The applicant's position on the Plan of Management
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.
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.
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.
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".
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.
[2]
The Plan of Management is acceptable and capable of compliance
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.
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.
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."
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.
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.
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.
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.
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.
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.
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".
[3]
Is a trial period required?
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.
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.
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.
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.
[4]
The appropriate outcome
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.
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.
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.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 June 2023
Parties
Applicant/Plaintiff:
Entrepreneur Enterprises Pty Ltd
Respondent/Defendant:
Lane Cove Municipal Council
Cases Cited (5)
The Plan of Management
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.
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?"
The Council submits that the proposed POM fails these requirements, and is therefore inappropriate for the centre.
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.
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.
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.
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.
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.