Hookey v Wyong Shire Council
[2008] NSWLEC 1179
•16 May 2008
Land and Environment Court
of New South Wales
CITATION: Hookey v Wyong Shire Council [2008] NSWLEC 1179 PARTIES: APPLICANT
RESPONDENT
Scott Gregory Hookey
Wyong Shire CouncilFILE NUMBER(S): 10057 of 2008 and 10058 of 2008 CORAM: Bly C KEY ISSUES: Development Application :- child-care centres, before and after-school care, car parking, facilities for children LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Childrens Services Regulations 2004DATES OF HEARING: 01/04/2008, 02/04/2008, 03/04/2008-09/04/2008, 10/04/2008 and 11/04/2008
DATE OF JUDGMENT:
16 May 2008LEGAL REPRESENTATIVES: APPLICANT
Ms A Pearmon, barrister
Instructed by Frazer Clancy LawyersRESPONDENT
Mr J. Cole, solicitor
of Home Wilkinson Lowry Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
16 May 2008
JUDGMENT10057 of 2008 Scott Gregory Hookey v Wyong Shire
10058 of 2008 Council
1 These appeals involve the following existing child care centres:
- The Kid's Academy Child Care Centre at 82-84 Mataram Road, Warnervale that is licenced for 90 long day care places for preschool children between the ages of 0 and 5 years . This centre has 23 on site car parking spaces.
- The Captain Hook's Child Care Centre at 13-17 Hiawatha Road, Woongarrah that is licenced for 70 long day care places for preschool children between the ages of 0 and 5 years . This centre has 17 on site car parking spaces.
2 The child-care centres operate between 6:30 a.m. and 6:30 p.m. on weekdays with children being dropped off and picked up at various times throughout the day.
3 The applicant seeks approval for the utilisation (in addition to long day care) of the existing facilities within these centres for out of hours school care for primary school aged children, otherwise known as before and after school care as follows:
- Mataram Road Centre - 60 school children (if necessary this could be reduced to 45 children) .
- Hiawatha Road Centre - 30 school children (if necessary this could be reduced to 25 children).
4 In both cases the school children will be dropped off at the centres from 6:30 a.m. on weekdays and picked up before 6:30 p.m. These children will be either transported to and from various primary schools in small buses or in the case of the Mataram Road Centre, will walk to the close by primary school accompanied by a carer. The applicant says that programmes of activities for the schoolchildren are designed to avoid any disruption to the approved operations of the child-care centres. Both of the buildings and their associated car parking areas are to remain essentially unchanged.
Planning controls
5 Both sites are zoned 2(e) Urban Release Area under Wyong Local Environmental Plan 1991 and in this zone child-care centres and educational establishments are permissible with development consent. There was no evidence to show that the schoolchildren would be provided with any education, as distinct from care, and it is thus likely that the proposals are not educational establishments. However, I accept that both proposals can be considered to be child-care centres, provided that the out of hours school care is an ancillary or subservient use rather than the dominant use.
6 Clause 10(3) of the LEP requires that consent must not be granted unless the proposed development is compatible with the objectives of the zone. Relevantly applicable zone objectives provide for uses (other than housing) which are compatible with the residential environment and afford services to residents at a local level and are unlikely to adversely affect residential amenity.
7 The Wyong Development Control Plan 2005, Carparking Development Control Plan No.61 and Development Control Plan No. 62 - Guidelines for Home and Centre Based Child-Care Services relevantly contain provisions dealing with car parking and centre based child-care facilities.
Advertising
8 The two development applications were advertised and no submissions were received during the advertising period. However when the hearing began on-site, the neighbour to the east of the Mataram Road Centre expressed concerns in relation to the close proximity of the garbage storage facility to her home and to the extent to which the centre's staff park their cars in Mataram Road.
9 The respondent contends that the following issues constitute reasons for the refusal of the development applications because the developments:
- Do not provide sufficient on-site parking facilities.
- Do not provide sufficient play areas for the school children.
- Comprise an overdevelopment of their sites and are not in the interests of their clients or the wider community.
10 The respondent also contends that the Hiawatha Road Centre does not provide suitable sanitary facilities for the school children.
Children's Services Regulations 2004
11 For the purposes of the Children's Services Regulations 2004 the two child-care centres are centre based children's services and as a consequence the attendance of schoolchildren at the centres is subject to cl 62 of these regulations.
12 In addition to the above-mentioned contentions the respondent Council submits that cl 62 effectively prohibits the two proposals. Section 39(4) of the Land and Environment Court Act 1979 requires the Court to have regard to these regulations. Clause 62 is as follows:
- 62 Caring for school children at service-centre based or mobile children’s service
(1) The licensee of a centre based or mobile children’s service must ensure that if any school child is provided with education or care by the licensee:
- (a) the access of any pre-school child attending the service to facilities and staff of the service is not diminished, and
(b) any programs provided for pre-school children attending the service are not adversely affected, and
(c) if all the school children attending the service are attending school in kindergarten or Year 1, the total number of school children who are cared for at the premises of the service is not greater than 20% of the number of children specified in the licence for the service, and
(d) if any school children attending the service are attending school other than in kindergarten or Year 1, the total number of school children who are cared for at the premises of the service is not greater than 10% of the number of children specified in the licence for the service.
- (a) the indoor and outdoor areas and amenities used by the children are not used at the same time by any other children attending the service, and
(b) the staff providing the service to the children are not at the same time providing the service to any other children attending the service.
13 The applicant submits that the programs, services, facilities and staff will not be adversely affected or reduced in conformity with subclause (1)(a) and (b). It also submits that the percentage limits in subclause (1)(c) and (d) can, as permitted by subclause (2)(a) and (b) be exceeded, because the areas and amenities are not required to be used concurrently by children and schoolchildren and appropriate staffing will be provided. In support of this approach reference was made to the licences granted by the Department of Community Services for child care services in Factory Road, Regentville. These licences allow a maximum of 90 children to be in attendance at any one time. The additional condition of these licences provides that:
In addition to the number of children as specified in the maximum number of children who may be provided with education or care, pursuant to clause 62(1) or (2), the maximum number of children who ordinarily attend school, who may be present on the premises of the children's service whilst the children's service is being provided, must be no more than 40/60 children at any one time.
14 This additional condition is said by the applicant to permit a number of school children in excess of the 90 children otherwise permitted, consistent with cl 62(1) or (2) of the Regulations. Moreover these licences, including the above-mentioned conditions are indicative of how cl 62 is to be interpreted.
15 The respondent council however submits that these considerations and the licences are irrelevant. Because subclause (3) prevails over subclause (1), this means that the number of children specified in the licence cannot be exceeded by the inclusion of schoolchildren. This must be so, notwithstanding the applicant's reference to other licences issued by the Department. Consequently both proposals are effectively prohibited by cl 62 of the Regulations and the application should be refused on this basis.
16 In my opinion there is no inconsistency between subclauses (1)(c) and (d), (2) and subclause (3). The percentage references in subclauses (1)(c) and (d) comprise percentages of the number of children specified in the licence, and not in addition to the number of children specified in the licence. This is plainly consistent with subclause (3) that does not allow subclause (1) to authorise more children (including school children) than the number specified in the licence for the service. As for the Factory Road licences, a careful reading of the additional conditions reveals a sufficient ambiguity to allow them to be interpreted, consistent with cl 62, as including the 40/60 schoolchildren in the maximum of 90 children otherwise permitted by the licences. Indeed this must be the case as any licence issued by the Department must be consistent with clause 62.
17 Clause 59 of the Regulations allows, in certain circumstances (a matter of urgency) the authorisation of a number of children exceeding the number of children specified in the license for the centre based service. I do not know whether the above conditions to the licences were added as matters of urgency. Other than for business reasons the subject applications are not said to fall within this category.
18 I thus agree with the submissions made on behalf of the respondent council and giving appropriate regard to these regulations I have decided that the appeal should be dismissed on this basis. In case I am wrong but also deal with the following merit considerations.
19 The Car Parking DCP is based on the requirements of the Roads and Traffic Authority's Guide to Traffic Generating Developments. It specifically identifies parking requirements for child care centres (I accept that these requirements can be applied to child care centres that provide care for school children) as follows:
1 space per 4 children in attendance. A drive-in/drive-out drop off arrangement without reversing off the site is encouraged. Temporary parking spaces in the driveway may be considered in the car parking calculation provided they do not impede traffic flow to and from the site.
20 On this basis the Mataram Road Centre with 90 preschool children plus 60 school children (or 90 plus 45) would require 38 car parking spaces (or 34). Similarly, the Hiawatha Road Centre with 70 preschool children plus 30 school children (or 70 plus 25) would require 25 car parking spaces (or 24). These centres have 23 and 17 on-site parking spaces respectively.
21 The Child Care Services DCP is concerned to ensure that traffic associated with child care facilities will not adversely affect the amenity of the area. Like the Car Parking DCP it requires 1 car parking space per 4 children in attendance and a drive-in/drive-out drop off arrangement.
22 According to Mr P McMurray (council's traffic engineer) the requirements of the two development control plans should be imposed, and considering the currently available 23 car parking spaces for the Mataram Road Centre there would be a deficiency of 15 car parking spaces. Taking into account the parking survey carried out on March 2008 that, based on demand, identified a shortfall of 4 car parking spaces, it would be totally unreasonable to waive the additional 15 car parking spaces that are required. This is especially important given the absence of public transport. Council's surveys also reveal that the peak parking demand for these centres is 1 car space per 3 children in the morning and afternoon peak periods. He also rejected suggestions that the necessary number of car parking spaces can be reduced taking into account the staggering of the arrival and departure times. He was similarly concerned in relation to the Hiawatha Road Centre that has a current shortfall of 7 car parking spaces and requires an additional 8 car parking spaces.
23 In response Mr C Hazell (the applicant's traffic engineer) explained that the school children are not on site all day and therefore are not on site when long day care is at peak levels. He rejected the council's surveys because they are based on centres operating in isolation. Instead, a survey undertaken by Traffic Solutions (of the Factory Road centre at Regentville that provides both long day care and before and after school care) revealed a parking demand of 1 car parking space per 6.1 children. On this basis the Mataram Road Centre would have a deficiency of 2 car parking spaces and the Hiawatha Road Centre would not have a parking shortfall. He also considered the RTA's Child Care Centres - Analysis Data, particularly the data for Before/After School Care. His analysis of this data reveals that the car parking demand for before and after-school care is 1 car space per 6.5 children and one car space per 4.9 children for all of the sites surveyed (this includes preschool, long day care and before and after-school care). Taking these matters into account both centres have a satisfactory car parking provision.
24 Mr McMurray also said that as a result of there being insufficient on site car parking for both of the centres, this would result in the use of on street parking and even though on street parking spaces are available this should not be a reason to excuse the deficiency. In reaching this conclusion he took into account that the RTA car parking requirements and those of the car parking DCP already make some allowance for on street parking. Council's surveys indicate that on street car parking spaces are typically utilised all day by centre staff. Council has received complaints regarding such parking (including the neighbour to the west in Mataram Road). He also said that the draft Development Control Plan 2008 - Warnervale Town Centre that provides for the redevelopment of a large area of land between Hiawatha Road (generally opposite the Hiawatha Road Centre) and the main northern railway line should be taken into consideration. As this land is progressively developed, traffic volumes will significantly increase in both Mataram Road and Hiawatha Road. As a consequence the present relative safety of the traffic environment would be affected and that thus excessive reliance on street parking, especially on the west side of Hiawatha Road should be discouraged.
25 In response Mr Hazell emphasised the availability of ample on street parking in the vicinity of both sites and pointed out that the RTA Guidelines contemplate a reduction of off street parking if suitable on street parking is available and subject to there being no adverse impacts on the amenity of the adjacent area. He also pointed out that parking demand associated with dropping off and collecting children occurs over several hours and is not concentrated into a small timeframe such as is the case with schools. Regarding the draft DCP and taking into account the proposed road classifications he did not anticipate any resulting problems associated with on street parking.
26 The above-mentioned rate of 1 car space per 6.1 children (Traffic Solutions survey) would, for a total of 150 children (90 plus 60) at the Mataram Road Centre, require 25 car parking spaces, 2 spaces more than presently available. Alternately for 135 children (90 plus 45) 22 car parking spaces would be required 1 less than is presently available. Similarly, the Hiawatha Road Centre with 100 children (70 plus 30) would require 17 car parking spaces, this number being presently available. For a total of 95 children (70 plus 25) 16 car parking spaces would be required, 1 less than is presently available. Plainly, if 1 car space per 6.1 children were the applicable standard, there would be little concern about the proposals in terms of car parking.
27 The above-mentioned RTA data for Before/After School Care comprises survey information for six centres: Bankstown, Berala, Bondi, Maryland, St Johns Park and Wentworthville. Taking into account the number of children accommodated and the peak parking accumulation for these six centres this produces an average of 1 car space per 6.5 children. Again, if this were the applicable standard, there would be little concern about the proposal in terms of car parking.
28 However, I agree with the respondent Council that the use of this survey and the RTA data in this fashion is not the correct approach and have been persuaded that the resultant standards should not be used. Instead it is appropriate in the circumstances of this case to give significant weight to the provisions of the applicable development control plans.
29 I have reached this conclusion because firstly I do not accept that the Factory Road survey is, by itself sufficient to set aside the provisions of the development control plans to the significant extent required. Notwithstanding that it is a survey of a combined child care and before and after school care centre, it is but one survey of one centre. Second, if the RTA's data for the above-mentioned Before/After School Care centres is to be used to reduce the requirements of the development control plans, it is more appropriate to select and consider those centres that reflect any relevant characteristics of the proposals. Bearing in mind the absence of public transport to the subject sites, the three centres surveyed by the RTA that reflect very high car usage (93% - 87%) are Marylands, St Johns Park and Wentworthville. (The other three centres have car usage percentages of 73% - 40%). These three centres in total accommodate 107 children with a total peak parking accumulation of 23 cars. This equates to an average of 4.65 children per car and provides a better indication of likely traffic generation resulting from the proposed school children that are to be added to the two child-care centres. Moreover, this figure is relatively close to the 4.9 children per car calculated by Mr Hazel utilising all 20 of the RTA's surveyed sites for pre school, long day care and before and after-school care children.
30 Accepting that the existing centres are providing car parking in accordance with their consents the 60 school children proposed for the Mataram Road Centre would require an additional 13 car parking spaces. For 45 school children an additional 10 car parking spaces would be required. For the 30 school children proposed for the Hiawatha Road Centre an additional 6 or 7 car parking spaces would be required. For 25 school children an additional 5 car parking spaces would be required.
31 On this basis I am satisfied that whilst strict compliance with the requirements of the development control plans is not essential, some additional car parking for the additional children in both centres must be provided. In reaching this conclusion I have taken into account the approach of using a limited number of on street parking spaces to accommodate some of the peak demand, notwithstanding that, as a result of the development of the Warnervale Town Centre, traffic volumes in Mataram Road and Hiawatha Road are likely to increase. I also accept that the peak demands for long day care and before and after care are unlikely to coincide.
32 However, given my conclusion that there would be a deficiency of on site parking for both of the centres and that this is likely to create an excessive demand for on street parking resulting in some loss of amenity for surrounding residential areas there will be an incompatibility with the objectives of the residential zone in which they are located. I am also satisfied that this deficiency is likely to result in on site congestion a matter of considerable significance taking into account the safety of children. It would also affect the ability to manoeuvre buses, especially for the Hiawatha Centre.
Conclusions
33 I thus conclude that for reasons involving the failure to comply with the Children's Services Regulations 2004 and the insufficient provision of car parking the appeals should be dismissed and the development applications refused. In the circumstances it is unnecessary for me to deal with the issues involving sufficiency of play areas and sanitary facilities in any detail other than to make the following observations.
34 It seems that with proper management/programming and perhaps some structural modifications, both buildings and play areas are capable of accommodating both preschool children and school children but probably not to the extent proposed. Greater attention to the needs of school children is required as I have difficulty accepting that the needs of the two different groups can be readily accommodated in the same facilities. I also agree with the respondent council that matters such as inclement weather contingencies, appropriate furniture, storage areas and play equipment need to be more carefully considered. As for the provision of toilets for schoolchildren at the Hiawatha Centre I find it difficult to accept that it is appropriate to simply make the staff/adults facilities available.
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- T A Bly
Commissioner of the Court
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