Vella v Penrith City Council

[2019] NSWLEC 1247

Land and Environment Court

New South Wales

Medium Neutral Citation:	Vella v Penrith City Council [2019] NSWLEC 1247
Hearing dates:	2 May 2019
Date of orders:	05 June 2019
Decision date:	05 June 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The orders of the Court are as follows: (1)   The appeal is dismissed. (2)   Development Application 18/0332 to construct a 45 place child care centre, with basement parking at Lot 332 DP 1175094, also known as 68 Cadda Ridge Drive, Caddens is refused. (3)   The exhibits, except for Exhibits 1, 3, A and C, are returned.
Catchwords:	DEVELOPMENT APPLICATION – 45 place child care centre – adequacy of outdoor play space for child development – noise impact
Legislation Cited:	Children (Education and Care Service) National Law (NSW) Education and Care Services National Regulations 2018 Environmental Planning and Assessment Act 1979 Penrith Local Environment Plan 2010 Land and Environment Court Act 1979 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
Texts Cited:	Australian Children’s Education and Care Quality Authority Guide to the National Quality Standard 2017 Child Care Planning Guidelines 2017 Penrith Development Control Plan 2014
Category:	Principal judgment
Parties:	Jesse James Vella (Applicant) Penrith City Council (First Respondent) Department of Education, Early Childhood Education Directorate (Second Respondent)
Representation:	Solicitors: S Kondilios, Hall & Wilcox (Applicant) C Drury, Sparke Helmore (First Respondent) M Peatman, Hunt & Hunt Lawyers (Second Respondent)
File Number(s):	2018/273859
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 18/0332 by Penrith City Council (hereafter the Council) to construct a 45 place child care centre, with basement parking at Lot 332 DP 1175094, also known as 68 Cadda Ridge Drive, Caddens (hereafter the site).

Background

2. The DA was submitted to Council on 5 April 2018, and after notification, four submissions in objection were received, including a petition signed by 49 persons. The issues raised include: traffic and pedestrian safety; and amenity impacts such as noise, solar access and privacy.

3. The applicant subsequently appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

4. As a result, the Land and Environment Court (the Court) ordered a conciliation between the parties, pursuant to s 34(1)(a) of the Land and Environment Court Act 1979 (the Court Act), which commenced as a site view on 15 February 2019.

5. As the parties were unable to reach an agreement, pursuant to s 34(4) of the Court Act, the conciliation was terminated and the hearing of the appeal was set down by request of the parties before myself as presiding Commissioner of the conciliation. The parties agreed to rely on observations made onsite and expert evidence from the conciliation.

6. Prior to the hearing, the DA was the subject of numerous discussions between the experts of the applicant and first respondent, which resulted in amendments to the DA plans and information.

7. The plans supporting this DA were amended on 11 April 2019 with leave granted by the Court. After further notification, three submissions from residents in objection (including the same as previously) were received. The issues remained the same. These objectors also spoke onsite at the start of the conciliation and their written objections are tendered in evidence in Exhibit 1.

8. On 16 April 2019, the Court granted the request of the Department of Education, Early Childhood Education Directorate (the Department) to be joined to these proceedings (as second respondent), in the interest of servicing the public, pursuant to s 64(1) of the Court Act. The Department has a concurrence role in the consent of this DA and has refused to grant concurrence to the proposed development, pursuant to s 4.13(8)(b) of the EP&A Act, due to non-compliance with the outdoor space requirements. The Department did not give its concurrence to the proposed development in an email to Council dated 7 March 2019, and thereafter the Council refused the development consent.

9. The primary contention that requires resolution for the Court to grant consent to this DA relates to the non-compliance of Regulation (Reg) 108 of the Education and Care Services National Regulations 2018 (the Regulations), due to insufficient outdoor space allocated for a 45 place child care centre. The respondents therefore contend that the DA is not in the public interest.

10. The parties agree that sufficient ventilation and light can be provided to the outdoor play space by amending the plans to include voids, by way of condition of consent. This addresses the draft General Terms of Approval (GTAs) in the Department’s submission (Exhibit 5), which agrees to delete (b), and amend (a) to show plans with two void spaces (of 1.3 m2 each) in the roof to provide light and ventilation into the open space areas on each floor, should the Court grant consent to the DA.

The Site

11. The site is a regular rectangular shape which is currently vacant, and surrounded by relatively new residential development. It has a total area of 626.8 m2 on northward sloping land, and as a corner lot, has a 16 m frontage to the north with Cadda Ridge Drive, and 27 m frontage to the west with Packham Street.

12. The character of the area is single and two storey brick residences, part of a newly formed residential estate.

Relevant Planning Controls

13. The requirements of subss 4.15(1)(a)(iv) and (e) of the EP&A Act, with respect to the child care centre are particularly relevant in consideration of this DA:

4.15 Evaluation (cf previous s 79C)

(1) Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

…

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

…

that apply to the land to which the development application relates,

…

(e) the public interest.

14. The Department, as the Regulatory Authority for a child care centre, relies on its responsibilities as set out in s 260 of the Children (Education and Care Service) National Law (NSW) 104a (the National Law):

260 Functions of Regulatory Authority

The Regulatory Authority has the following functions under this Law in relation to this jurisdiction—

(a) to administer the National Quality Framework;

(b) to assess approved education and care services against the National Quality Standard and the national regulations and determine the ratings of those services;

(c) to monitor and enforce compliance with this Law;

(d) to receive and investigate complaints arising under this Law;

(e) in conjunction with the National Authority and the relevant Commonwealth Department, to educate and inform education and care services and the community in relation to the National Quality Framework;

(f) to work in collaboration with the National Authority to support and promote continuous quality improvements in education and care services;

(g) to undertake information collection, review and reporting for the purposes of—

(i) the regulation of education and care services; and

(ii) reporting on the administration of the National Quality Framework; and

(iii) the sharing of information under this Law;

(h) any other functions conferred on the Regulatory Authority under this Law.

15. In assessing the areal requirement of the outdoor play space associated with the (45 place) child care centre, Reg 108 of the Regulations is relevant for consideration by the Court:

108 Space requirements—outdoor space

(1) This regulation does not apply in respect of a family day care residence.

(2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space.

Penalty: $2000.

(3) In calculating the area of unencumbered outdoor space required, the following areas are to be excluded—

(a) any pathway or thoroughfare, except where used by children as part of the education and care program;

(b) any car parking area;

(c) any storage shed or other storage area;

(d) any other space that is not suitable for children.

(4) A verandah that is included in calculating the area of indoor space cannot be included in calculating the area of outdoor space.

(5) An area of unencumbered indoor space may be included in calculating the outdoor space of a service that provides education and care to children over preschool age if—

(a) the Regulatory Authority has given written approval; and

(b) that indoor space has not been included in calculating the indoor space under regulation 107.

(6) In this regulation a reference to a child does not include—

(a) a child being educated or cared for in an emergency in the circumstances set out in regulation 123(5); or

(b) an additional child being educated or cared for in exceptional circumstances as set out in regulation 124(5) and (6).

16. With regards to the proposed outdoor space, the proposed development is non-compliant with cl 22(1)(b) of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP).

22 Centre-based child care facility—concurrence of Regulatory Authority required for certain development

(1) This clause applies to development for the purpose of a centre-based child care facility if:

(a) the floor area of the building or place does not comply with regulation 107 (indoor unencumbered space requirements) of the Education and Care Services National Regulations, or

(b) the outdoor space requirements for the building or place do not comply with regulation 108 (outdoor unencumbered space requirements) of those Regulations.

(2) The consent authority must not grant development consent to development to which this clause applies except with the concurrence of the Regulatory Authority.

(3) The consent authority must, within 7 days of receiving a development application for development to which this clause applies:

(a) forward a copy of the development application to the Regulatory Authority, and

(b) notify the Regulatory Authority in writing of the basis on which the Authority’s concurrence is required and of the date it received the development application.

(4) In determining whether to grant or refuse concurrence, the Regulatory Authority is to consider any requirements applicable to the proposed development under the Children (Education and Care Services) National Law (NSW).

(5) The Regulatory Authority is to give written notice to the consent authority of the Authority’s determination within 28 days after receiving a copy of the development application under subclause (3).

Note. The effect of section 4.13 (11) of the Act is that if the Regulatory Authority fails to inform the consent authority of the decision concerning concurrence within the 28 day period, the consent authority may determine the development application without the concurrence of the Regulatory Authority and a development consent so granted is not voidable on that ground.

(6) The consent authority must forward a copy of its determination of the development application to the Regulatory Authority within 7 days after making the determination.

(7) In this clause:

Regulatory Authority means the Regulatory Authority for New South Wales under the Children (Education and Care Services) National Law (NSW) (as declared by section 9 of the Children (Education and Care Services National Law Application) Act 2010).

17. The site is located within an R1 General Residential zone, as identified in the Penrith Local Environmental Plan 2010 (PLEP). There is no contention that the relevant development standards have not been satisfied by the proposed development.

18. In consideration of the DA, there are a number of relevant sections of the Penrith Development Control Plan 2014 (PDCP), and there is no contention that these controls have not been satisfied by the proposed development.

19. The National Quality Framework (NQF) provides a national approach to regulation, assessment and quality improvement for early childhood education and care and outside school hours care services across Australia. The NQF includes: the National Law and Regulations; National Quality Standard assessment and quality rating process national learning frameworks.

20. The Child Care Planning Guidelines 2017 (the Guidelines), in particular the section relating to outdoor play space (s 4.9), and the Australian Children’s Education and Care Quality Authority’s (ACECQA) Guide to the National Quality Standard 2017 (the Guide), specifically Chapter 3 are relevant for consideration by the Court for the appeal of this DA.

Evidence

21. The parties did not call any experts to provide written or oral evidence in the hearing of this appeal, but rely on the supporting documents of the DA submitted into evidence.

22. The Second Respondent, as ordered by the Court, when joined to the proceedings, has provided a written submission (Exhibit 5).

Is the proposed outdoor space sufficient to grant consent to the DA?

23. The parties agree that the proposed design for indoor space is sufficient for a 45 place child care centre and satisfies the requirements of Reg 107 of the Regulations.

24. The parties agree that the proposed development does not meet the areal requirements of 7 m2/child (unencumbered) outdoor space, as set out in Reg 108 of the Regulations, which for a 45 place child care centre equates to 315 m2. The proposed (unencumbered) outdoor space based on the amended plans is 159.3 m2 located across two levels, and equivalent to an outdoor space for ~22 children, pursuant to Reg 108(2).

25. The parties also agree that the number of children able to use the proposed outdoor space at any one time is 22, consistent with the noise assessment (Exhibit C) to reduce noise to adjoining properties. To reduce acoustic impact, due to the site’s proximity to adjoining residential properties, the outdoor play space is best located in an elevated position at the front of the site and can only have a maximum of 22 children outside at a time. The Council and Department have no issue regarding the proposed design, including areas designated for different types of play or the location of the outdoor space of the development. Their contention however relates to the proposed size of the outdoor area to cater for a 45 place child care centre and quality of play.

26. The applicant relies on the Plan of Management (PoM) to detail the schedule of outdoor play to ensure that all children at the centre have ‘adequate’ access and time in the outdoor space. Section 5.0 of the PoM (Exhibit A), describes an outdoor play schedule that breaks up the age groups, and rotating the groups of children through the outdoor space in 30 to 60 minute intervals throughout the day.

27. The Council, as the first respondent, is satisfied that the proposed conditions of consent are sufficient to resolve any acoustic impacts. The Department, as second respondent, contends that the proposed space allocated for outdoor play at the child care centre is not adequate to enhance stimulation and learning through play for all 45 children.

28. Pursuant to s 225 of the National Law, the Department relies on the ACECQA Guide and specifically Chapter 3 Standard 3.1 and Element 3.1.3, below, to describe the purpose of (outdoor) play space within the areal requirement (of 7 m2 per child), as set out in Reg 108(2) of the Regulations:

3.1 ‘The design and location of the premises is appropriate for the operation of a service.’

3.1.3 ‘Facilities are designed or adapted to ensure access and participation by every child in the service and to allow flexible use, and interaction

between indoor and outdoor space.’

Findings

29. It is apparent that the parties, being the two respondents and applicant, are considering and addressing different issues when assessing the proposed development against the non-compliance of outdoor space requirement, as specified in Reg 108(2) of the Regulations.

30. The applicant and first respondent are content that the design of the proposed development, in combination with the draft conditions of consent satisfactorily addresses all the regulatory planning requirements, including the insufficient outdoor space for a 45 place child care centre. Whilst they recognise that the proposed areal dimension of the outdoor space is numerically non-compliant with the Regulations, they contend that any potential noise issues that may affect adjoining residents will be addressed by implementation of the PoM, which limits the number of children outside (to less than 22) at a time. The proposed development therefore satisfies the noise issues raised by local residents, and there will be no detrimental amenity impact to the community from the granting of the DA.

31. The second respondent however is concerned that the proposed outdoor space is insufficient to meet the educational and physical needs of all 45 children attending the child care centre. They agree that the PoM is capable, if properly implemented, of ensuring that the number of children playing outside is limited to less than 22, which satisfies the acoustic assessment. However, the Department deems the quality of time and space for outdoor play is insufficient to meet a growing child’s needs.

32. Therefore, the parties agree that the site is sensitive to noise and this can be addressed by the PoM, although disagree whether the proposed design and size of the outdoor play areas of the child care centre can satisfy the requirements of the children for a 45 place child care centre.

33. I agree that the proposed design of the child care centre complies with all other standards, controls and regulations relevant to the proposed development, except the areal space for outdoor play/activities, pursuant to Reg 108(2) of the Regulations. I also agree that the proposed location of the outdoor play spaces on the ground and first floors, and together with the PoM is capable to limit the number of children to less than 22, outside at any one time. This satisfies that acoustic assessment to mitigate any potential impacts from noise to residents from children attending the child care centre.

34. The issue I must therefore resolve is whether the intent of the areal space requirement, as specified in Reg 108 of the Regulations, is satisfied by the proposed development, and whether the reliance on the PoM is both realistic and practical for a 45 place child care centre to address the educational needs of all the children attending the centre.

35. The outdoor play schedule provided in the PoM is complex. The schedule divides the children into (age)groups and then sub (age)groups in order to comply with the limit of 22 children outside at a time. For example, there are proposed to be 27, three to five year olds at the centre. At any one time, only a portion of this group can be outside. The same pattern is provided for the two to three year old age group, where, although there are only 18 of this age group proposed, they are not all scheduled to play outside at any one time. Therefore, neither of the age groupings will all play together outside at any time during the day. In addition, the maximum period of play outside is 1 hour for the older group, and 50 minutes for the younger group. However, the bulk of the (outdoor)play sessions are 30 minute periods.

36. Therefore, whilst the schedule of outdoor play sessions does comply with the requirements of the noise assessment to limit 22 children playing outside at a time, the quality of these play sessions I consider is not satisfactory for the following reasons.

37. The description of Reg 108 in s 4.9 of the Guidelines is not particularly helpful to explain the intent of the outdoor space requirement (of 7 m2 per child), except to describe how it should be calculated and state the following:

“An education and care service premises must provide for every child being educated and cared for within the facility to have a minimum of 7.0m2 of unencumbered outdoor space.”

38. I therefore must turn to the ACECQA Guide to understand the intent of the outdoor space requirement as it relates to a child’s well-being, and whether the space available with the proposed management schedule for a 45 place child care centre is sufficient to satisfy Reg 108 of the Regulations, with regards to outdoor space.

39. To assess the intent of the areal space requirement of 7 m2 per child, pursuant to Reg 108(2) of the Regulations, I rely on the ACECQA Guide for guidance on what an outdoor space is required to achieve with regards to a child’s development. According to p80 of the Guide (below), which relates to the physical environment in a child care centre, a child needs access to outdoor space as much as indoor space:

Wherever possible, children need opportunities to be outdoors as much as indoors. This can be achieved with well-designed integrated indoor and outdoor environments that are available at the same time.

40. Further to this, on p82 of the Guide, it describes the function of an outdoor play space within a child care centre:

“Outdoor environments are characterised by both active and quiet zones that comprise a balance of fixed and moveable equipment, open space to engage in physical activities and spaces that promote investigation and respect for and enjoyment of the natural environment.

These spaces are dynamic and flexible and:

• provide opportunities for unique play and learning

• complement and extend the indoor activities and learning experiences

• offer children opportunities to be active, messy and noisy and play on a large scale.”

41. It is apparent in my assessment of the evidence before me that based on the PoM’s outdoor play schedule that children in a 45 place child centre at this site will not have equal access to outdoor and indoor play spaces. The time allocated for outdoor play for each child is limited to a maximum of 2.5 hours per day over the course of the day in short intervals. I do not consider this equivalent to the time the children will spend indoors at play. In addition, the very limited periods of play, particularly the half hour time slots are insufficient for the children to ‘play on a large scale’.

42. I agree with the Department that the requirements for ‘Quality Area 3’ of the National Quality Standard for Early Childhood Education and Care (NQS), which:

“focuses on the physical environment and ensuring that it is safe, suitable and provides a rich and diverse range of experiences that promote children’s learning and development”,

is not achieved by the proposed development for a 45 place child care centre, and in particular Standard 3.1 and Element 3.1.3 of the Guide are not satisfied by the proposed outdoor (play) space.

43. The NQF is achieved through compliance with the National Quality Standard. Therefore, as the NQF, which underpins the National Law and the Regulations is not achieved, I find that the proposed development is not compliant with Reg 108 due to inadequate provision of outdoor space. The proposed development is inconsistent with the National Law and the Regulations.

44. There appears to be some consistency with the noise assessment limitation of 22 children in the outside space at any one time and the areal requirement for the proposed outdoor space, which pursuant to Reg 108(2) of the Regulations is equivalent to about 22 children for the space provided.

45. The applicant was given the opportunity during the hearing to consider addressing the non-compliance of its proposed outdoor space by using any indoor space, pursuant to Reg 108(5) of the Regulations, and/or by reducing the number children proposed at the child care centre. The applicant however does not seek to do either of these options, and therefore seeks to rely on the DA before the Court for a 45 place child care centre with its supporting documents including the amended plans and PoM. The applicant did not provide any further justification for a preference of a 45 place as opposed to a 22 place child care centre.

46. I find that the proposed development based on the supporting documents to the DA for a 45 place child care centre is not in compliance with the Regulations, specifically Reg 108. The proposed development is also not compliant with cl 22(1)(b) of the SEPP.

47. I find for the reasons stated above, in particular non-compliance with Reg 108 of the Regulations and cl 22(1)(b) of the SEPP that the proposed 45 place child care centre on this site does not satisfy subss 4.15(1)(a)(iv) and (e) of the EP&A Act, and that the Court cannot grant consent to DA 18/0332.

48. I am not satisfied that the proposed development is lawful and complies with the relevant provisions of the EP&A Act.

Orders

49. Consequently, the orders of the Court are as follows:

1. The appeal is dismissed.

2. Development Application 18/0332 to construct a 45 place child care centre, with basement parking at Lot 332 DP 1175094, also known as 68 Cadda Ridge Drive, Caddens is refused.

3. The exhibits, except for Exhibits 1, 3, A and C, are returned.

…………………….

Sarah Bish

Commissioner of the Court

**********

Decision last updated: 05 June 2019