Entrepreneur Enterprises Pty Ltd v Lane Cove Municipal Council

[2023] NSWLEC 1323

Land and Environment Court

New South Wales

Medium Neutral Citation:

Entrepreneur Enterprises Pty Ltd v Lane Cove Municipal Council [2023] NSWLEC 1323

Hearing dates:

8-9 May 2023

Date of orders:

23 June 2023

Decision date:

23 June 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The development application DA24/2022 for an increase in the capacity of the existing child care centre at 30 Landers Road, Lane Cove North, to 88 children, is determined by the grant of consent subject to the conditions in Annexure A.

(3) Exhibits G to N, P and 1 to 6 are returned, and exhibits A to F, O and 7 are retained.

Catchwords:

APPEAL – development application – increase in numbers at a centre based child care facility – acoustic impact – Plan of Management – whether Plan of management is acceptable

Legislation Cited:

Education and Care Services National Regulations 2011, regs 13, 107, 108, 122, 123, 272

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Lane Cove Local Environmental Plan 2009, cl 2.3

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.26

Cases Cited:

Appian CCC Pty Ltd v Burwood Council [2022] NSWLEC 1619

Artmade Architectural Pty Ltd trading as Artmade Architects v Burwood Council [2019] NSWLEC 1648

Brenham Pty Limited v North Sydney Council [2016] NSWLEC 1343

D’Souza v Hornsby Shire Council [2007] NSWLEC 838

Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315

Texts Cited:

Association of Australasian Acoustical Consultants, Guideline for Child Care Centre Acoustic Assessment (Version 3.0), September 2020

NSW Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

Lane Cove Development Control Plan 2010

Category:

Principal judgment

Parties:

Entrepreneur Enterprises Pty Ltd (Applicant)
Lane Cove Municipal Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
S Berveling (Respondent)

Solicitors:
Shaw Reynolds Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/167608

Publication restriction:

Nil

Judgment

1. COMMISSIONER: A centre based child care centre is currently operating at 30 Landers Road, Lane Cove North, for up to 56 children. Entrepreneur Enterprises Pty Ltd (Entrepreneur) seeks development consent to expand the operation of the centre to 88 children. It lodged a development application on 3 March 2022 seeking the same. Following the expiry of the period after which a development application is deemed to be refused, Entrepreneur lodged this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The current operation allows up to 56 children to attend the centre, with no restriction on the numbers of children in the outdoor play areas. The number of children include 28 children in the 0-2 age group, 10 children in the 2-3 age group and 18 children in the 3-5 age group. On-site car parking is provided in the basement, with 19 car parking spaces including an accessible car space, 11 of which are allocated for the drop off/pick up. There are five outdoor play areas, with no restrictions on the number of children that can use each outdoor play area or on the times within which they can be used.

3. The proposed development is for the increase in the number of children from 56 to 88, the carrying out of works at the entrance to the basement to improve the vehicular access to the car park, and the carrying out of works in the outdoor play areas to create a total of six outdoor play areas and an additional enclosed play area on a balcony that is not included in the outdoor play area calculations. Of the six outdoor play areas, four are on the ground floor, one is on the first floor balcony, and one is on the second floor balcony. One of the four ground floor areas is proposed to be used for passive play only. The proposed development, as amended, includes a Plan of Management dated 5 May 2023 (proposed POM) that sets out, in an operational schedule, the limits on the hours of use of the outdoor play areas and on the numbers of children that can be using those areas at any given time. In addition, physical noise controls are proposed to be implemented in connection with the increased number of children, including noise barriers, acoustic treatment of various walls, and the roll down of weather blinds to 50% for certain openings. The limits on hours and numbers in outdoor areas, together with the physical noise controls for those areas, are informed by an acoustical assessment that included a calculation of the maximum number of children that can be accommodated in each outdoor area before the applicable acoustic criteria are exceeded at given residential receivers. The operational schedule proposes groupings in the outdoor areas that are lower than that nominated for acoustic compliance. Those groupings therefore ensure that the increased numbers at the child care centre will not cause an unacceptable acoustic impact.

4. The Council remains opposed to the grant of development consent. It contends that the proposed POM is not acceptable as it is not capable of being complied with, which will then lead to an unacceptable acoustic impact on the neighbouring properties that will affect their amenity. For that reason, the Council contends that the proposed intensification of the child care centre is not suitable for the site and is contrary to the public interest. Further, the Council contends that the outdoor play areas do not have adequate amenity. If development consent is granted, the Council seeks the imposition of a trial period of 12 months to allow the acoustic impact of the increased number of children to be assessed prior to that increase being allowed on an ongoing basis.

5. For the reasons set out below, I consider that the amenity of the outdoor play areas is acceptable. I also find that the proposed POM is acceptable and accept the agreed evidence of the experts that the operational schedule for the use of the outdoor play areas is achievable and capable of compliance. As such, the increased number of children at the centre will not have an unacceptable acoustic impact or affect the amenity of the neighbouring properties. For those reasons, I have determined to grant development consent subject to conditions. I have also determined that, contrary to the Council’s position, there is no utility in imposing a trial period.

Site and the locality

6. The site is located on the corner of Epping Road, Landers Road and Coxs Lane, with a total area of 875.1m², a 23.65m frontage to Landers Road to the north, an 18.28m frontage to Epping Road to the south and a 42m frontage to Coxs Lane to the east. The site is presently occupied by the childcare centre, which is a 3-storey building over basement parking with vehicular access from Coxs Lane.

7. The locality along Epping Road is characterised by high density residential development in the form of residential flat buildings. On the northern side of Landers Road, however, the locality is characterised by single storey dwelling houses.

The planning framework

8. Section 4.15(1) of the EPA Act requires that, in considering a development application, the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

9. The site is situated within Zone R4 High Density Residential pursuant to the provisions of the Lane Cove Local Environmental Plan 2009 (LCLEP). Development for the purposes of “centre-based childcare facilities” is permitted with consent in the zone. Clause 2.3 of the LCLEP requires that the Court, in exercising the functions of the consent authority, have regard to the objectives of the zone when determining a development application. The objectives of the zone are as follows:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for a high concentration of housing with good access to transport, services and facilities.

• To ensure that the existing amenity of residences in the neighbourhood is respected.

• To avoid the isolation of sites resulting from site amalgamation.

• To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

10. Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) concerns educational establishments and childcare facilities and applies to the proposed development. Section 3.23 of the SEPP TI requires consideration of the Child Care Planning Guideline (CCPG), as follows:

3.23 Centre-based child care facility—matters for consideration by consent authorities

Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development.

11. The CCPG contains a number of design quality principles in Part 2, a number of considerations and design guidelines in Part 3, and how to apply the national regulations to development proposals in Part 4. The design quality principles include ensuring that the design responds and contributes to its context (principle 1), that it achieves a scale, bulk and height appropriate to the existing or desired future character (principle 2), that it achieves sustainable design (principle 4), that the landscape and buildings are integrated to result in attractive development (principle 5), and that it optimises the use of the built and natural environment for safe learning and play (principle 7).

12. Part 4.9 of the CCPG concerns the outdoor space requirements. It sets out the following requirements for outdoor space that is covered, such as a verandah:

“Verandahs (covered outdoor space) as outdoor space

Where a covered space such as a verandah is to be included in outdoor space it should:

• be open on at least one third of its perimeter

• have a clear height of 2.1 metres

• have a wall height of less than 1.4 metres where a wall with an opening forms the verandah perimeter

• have adequate flooring and roofing

• be designed to provide adequate protection from the elements (refer to Figure 8).”

13. In addition, Part 4.11 of the CCPG concerns the requirements for sun and shade, including natural shade by trees. It includes the following:

“Outdoor play areas should:

• have a minimum of 2 hours of solar access between 8.00am and 4.00pm during winter months, for at least 30% (or 2.1m2) of the 7.0m² of outdoor space per child required.

• adequate shade for outdoor play areas is to be provided in the form of natural shade such as trees or built shade structures giving protection from ultraviolet radiation to at least 30 per cent of the outdoor play area

• have evenly distributed shade structures over different activity spaces.”

14. Section 3.26 of the SEPP TI specifies non-discretionary development standards that, if met, preclude more onerous standards from being used to refuse the development. It sets out:

3.26 Centre-based child care facility—non-discretionary development standards

(1) The object of this section is to identify development standards for particular matters relating to a centre-based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters.

(2) The following are non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of a centre-based child care facility—

(a) location—the development may be located at any distance from an existing or proposed early education and care facility,

(b) indoor or outdoor space

(i) for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies—the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or

(ii) for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies—the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause,

(c) site area and site dimensions—the development may be located on a site of any size and have any length of street frontage or any allotment depth,

(d) colour of building materials or shade structures—the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area.

(3) To remove doubt, this section does not prevent a consent authority from—

(a) refusing a development application in relation to a matter not specified in subsection (2), or

(b) granting development consent even though any standard specified in subsection (2) is not complied with.

15. The parties agree that the proposed development meets the requirements for the unencumbered area of indoor space and the unencumbered area of outdoor space in the Education and Care Services National Regulations 2011 (National Regulations), which are 3.25m² of indoor space per child and 7m² of outdoor space per child. This means that the concurrence of the regulatory authority is not required, as s 3.22 of the SEPP TI requires concurrence only if those area requirements are not met. This is confirmed by a record of the decision by the Department of Education that the requirements for concurrence are not met as the plans do not “reflect an inability to meet space requirements under r 107 or r 108 for the number of children identified” (Ex G).

16. The National Regulations are enforced by the Regulatory Authority, who issues service approvals for education and care services, including centre based child care facilities. The National Regulations are not required by the EPA Act, the SEPP TI or any other planning instrument to be considered when assessing a development application for a centre based child care facility. Nevertheless, the Council says that they should be considered as a matter of public interest. I accept that in considering a development application, it is relevant to consider whether the proposed development can be used for the purpose sought in light of the applicable regulatory regime. However, this is not necessarily determinative, particularly where there is scope for the regulatory authority to consider exemptions or for the operator to carry out changes to its operation within the scope of a development consent in order to comply (such as increasing the number of educators or decreasing the number of children notwithstanding having development consent for a greater number).

17. Regulation 123 of the National Regulations sets out educator to child ratios at centre-based services. By virtue of regs 123 and 272, the “minimum number of educators required to educate and care for children at a centre-based service” is 1 educator to 4 children for children under 2 years, 1 educator to 5 children for children between 2 and 3 years, and 1 educator to 10 children for children between 3 and 5 years. In calculating whether the ratios are being complied with regs 122 and 13 are relevant, as follows:

122 Educators must be working directly with children to be included in ratios

(1) An educator cannot be included in calculating the educator to child ratio of a centre-based service unless the educator is working directly with children at the service.

(2) In this regulation, a reference to an educator includes an early childhood teacher or a suitably qualified person who is counted as an educator under regulation 123(3).

13 Meaning of working directly with children

For the purposes of these Regulations a person is working directly with children at a given time if at that time the person –

(a) is physically present with the children; and

(b) is directly engaged in providing education and care to the children.

18. The Lane Cove Development Control Plan 2010 (LCDCP) is required by s 4.15(1) of the EPA Act to be considered in determining the development application, and Part I concerns child care centres. Clause I.1 in Part I of LCDCP provide the following relevant objectives in relation to child care centres:

“I.1 General Information

…

1.6 Objectives of this section of the DCP

…

3. To ensure that sites containing Child Care Centres are compatible with the environment in which they are situated, particularly in terms of visual character, landscaping etc.

4. To ensure that potential adverse impacts from Child Care Centres on surrounding residential areas, such as those created by noise, traffic generation and on-street parking, are minimized.”

19. Consistent with this objective, Part I.10 provides performance criteria concerning privacy and noise minimisation as follows:

“b) The development application should demonstrate that privacy and noise minimisation for neighbouring properties have been considered in designing the centre.”

20. In addition, Part I.3, at clause 3.3, provides objectives and performance criteria for outdoor play areas, as follows:

“The objectives for outdoor play areas are:

1. To provide a stimulating environment for children.

2. To provide a well designed outdoor play area giving consideration to visual supervision throughout the site, sun and shade and ground surfaces.

3. To provide adequate space to meet the minimum NSW licensing standards for children’s outdoor play areas.

Performance Criteria / Development control

a) A centre must provide at least a minimum of 7 square metres of unencumbered outdoor space for each licensed child care place.

b) Outdoor areas should if possible be located to the north or north east of a building. The exposure to external noise, pollution and wind should be minimised.

c) The outdoor play space must be adequately shaded in accordance with guidelines published by the New South Wales Cancer Council under the title Shade for Child Care Services. Fifty percent of all outdoor open spaces should be shaded during the hours of 10am – 3pm. Shading may be provided by trees, awnings, or similar structures.

d) In calculating outdoor play space, areas where children cannot be readily supervised such as areas used for car parking, storage sheds, garden beds, hedges, side boundary setbacks or other areas unsuitable for play are not to be included.

e) The design of the outdoor play space should allow at least half the area to be unencumbered and available for free vigorous play.

f) In Child Care Centres located in the commercial areas, the provision of outdoor space may be in the form of podium levels and rooftops if designed in accordance with the Building Code of Australia/ safety standards. Special attention must be given to reduce or minimise noise, pollution and wind.

…

i) Visual features, plants and climbing equipment must be provided to create an interesting and stimulating experience for the children.

j) Outdoor areas should ideally include a variety of surfaces such as soft-fall, grass, sand, hard paving and mounding with at least 30% natural planting (including opportunity for deep planting).”

21. The Association of Australasian Acoustical Consultants has produced and published a Guideline for Child Care Centre Acoustic Assessment, Version 3.0 (AAC Guideline), which is an industry accepted guideline for the assessment of the noise generated by child care centres. The AAC Guideline is not required by the EPA Act, the SEPP TI or any other planning instrument to be considered when assessing a development application for a centre based child care facility, however it is the industry accepted approach to determining whether a child care centre will have an acceptable acoustic impact.

The objector evidence

22. The development application was notified by the Council between 3 and 19 March 2022, and the amended development application that is now before the Court was notified between 27 January and 11 February 2023. Written submissions were received by the Council on both occasions. The issues raised in the written submissions include the following:

• Traffic congestion on Landers Road and Coxs Lane;

• Illegal parking and parents not parking in the basement;

• Acoustic impacts;

• Pedestrian safety; and

• Unsafe driver behaviour.

23. The acoustic impacts of the proposed increase in the children are considered further below. The remaining issues raised by the objectors do not warrant refusal of the development application, and the changes to the basement entrance will facilitate increased use of the basement car parking by parents.

The expert evidence

Town planning and child care expert evidence

24. Expert evidence on the town planning issues was given in a joint report by Mr Jeremy Swan, a town planner engaged by Entrepreneur and Mr Greg Samardzic, a town planner in the employ of the Council. They also conferred with the child care experts in a separate joint report concerning the proposed POM.

25. Expert evidence on the issues concerning the operation of the child care centre and its amenity was given by Ms Lynda Campbell, a child care and education consultant engaged by Entrepreneur and Ms Wendy Shepherd, a child care and education consultant engaged by the Council. Their evidence was given in a joint report, a second joint report with the town planners, and they both gave evidence in cross-examination. Ms Campbell and Ms Shepherd both agree on changes to the outdoor play areas to increase the natural elements in each area, which will provide more flexibility for a variety of experiences that facilitate the development of cognitive and physical skills, opportunities for social interaction and appreciation of the natural environment. Those agreed changes have been reflected in the agreed conditions of consent.

26. Ms Shepherd and Ms Campbell, in the joint report with the town planners, agree on a revised timetable that would provide ease of implementation, supervision and best outcomes for children, which is Attachment F to the joint report, is referred to as the operational schedule and is now contained in the proposed POM. That operational schedule is set out further below. There is no evidence from either the town planners or the child care experts that this operational schedule is not capable of being complied with, although they give evidence concerning the ability to comply with a schedule in an earlier iteration of the Plan of Management.

27. However, Ms Shepherd maintains an issue concerning the amenity of the outdoor play areas in circumstances where the blinds are required to be at 50% open for acoustic attenuation. She opines that the closure of blinds obscures views of the outside and reduces ventilation.

Acoustic expert evidence

28. In support of the proposed development, an acoustical assessment was prepared by The Acoustic Group dated 16 March 2023 (TAG report). Expert evidence on the acoustic impact was given in a joint report, and in court, by Mr Steven Cooper, an acoustic engineer engaged by Entrepreneur, and Mr Stephen Gauld, an acoustic engineer engaged by the respondent.

29. Mr Cooper and Mr Gauld agree on the appropriate acoustic criteria, and Mr Cooper calculates the cumulative acoustic impact of the play in the outdoor areas depending on the numbers in each area. As a result of those calculations, Mr Cooper and Mr Gauld agree that if the child care centre is operated in accordance with the operational schedule agreed to by Ms Shepherd and Ms Campbell, the acoustic impact on the residential properties will be acceptable.

30. In addition, Mr Cooper’s evidence is that the operational schedule is a conservative approach given that the number of children in certain play areas is lower than that which was used to calculate the cumulative acoustic impact. Specifically, his evidence includes the following (Ex 3):

“68. Cooper notes that the POM dated 16 March 2023 did not use all of the possible acoustic permutations derived for compliance with the noise targets. The children groupings used in the POM were in some areas lower that nominated for acoustic compliance and as a result of joint conferencing of the child care experts has been further reduced.

69. Cooper says, for example from Appendix F of the Joint report of the Planners and the Child Care Experts:

• GF1 now has a maximum of 8 children in active play whereas Table 6 of the TAG report had 15 children in scenario 6.

• GF2 now has a maximum of 8 children in passive play whereas Table 6 of the TAG report had 10 children in Scenarios 2, 3 and 7.

• FF1 has a maximum of 18 children in active play under Family Grouping, a maximum of 6 children in active play for the older group and 10 children in active play for the 2-3 year olds, whereas Table 7 of the TAG report had 18 children active as a single entity and 12 children active when SF2 was in use (scenarios 1 and 5).”

31. Indeed, both Mr Cooper and Mr Gauld agree that the operational schedule allows headroom for acoustic compliance, as follows:

“the POM as presented utilised lower numbers of children than presented in the Acoustical Assessment to provide a further headroom for acoustic compliance that has been further modified by the Child Care Experts as set out in Appendix F of the Joint Report of the Planners and the Child Care Experts” (Ex 3)

The proposed timetable

32. The operational schedule is the agreed timetable for outdoor play for all groups. It is as follows:

33. In the proposed POM, this operational schedule is supported by timetables for each of the age groups within the child care centre, which are consistent with the operational schedule.

34. The operational schedule will be supported by signage in each of the play areas indicating the maximum number of children permitted in that area at specified times of day.

35. As set out above, the child care experts Ms Campbell and Ms Shepherd agree that the operational schedule provides ease of implementation, supervision and best outcomes for children. They agree that the operational schedule has taken a conservative approach as some of the children would engage in passive activities for some of the outdoor play time rather than being active, in circumstances where the acoustic impact was measured on active play.

36. Similarly, as indicated above in the summary of the acoustic evidence, Mr Gauld and Mr Cooper agree that this schedule, as presented, utilises lower numbers of children than presented in the Acoustical Assessment to provide further headroom for acoustic compliance.

The amenity of the outdoor play areas

37. The Council contends that the outdoor space on the first floor and the second floor do not have adequate amenity and will not allow children to explore and experience the natural environment. This is supported by the evidence of Ms Shepherd, who considers that the areas will not allow views to trees or adequate ventilation. Ms Shepherd otherwise agrees that the play areas on the ground floor have adequate amenity.

38. The evidence of Ms Shepherd concerning the outdoor space on the first and second floors is not consistent with what was readily observable onsite. The trees in the immediate vicinity and their canopies were readily appreciated when standing in the outdoor play areas and the movement of the wind through those trees formed part of the environment of those play areas. I accept the evidence of Ms Campbell that there is an ability to see the sky and outdoor trees and buildings when in those play areas, even with the blinds at 50%.

39. Further, Mr Swan gave evidence at the site inspection concerning the measures by which the natural ventilation could be assessed. His evidence is that the best measure of natural ventilation would be by the use of the NSW Department of Planning, Apartment Design Guide, July 2015, which sets design guidance for achieving natural ventilation as the “area of unobstructed window openings should be equal to at least 5% of the floor area served”. Each of the play areas on the first floor and the second floor meet this numerical guide, even with the blinds lowered as required for acoustic attenuation, with openings that equal around 9.4% and 15.8% of the floor area respectively.

40. In addition, the outdoor space on both levels will be subject to changes that are agreed by Ms Campbell and Ms Shepherd. For the first floor and second floor outdoor play area they agree to the following changes (Ex 4):

“First floor play area: Remove planter boxes. Remove bridge or replace with dry creek bed and areas of mulch for digging.

To create an additional space beside 2 – 3 year old room with the enclosing of balcony with clear window panels, or louvres on first floor and removal of the raised/seated area to create a play space with soft fall for flexible climbing equipment.

Second floor play area: Remove large piece of fixed equipment and replace with moveable/flexible/challenging climbing equipment and mulch areas for digging and a well designed deep sandpit and sweep-in edge.”

41. These changes are incorporated in the conditions of consent that are agreed between the parties. Ms Shepherd and Ms Campbell agree that these changes will provide more “flexibility for a variety of experiences that facilitate the development of cognitive and physical skills, provide opportunities for social interaction and appreciation of the natural environment” and will “improve outdoor learning opportunities, socialisation and recreation”.

42. I consider that each of these outdoor spaces complies with the requirements in the CCPG in Part 4.9 concerning covered outdoor space such as verandahs, as they are each open on at least one third of their perimeter, they each have a ceiling height of at least 2.1m, the wall height is either less than or around 1.4m where the balustrade is required for the opening, they have adequate flooring and roofing and protection from the elements by the use of the blinds for full enclosure if required.

43. Further, these outdoor play areas also comply with the requirements in Part I Section 3.3 of the LCDCP. They are located to the north of the building and away from the noise from Epping Road, they are adequately shaded, and once modified they will allow for at least half of the area to be unencumbered and available for free vigorous play, will include visual features and climbing equipment, as well as a variety of surfaces for play. I accept the submission of Entrepreneur that, in circumstances where the proposed development complies with the LCDCP concerning the outdoor play areas, s 4.15(3A) prevents more onerous standards from being applied.

44. For the above reasons, I consider that the outdoor play areas on the first and second floors have adequate amenity for outdoor play and allow the children to explore and experience the natural environment.

The Plan of Management

45. The Council contends that the operational schedule and daily routines set out in the proposed POM are unreasonably onerous and unlikely to be successfully implemented. In particular, the Council submits that the requisite ratio of staff to children cannot be maintained by adherence to the operational schedule, such that the schedule will not be adhered to. The Council therefore says that the proposed POM does not meet the requirements set out in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 (Renaldo), and the development application should be refused on that basis.

46. The planning principle concerning Plans of Management in Renaldo is as follows:

“Often, and is the case in this application, the contents of a Management Plan are critical to the decision of whether a development application should be approved or refused.

54 In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered:

1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?

2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?

3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?

4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?

5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?

6. Is the Management Plan to be enforced as a condition of consent?

7. Does the Management Plan contain complaint management procedures?

8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?”

47. The Council submits that the proposed POM fails these requirements, and is therefore inappropriate for the centre.

48. Specifically, the Council says that the requirement to maintain the ratios in regs 123 and 272 of the National Regulations means that the operational schedule is not capable of being complied with. The Council submits that the ratios are required to be maintained in each individual play area, such that the educator to child ratio is required to be complied with in an outdoor play area when it is occupied, as well as in the adjacent indoor or outdoor play area. The Council makes this submission on the basis that reg 122 of the National Regulation states that an educator cannot be included in the ratio unless they are “working directly with children at the service”, and “working directly with children” requires them to be physically present and directly engaged with the children.

49. For example, the Council says that in a room of children aged 2 to 3 years, if six children are outdoors and four are in the adjacent indoor play area, then 2 educators are required outdoors and one educator indoors, notwithstanding that the ratio for all 10 children would require only 2 educators.

50. Based on the ratio requirements in regs 123 and 272 and the Council’s submission that they are required to be met in each play space, Dr Berveling, counsel for the Council, calculated that there would be shortfall of up to 3 educators that would prevent the operation of the child care centre in accordance with the operational schedule in the proposed POM.

51. The Council’s position is supported by the evidence of Ms Shepherd, who expressed concern in cross-examination concerning compliance with the ratios by the operation of the centre in accordance with the operational schedule. She expressed an opinion that ratios should be maintained in the manner articulated by the Council in its submissions. However, this concern was not articulated in her evidence in chief.

52. In circumstances where the Council says that the operational schedule cannot be maintained due to the need to comply with the educator to child ratios, its position is that the proposed POM does not meet the requirements in Renaldo. The Council submits, therefore, that the Plan of Management cannot be relied upon to manage the acoustic impact and the development application should be refused on that basis.

The applicant’s position on the Plan of Management

53. Entrepreneur instead submits that the Plan of Management does meet the questions posed in Renaldo, and the ratio requirements of the National Regulations do not apply in the manner advanced by the Council. Further, Entrepreneur submits that the operational schedule in the Plan of Management is sufficiently conservative such that there would be an acceptable acoustic impact even if there was not absolute compliance.

54. In relation to the ratio requirements, Entrepreneur submits that the clear wording of reg 123 of the National Regulations requires the ratios to be maintained “at a centre-based service” rather than within each room of the service. Regulation 122, concerning who can be counted in the ratio calculation, and reg 13, concerning what it means to work directly with children, are relevant to determining whether there is compliance at the centre. Entrepreneur submits that the Council’s interpretation would require additional words to be added in regs 122 or 123 to compel compliance with ratios within each individual play area, which is contrary to principles of statutory interpretation. Entrepreneur’s position is therefore that the operational schedule can be readily complied with, without there being a need for additional educators.

55. With respect to the need for compliance with the proposed POM to achieve an acceptable acoustic impact, Entrepreneur’s position is that an impact as a result of a non-compliance would require significant departure from the operational schedule such that strict compliance is not necessary. It submits that it would require there to be a significant number of children outside in breach of the proposed POM, over a 15min period, as an extra 2 children when only 18 are permitted would only produce a 0.47dB(A) noise increase, and a 1-2dB(A) increase in noise is accepted by the Noise Policy for Industry as being indiscernible by the average listener. Entrepreneur also points out that doubling the children outside in the first floor outdoor area from 18 to 36 would only have a 3dB(A) increase in noise level, in accordance with the AAC Guideline (Ex 2 Tab 19 p 9), which would cause an exceedance of the acoustic criteria at only one receiver location that is adjacent to a footpath. Entrepreneur therefore says that even if there is a minor breach of the operational schedule in the proposed POM, the acoustic impact remains acceptable.

56. Entrepreneur points out that the Court, in regularly considering development applications for centre based child care facilities, has readily accepted that the noise generated by such facilities can be ameliorated through acoustic attenuation measures and through plans of management that limit the number of children outside and the types of play that they are engaged in (see, for example, D’Souza v Hornsby Shire Council [2007] NSWLEC 838, Brenham Pty Limited v North Sydney Council [2016] NSWLEC 1343 and Artmade Architectural Pty Ltd trading as Artmade Architects v Burwood Council [2019] NSWLEC 1648). Entrepreneur submits that this approach is consistent with the recommendation in the AAC Guideline that 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” (Ex 2 Tab 19 cl 6.6). It submits that this also achieves what is required by the LCDCP, which requires demonstrating that “noise minimisation for neighbouring properties have been considered”.

57. In these circumstances, Entrepreneur submits that the proposed POM and the conditions of consent comply with the requirements of Renaldo. It says that there is nothing unreasonable about the controls on the operation of the centre, particularly where it is managed and run by adult educators. Entrepreneur submits that the proposed POM is clear on what the maximum number of children is for each area, is readily enforceable and compliance is required by the proposed conditions of consent, provides a suitable daily program that can be utilised whilst maintaining the restrictions, and includes complaints handling, a procedure for being updated and will be publicly available.

The Plan of Management is acceptable and capable of compliance

58. Whilst the planning principle in Renaldo provides a useful framework for the consideration of plans of management, compliance with each element of the planning principle is not some form of mandatory test for the grant of development consent. As described on the Land and Environment Court website, a planning principle is “a statement of a desirable outcome from a chain of reasoning aimed at reaching, or a list of appropriate matters to be considered in making, a planning decision” (emphasis added). In the circumstances of the proposed development, the proposed POM is acceptable for the following reasons.

58. Firstly, the restrictions on each of the outdoor play areas are sufficiently clear. The operational schedule clearly sets out how many children are permitted in each outdoor play area in each time period. This will be reinforced by the signage to be used in each outdoor play area, which is a readily available in situ visual infographic for educators of the operational schedule that applies to the specific space that they are in.

59. Secondly, child care centres are a structured environment in which it is common place for each age group to operate on a timetable that is managed by educators, where the children have a close interaction with their educators. As said by Commissioner Horton in Appian CCC Pty Ltd v Burwood Council [2022] NSWLEC 1619 at [59]:

“[t]he care and management of children is a highly structured undertaking, requiring pre-planning of specific tasks at certain timeframes across a day. This pre-planning, and the close interaction between educator and children engaged in these routines, often in an environment that is familiar to the child, lends itself to compliance, in my view, with the program set out in the Plan of Management.”

61. This is true also of the child care centre the subject of this development application, and the operational schedule in the proposed POM. The proposed POM is readily able to be complied with given the structured environment of the child care centre and the close interaction between educator and children.

62. Thirdly, Ms Shepherd and Ms Campbell agree that the operational schedule (which is taken from Attachment F to the joint report) provides ease of implementation, supervision and best outcomes for children. There is no evidence from either the town planners or the child care experts that this operational schedule is not capable of being complied with. The only concern raised by Ms Shepherd concerns compliance with educator to child ratios, which I consider further below.

63. Fourthly, the structured program allows for active outdoor play in all areas except for one of the outdoor play areas on the ground floor known as GF2, which is to be used for passive play. This means that there is no mix of active and passive play in the same areas. Further, the design of GF2 supports its use for passive play by the use of a large sandpit, and the passive play activities in GF2 are clearly outlined in the proposed POM.

64. Fifthly, the operational schedule allows sufficient headroom for compliance with the acoustic criteria. The acoustic engineers agree that compliance with the operational schedule will ensure that there is no adverse acoustic impact. I accept Mr Cooper’s evidence that the operational schedule is a conservative approach given that the number of children in the play areas is lower than that which was used to calculate the cumulative acoustic impact, and I accept Entrepreneur’s position that an impact as a result of a non-compliance would therefore require significant departure from the operational schedule. It is clear, therefore, that absolute compliance with the proposed POM and the operational schedule is not strictly necessary to achieve an acceptable acoustic outcome, and the momentary non-compliances that may occur will not have an unacceptable impact.

65. Further, I do not accept the Council’s position that compliance with the operational schedule is not possible due to the requirement to maintain the ratios required by regs 123 and 272 of the National Regulations. The Council’s interpretation of the words of these regulations goes beyond their plain meaning. Fundamentally, there are two requirements arising from the clauses relied upon: the first is that the centre-based service has the minimum number of educators required based on the ratio calculation (regs 123 and 272); and the second is that, to be included in that number, the educators must be “working directly with children at the service” (reg 122). The use of the words “centre-based service” in reg 123 and “at the service” in reg 122 refers to the whole of the centre. There is nothing in those clauses or in reg 13 to suggest that the minimum number of educators is required to be met within each defined space within a centre. Therefore, in the example given by the Council where there are six children outdoors and four in the adjacent indoor play area, compliance with the ratio of one educator for five children would be achieved by one educator inside and one educator outside, as that meets the ratio requirement for two educators, and both are working directly with children at the service. Even if I am wrong on this interpretation of the National Regulations, and additional educators will be required to meet the educator to child ratio, there is nothing stopping the centre from engaging additional educators to achieve compliance with both the regulations and the operational schedule in the proposed POM. Therefore, even on the Council’s case (which I do not accept), the requirement to maintain the ratios required by regs 123 and 272 of the National Regulations does not actually prevent compliance with the proposed POM, instead it simply means additional educators would be required.

66. Finally, the proposed POM will be enforced as a condition of consent, and contains procedures for complaints management and for updating the plan of management in response to complaints or quality improvement.

67. For those reasons, I find that the proposed POM and the operational schedule is acceptable and capable of compliance, and will ensure that the acoustic impact of the increased child numbers will be effectively managed to remain acceptable. As a result, the proposed development meets the performance criteria in Part I.10 of the LCDCP concerning noise minimisation and the objective of the zone to ensure that “the existing amenity of residences in the neighbourhood is respected”.

Is a trial period required?

68. The Council says that the operation of the child care centre with the increased numbers, if permitted, should be subject to a 12 month trial period. It submits that where there could be an acoustic impact arising from non-compliance with the operational schedule, the increase in children should be subject to a trial period to ensure that the operational schedule can be complied with and there is no unacceptable acoustic impact.

69. Contrary to the Council’s position, a trial period in the circumstances of this case will have no utility. The potential acoustic impact identified by the Council as forming the basis for monitoring during a trial period relates to the impact from the numbers of children outside. At present, 56 children can attend the centre, with no restriction on the numbers of children in the outdoor play areas. The proposed development, for an increase to 88 children, will have a maximum of 46 in the outdoor play areas spread across the different outdoor play areas. The difference in the overall numbers that is sought by the proposed development results in a different number of children inside, with a reduction of children outside. Accordingly, there is no increase in the source of the noise emission that occurs during the trial period proposed by the Council, rendering a trial period nugatory.

70. In addition, I have found above that the proposed POM and the operational schedule is acceptable and capable of compliance, and the acoustic engineering experts agree that compliance will ensure that the acoustic impact is acceptable.

71. I therefore consider it unreasonable to impose a trial period given that acoustic impacts of the proposed development are acceptable, and in circumstances where the source of the noise emission is decreased during the suggested trial period.

The appropriate outcome

72. As set out above, the amenity of the outdoor play areas is acceptable and the play areas are designed to allow children to explore and experience the natural environment. The proposed POM is appropriate and the timetable for the use of the outdoor play areas is achievable and capable of compliance. I have therefore found that the increased number of children at the centre will not have an unacceptable acoustic impact or affect the amenity of the neighbouring properties. Accordingly, each of the contentions raised by the Council must fail. The site is suitable for the proposed increase in the number of children, its operation with the increased children is consistent with the objective of the zone to ensure that the existing amenity of residences is respected, and the increase in capacity is not contrary to the public interest.

73. It is therefore appropriate for development consent to be granted subject to the conditions of consent that are agreed, excluding the Council’s proposed trial period.

74. The Court orders that:

1. The appeal is upheld.

2. The development application DA24/2022 for an increase in the capacity of the existing child care centre at 30 Landers Road, Lane Cove North, to 88 children, is determined by the grant of consent subject to the conditions in Annexure A.

3. Exhibits G to N, P and 1 to 6 are returned, and exhibits A to F, O and 7 are retained.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 23 June 2023