Court accepted the applicant's expert evidence that operational noise impacts on neighbouring properties were acceptable, including that pre-7am staff vehicle arrivals would not cause unacceptable sleep disturbance, and that the height of acoustic barriers, while exceeding DCP controls, was not so out of character as to warrant refusal.
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