Frangi v City of Parramatta Council

Land and Environment Court (NSW)|2021-07-29|Before: Dr J

Judgment

COMMISSIONER: This is a Class 1 - Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the deemed refusal of a development application number DA/716/2019 seeking consent for demolition works, tree removal and construction of a 67 place two-storey child care centre with basement parking (the Proposed Development) at 25 Lanhams Road Winston Hills legally described as Lot 1 in DP 503177 (the Site).
The Proposal is for the 67 children of the child care centre to be comprised of 12 children aged 0-2 years old, 25 children aged 2-3 years old and 30 children aged 3-5 years old.
The proceedings commenced with an inspection of the Site and of a number of proposed emergency evacuation assembly points being on the verge in front of the T intersection, the cul-de-sac and the 'park' underneath the electricity tower. We did not go inside the existing building on the Site. There was some discussion about deep soil and the On-site Stormwater Detention (OSD) in the front and we went out the back where acoustic fence heights were indicated by a height pole 2.1m, 2.4m and 2.6m, noting the height of the existing hedge on the southern (rear) boundary. The acoustic treatment for the boundary adjoining number (23 Lanhams Road) was discussed and the landscaping layout in relation to how loud/quieter outdoor play/activities would take place.
The proceedings continued over a period of 5 days and the development application evolved further throughout the proceedings. The Applicant in closing submissions concedes that the proceedings has "been an exercise of litigious concessions for belts and braces". (Transcript 29 July 2021, p 155)
The facts and background of the Proposed Development are set out in Part A of the Statement of Facts and Contentions (SOFAC) filed 21 December 2020 (Exhibit 2), and the Contentions pressed by the Respondent are particularised in Part B of the SOFAC and were summarised by the Respondent in opening by reference to a table provided to the court as an aide memoire. The Respondent provided detailed written submissions and contends that the Court should refuse the Proposed Development on three principal bases as follows: 1. The 'acoustic compliance' of the proposal in terms of its impact on neighbouring residential properties is theoretical rather than practical or realistic, and the requirements for the centre to meet the assumptions and recommendations of the acoustic assessment (even if they could be achieved in the real world, which they cannot) compromise the amenity and usability of the centre (Contention 8); 2. The proposal fails to provide adequate facilities for the operation of the childcare centre or satisfactory amenities for the young children and educators at the centre (contention 12, excluding contentions dealt with in respect of emergency evacuation); and 3. The emergency evacuation plan is unsatisfactory (contention 12(h), (m) and (15(a))

Acoustic privacy - design of child care centres in order to minimise acoustic and visual privacy impact to adjoining properties (Contention 8)

The first basis for refusal relied on by the Respondent is that the 'acoustic compliance' of the Proposed Development in terms of its impacts on neighbouring residential properties is theoretical rather than practical or realistic, and that the requirements for the centre to meet the assumptions and recommendation of the acoustic assessment compromise the amenity and usability of the centre (Respondent written submissions, par 23).
The Respondent's written submissions sets out on page 8, the law and policy relevant to acoustic impacts on residential properties. I accept that as the Proposed Development is in a residential zone, the acoustic impacts of the Proposed Development on residential properties must be considered and that the Planning Guideline, Pt 3.1 control C1 provides for a number of considerations when selecting a site in a residential zone for a child care centre, including considering "the acoustic and privacy impacts of the proposed development on the residential properties" (Exhibit 1, folio 72).
This is also consistent with the requirement of s 4.15(1)(b) of the EPA Act in determining a development application, a consent authority is to take into consideration the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, being a matter of relevance to the development the subject of the development application.
The experts have relied on the Guideline for Child Care Centre Acoustic Assessment (Version 3.0, 2020) (Acoustic Guideline) and the Respondent notes that the SOFAC pre-dated Version 3 of the Acoustic Guideline, and refers instead to Version 2 of the Acoustic Guideline. I have taken the evidence of the experts and have considered Version 3 of the Acoustic Guideline.
The objectives of the Acoustic Guideline include noise goals and are intended to ensure that a child care centre in a residential area does not generate unacceptable noise levels to adversely impact on residents within adjoining properties and other properties close to the Site. (Exhibit 1 folio 328)
The Applicant relies on the zoning of the Site, R2 Low Density Residential, pursuant to the PLEP where a centre-based child care facility is a permissible use and relies on the planning principle enunciated in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 ('BGP Properties') at [115]-[119], where it is noted that "in most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts."
The Applicant submits that in relation to acoustic impact, the wording of the R2 zone objective in the Land Use Table of the PLEP is to 'minimise' impacts rather than needing zero impact from non-residential uses (Applicant written submissions, par 12), and further submits that the acoustic amelioration measures, by management of the types of play that the children are engaged in, together with acoustic barriers, are not uncommon and actually recommended by the Association of Australasian Acoustical Consultants Guidelines (AAAC Guidelines) and the PDCP. The Applicant relies specifically on the feature of the Proposed Development that there will be no restriction on the number of children which can be outside at any one time (Applicant written submissions, par 20-22 and JER Child Care Exhibit 5 p 3 at par 21).
The Contention 8 in the SOFAC is particularised in significant detail and the Respondent helpfully prepared and made submissions in opening against a document marked MFI 1, being a table used as an aide-memoir to assist and clarify what has been resolved as a result of the joint expert reports and what remains in contention in these proceedings. (Transcript D1, p 4 at [46]).
In opening, the Respondent submits that the crux of the concern can be found in diagrammatical overview of Mr Cooper's assumptions found at appendix A3 to the letter from Steven Cooper, The Acoustic Group dated 15 January 2021 (Exhibit F) and which is reproduced below. "Council's position and submission is that those assumptions for active play in this context are simply unreasonable and that the assumptions that are proposed, or the conditions that are proposed for the plan of management to achieve active play in the area with the red dots and passive play in the area with the yellow dots is simply not circumscribed in any way that could be implemented by a teacher, and is not circumscribed in any way that could be understood and complied with by zero to five-year-olds." (Transcript D1, p 42 at [30]-[35]) Figure 1: Appendix A3 to Letter from The Acoustic Group (Exhibit F)
The Respondent submits on the first day of the proceedings that "the design of the landscaping is not consistent with this distinction between active and passive play. There's no clear barrier between the areas where the type of play can be carried out and imposes an unreasonable burden on educators to police a distinction between active and passive play in terms of the numbers of children of different age groups allowed to be engaged in particular types of play in particular places" (Transcript D1, p 42 at [45]-[50]). The Applicant in response has included a draft condition of consent CE 4 as follows: "CE4. Prior to the issue of a construction certificate the architectural and landscape plans be amended to show an extension of the fence to enclose the active open area in the centre of the outdoor play space. This fence will have a gate in the 2-5 year old outdoor play area."
The Respondent does not accept this condition on the basis that it is unclear and uncertain, and in Exhibit 3 explains that "the active and passive areas are not clearly separate and Council does not accept that fencing the small active play space is a suitable solution for 30 children."
Both parties made submissions in closing and in reply, in relation to the proposed fence or barrier proposed by the Applicant. I will address these submissions now.
The Applicant's closing submissions on fencing location is that "It's abundantly obvious where it goes, Commissioner. You look at the landscape plan with a clear designated ring running around and you compare that to the red rectangle, and it's clear where the fence should go. Again, the conditions says "indicative", so there will be a sensible location that runs around that clear area." (Transcript 29 July 2021, p 183 at [25])
The Applicant also asked the Court to do a 'very quick exercise' which is to place side by side the landscape plan (Exhibit B) and p 31 of Exhibit 4, and to consider the evidence of Ms Shepherd regarding environmental cues to separate the passive and active play areas (Transcript 29 July 2021, p 183 at [5]). I reproduce an extract of the landscape plan being the left hand side half of the plan (Exhibit B) and p 31 of Exhibit 4 below: Figure 2: Extract from Landscape Plan (Exhibit B) Figure 3:Page 31 of Joint Acoustic Expert Report (Exhibit 4)
I note also that the Applicant's Draft/Proposed Conditions of Consent seeks to amend the Plan of Management (POM) in a number of ways, including by adding p 31 of Exhibit 4 which includes the word "indicative" referred to by the Applicant in submissions regarding the location of the fence/barrier whereas the proposed condition CE4 does not include the word "indicative". The condition CE6 does not refer to the location of the barrier and is limited to the inclusion of p 31 of Exhibit 4 to the POM and reads as follows: "Prior to Occupation Certificate CE6. Prior to the issue of the Occupation Certificate, Revision 8 of the Plan of Management dated 6 January 2021 be amended to incorporate the following: […] (G) amend the POM to include the plan contained at page 31 of the acoustic joint experts report dated 28 January 2021 showing the indicative location of Active and Passive play."
It is noted that the red rectangle depicted on p 31 of the Expert report may or may not be consistent with the proposed amended architectural and landscape plans which will show the actual location of the proposed fence referred to in proposed condition CE4.
The Applicant's proposed consent condition 124 (or 123 in Exhibit 3) which seeks to regulate outdoor play as part of the use of the Site (quoted at [52] below), is consistent with the language used in the POM regarding the outdoor play area for the children aged 2-5 years old being OPA2 defined as "the southern side of the outdoor area dedicated for the 2-5 year old children" and requires a maximum of 15 children from each age group of 2-3 year old's and of 3-5 year old's in "active play in OPA2". There is no mention of the barrier or fence nor is there any mention or reference to the plan contained at p 31 of Exhibit 4. To further confuse the matter, proposed consent condition CE6(E) provides for amendment to the POM to add additional detail in respect of the management of the children including the provision of the following clauses of which (c)(ii) provides reference to the landscape plan which is not the plan at p 31 of the Exhibit 4 and reads as follows: "The following strategies will be implemented to ensure that children can play within defined spaces and receive quality education and care: […] (ii) The landscape plan provides designated spaces available throughout the outdoor space that can allow educators to create areas of purpose and invitations to play that children can explore and move between. […]"
The reference to children exploring and moving between areas is inconsistent with the proposed limitation of 30 children (15 from each age group of 2-3 and of 3-5 year old children) located in the 'middle' active play area which is now proposed by the Applicant to be fenced.
The Applicant submits in the alternative, that if the Court were to accept Ms Shepherd's evidence (regarding environmental cues in the landscape plan being sufficient to distinguish between active and passive play areas), then the Court could delete the conditions requiring the fence, namely condition CE4 quoted above.
Respondent's closing submissions regarding the proposed boundary or fence around the active area indicated by the 'red rectangle' on p 31 of the Exhibit include a number of concerns which I will address now.
Firstly, the boundary fence has not been identified in the plans before the Court and the location of the fence is uncertain. The Respondent submits that the plan on p 31 of Exhibit B was never intended to be a plan to be used to identify the distinction between active and passive, it was a document prepared by Mr Haydon, indicating roughly the vicinity of the children that the acoustic model is being active or passive play.
I accept this concern regarding the reliance by the Applicant on p 31 of Exhibit B because there are significant areas of outdoor play areas are outside the red or yellow outlined areas, such as the veggie patch and cubby houses and sensory table, and further, the orange outlined area is not in line with the proposed fence around the 0-2 year old area. Also, the outdoor learning area deck is included in the orange area but not in either of the yellow or red areas. I conclude that the plan on p 31 of Exhibit 4 was not intended to delineate the active or passive play areas and it is not sufficient for the purpose of providing clear guidance for the educators, as proposed by the Applicant.
Secondly, the Respondent is concerned that the 30 children in the enclosed active play area would be precluded from using much of the backyard and there will be 30 children engaged in active play, limited to one quarter of the available space in the backyard and the 25 children who are enrolled in passive play are left to use so much of the balance of the backyard, as it identified as passive. The Respondent submits that simply putting a condition in with a fence, to fence an area in the middle of the property is not going to stop a child playing on the bridge, playing in the boat, and playing in the tepee, from making noise when they're using that area.
For the reason that I am unable to find sufficient certainty in the proposal to fence an unclear and undefined area where the terms of the proposed POM do not facilitate or anticipate such fence or barrier, I conclude that the fence condition CE4 should be deleted.

Landscape design and acoustic privacy

This then leaves the environmental cues referred to by Ms Shepherd as relied on by the Applicant and the concerns raised by the Respondent that in order to comply with the acoustic assumptions, the Proposed Development relies on the landscape design and the POM in order to manage the types of play in certain areas.
Ms Campbell admits (and the childcare experts agree) that children will spread themselves around the outdoor play spaces as a natural consequence of their play preferences (Exhibit 5 at par 21), and that passive play will not always be quiet (Exhibit 5 at par 23).
The Respondent submits that "the proposal is only complying with the AAAC guideline based on these assumptions in Mr Cooper's report […] a scenario which really risks there being a material amenity impact on the neighbours" (Transcript D1, p 43 at [15]-[24]).
I will address the Applicant's submissions regarding strict compliance later in the judgment. There are then two elements here to manage the types of play being landscaping design and the second being management of play pursuant to the POM.
In relation to the landscaping design, the Respondent submits that "the simple fact is that if you design landscaping for things like boats and bridges where you can be elevated and run around, it's simply not appropriate design to then, by condition, purport to say that the children have to engage in passive activities, and in those areas, that lend themselves, in fact, […] to say that they can't engage in active activity. […] They are limiting, in the way that (Ms) Shepherd has suggested in the joint report, their ability to engage in active and passive play activities in natural locations." (Transcript 29 July 2021, p176 at [41])
In relation to types of play generally, the Respondent submits "Even if the educators had clear guidelines as to how to achieve conditions that are similar to Mr Cooper's assumptions, I say that there's no guarantee that the educators, despite encouraging students to engage in active or passive play in particular areas, will be able to successfully achieve those conditions in the context of this proposal." (Transcript D1, p43 at [8]-[10])
Ms Shepherd's evidence at par 28 and 29 Exhibit 5: "Designating numbers of children to particular zones is an approach to planning children's outdoor play that is not typical in an early childhood program. Children's exploratory, problem solving, imaginative play should be nurtured to emerge from the following; children's friendship groups; play space preferences and their own spontaneous ideas. […] The constraints around ensuring children play actively and passively in particular zone does not acknowledge the children's natural inclinations, internal locus of control and agency in choosing what to play and where."
Ms Campbell's evidence regarding noise levels expected from active and passive play is that "the definition of active and passive play does not necessarily mean that active play will always be noisy and passive play will always be quiet. […] This service has intentionally designed the landscape to promote the passive types of play around the edges and more active play in the centre." (Exhibit 5 at par [23]-[24])
Having considered the evidence of the child care experts and the submissions of the parties, I accept the agreed expert evidence that the children will move and explore naturally in accordance with the landscape design of the outdoor play area and that passive play does not necessarily mean quiet play. The next consideration is how the outdoor play is proposed to be managed pursuant to the POM to achieve acoustic compliance.

Is the Plan of Management appropriate?

The Applicant relies on the POM, version 8 (Exhibit E) which the Applicant now proposes to be further amended prior to the issue of an Occupation Certificate as detailed in the Applicant's Proposed/Draft Conditions of Consent (Exhibit P) at CE6. The management of types of play during outdoor play is a key feature relied on by the Applicant for the Proposed Development to achieve acoustic compliance.
It is agreed that the minimum area of unencumbered outdoor space is provided in accordance with cl 108 of the Education and Care Services National Regulations (Regulation), and the Applicant submits at par 18 of Written Submissions that the proposed use of the outdoor play space is acceptable, consistent with the evidence of Ms Campbell on behalf of the Applicant (JER Childcare Exhibit 5 page 4), because: 1. The Applicant has intentionally designed the landscape to promote the passive types of play around the edges and more active play in the centre; 2. Condition CE4 provides for an extension of the fence to enclose the active play open area in the centre of the outdoor play space, although I note that I have concluded that proposed condition CE4 should be deleted and therefore this reason cannot be relied on by the Applicant; 3. Condition CE5 requires the removal of stepping stones near the sandpit in the 2 - 5 year old outdoor area and be replaced with mulch garden areas for garden exploration; 4. The educators are trained (see cl 272 of the Regulation and with all children outdoor at the same time there will be ample educators who will be able to interact with the children to maintain this engagement; 5. Condition CE6(c) requires an additional staff centre manager to assist with the management of the passive and active play at the premises (which was support by Mr Haydon see Transcript D3 p 237 Line 8) 6. The POM provides clear guidance and timetabling for outdoor play and Condition CE6(E) provides even further improvements and safeguards, which were also supported by Mr Haydon (see Transcript D3 p 237 Line 333). Mr Haydon's evidence is that they are "sensible suggestions". 7. The play schedule provides that each child will have at least 4 hours of active and passive play outside.
The Applicant submits that the impacts on acoustic amenity of the proposed child care centre are ameliorated by management of the types of play that the children are engaged in together with acoustic barriers. I accept that the types of amelioration measures proposed by the Applicant are not uncommon, but that is not the question to be answered or the issue to be determined in these proceedings. Rather, the issue is whether the amelioration measures are appropriate for the Proposed Development insofar as the impacts on the adjoining residential neighbours are concerned. Or put another way, does the design of the project result in acceptable environmental impacts? (BGP Properties).
The Respondent identifies that the acoustic attenuation and management measures are reflected in the JER Acoustic (Exhibit 4) in pars 65, 66, 77, 78, 83 and Appendix 3. There are also other requirements included in the POM (Exhibit E) at pp 6-7 and 10.
It is an agreed position of the childcare experts (Exhibit 5 page 3) that: "… up to 30 children can be active which would reflect what type of play is intended to occur in the landscape proposed and children will spread themselves around the outdoor play spaces as a natural consequence of their play preference and educator will engage with children in the play and support their active pay experiences as needed, as the staffing rations will be maintained with the whole group being outside."
The outdoor play is sought to be regulated by the POM and also by a condition of consent which seeks to restrict outdoor play as follows (Exhibit P - Applicant's Draft/Proposed Conditions of Consent, condition 124 (renumbered as 123 in Exhibit 3)): "124. Outdoor play is restricted to the following number of children and is limited only to the following times comprising 4 hours total per day: Time 0-2 years 12 children 3 educators present 2-3 years 25 children 5 educators present 3-5 years 30 children 3 educators present 9.30 am - 11:30 am Outdoors (all) in OPA1 Outdoor maximum of 15 children in active play in OPA 2 Outdoor maximum of 15 children in active play in OPA 2 2.30pm - 4:30 pm Outdoors (all) in OPA1 Outdoor maximum of 15 children in active play in OPA 2 Outdoor maximum of 15 children in active play in OPA 2

In this condition: • "Active play" means types of play that generate noise . that is not Passive play as defined in Revision 8 Plan of Management dated 6 January 2021. • "OPA 1" is the eastern side of the outdoor area dedicated for the 0 - 2 year old children. • "OPA2" is the southern side of the outdoor area dedicated for the 2 - 5 year old children"

It is noted further that proposed consent conditions 122 in Exhibit P seeks to incorporate the assumptions and recommendations of the acoustic experts and reads as follows: "122. The child care centre must be operated in accordance with the assumptions and recommendations in the Joint report of acoustic experts filed 28 January 2021 in the proceedings, without affecting the obligation to also comply with any other specific condition in this approval."
Respondent submits at par 29 of written submissions that the assumptions used to model the acoustic impacts are unrealistic and the POM would be ineffective to achieve those assumptions because: "(a) children cannot be expected to understand the distinction between passive and active play; (b) the design of the landscaping is not consistent with this distinction between passive and active play; (c) there is no clear barrier between the areas where the type of play can be carried out; (d) it imposes an unreasonable burden on educators to police the distinction in terms of numbers of children of different age groups allowed to be engaged in particular types of play in particular places; and (e) the information provided in the plan of management as to the distinction between "active" and "passive" play (that is, what is meant by these terms) and the areas that are allocated to each is unclear for educators (or lawyers, for that matter); and (f) even if educators had clear guidelines as to how to achieve conditions similar to Mr Cooper's assumptions that are required to achieve acoustic compliance (and there is not that level of clarity in the plan of management in Exhibit E in this case), there is no guarantee that educators (despite encouraging students to engage in active or passive play) will be able to successfully achieve those conditions."
In relation to the POM, the Respondent submits that the planning principle in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 ('Renaldo Plus 3') provides some considerations regarding whether a POM is appropriate for a particular use or circumstances at par 54 of that judgment, which provides as follows: "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?"
In written submissions, the Respondent submits that the considerations in par 54(2), (3), (4) and (5) of Renaldo Plus 3 quoted above, and to which I have added emphasis in italics, weigh strongly against the appropriateness of the POM proposed in Exhibit E.
Nevertheless, the Applicant submits on p 12 of written submissions that the POM and conditions of consent complies with the requirements of Renaldo Plus 3 for the following reasons: 1. There is nothing unreasonable about the controls on the operation of the centre, particularly in circumstances where it is managed and run by adult educators. 2. The POM requires the educators to be provided with the controls and restrictions, the POM is clear on what the maximum number of children is for each area and the other restrictions that apply. 3. The POM is readily enforceable and breaches can be enforced by the Council through fines, and managed by the centre by reverting to compliance, such as closing a window or reducing the number of children in an area. 4. Further, the POM demonstrates that there is a suitable daily program that can be utilised whilst also maintaining the restrictions. Consistent with the evidence of Ms Campbell, as there is flexibility for one educator to have a ratio of children indoors or outdoors, a program can be adjusted into any number of combinations that ensures that the relevant acoustic goals and child supervision limitations are adhered to.
The Applicant provides the Court with a number of decision as examples of approvals by the Court of POM for Child Care Centres and relies on the findings of the Court in Tahany Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1008 at [119]-[124]. Decision of Commissioner Gray where she held as follows: "The Plan of Management is satisfactory 119 I accept that the Plan of Management is satisfactory and meets the requirements established by the planning principle in Renaldo Plus 3 Pty Limited v Hurstville City Council. First, I accept that the restrictions on each of the play areas are sufficiently clear. Contrary to the evidence of Mr Rowan, there is no requirement for the educators to interpret the acoustic report. 120 Second, the sample program table demonstrates that compliance can be achieved but it is indicative only. Therefore, any concerns of Dr Abbey with respect to the reasonableness of the number of transitions in that particular program do not arise at the stage of assessing the development application. I accept that educators would be sufficiently able to adapt the program to respond to child-directed play by extending the time in some of the areas, which would maintain the restrictions on each of the play areas. 121 Thirdly, I accept the evidence of Ms Campbell that the restrictions are workable and that other programs could be developed that maintain those restrictions, whilst also ensuring that there is adequate supervision and adequate time for the various types of play. 122 Fourthly, I consider that the complaints procedure in place will notify the centre of illegal parking, which will then engage the procedure for dealing with poor parking behaviour. 123 Finally, the Plan of Management will be enforced as a condition of consent, and contains complaint management procedures, as well as a procedure for updating and changing the Management Plan. 124 For these reasons, I am of the view that the Plan of Management is an appropriate way to manage the operation of the child care centre and to ensure that the acoustic impact is reasonable and that parking behaviour is managed, whilst also providing recourse for neighbouring residents through a complaints procedure."
The Respondent rightly notes that each of the cases provided by the Applicant turn on the facts and that they are not precedent. The Respondent did however refer to the Court to the decision of Commissioner Dickson in Force Way Group Pty Ltd v City of Parramatta Council [2021] NSWLEC 1024 ('Force Way') which had the following restrictions in the POM: "45 The POM also includes an indicative daily timetable that seeks to demonstrate that the restrictions arising from the acoustic assessment can be accommodated. Those operational restrictions are: (1) That only the western half of the outdoor play area can be utilised for active play, with the eastern half restricted to passive (i.e. quiet) play. (2) The doors and windows on the eastern side of the 3-5 year old classroom being maintained closed when the room is in use. The southern door of the classroom to the outdoor play area can remain open. (3) Any external doors and windows to the 2-3 year old classroom can only be open in circumstances where the outdoor play areas are not in use. (4) The cot room windows are required to be closed when the room is in use. (5) No amplified music or sound is to be used outside the building."
I agree and accept the Respondent's submission that Commissioner Dickson correctly observed that "it is a matter of merit assessment on the specific facts of the proposal whether these measures are appropriate, reasonable and capable of reliable implementation through, for example, a POM" (Force Way at [71]. Dickson C goes on to determine as follows: "[108] Based on the evidence and submission, as summarised in the preceding and contained in the various experts oral and written evidence, it is my assessment that the proposed childcare centre warrants refusal. [109] Consistent with my findings at [78] I accept that on a theoretical basis the proposed development meets the acoustic criterion. However, I find that the means of achieving that compliance and the mitigation measures relied on are, on merit, unsatisfactory. [110] In brief it is my view that: 1. firstly, the modelling of the noise likely to be generated by the outdoor play areas, and in particular the modelled scenario, is unlikely to represent the likely actual noise generated and that breaches of the acoustic criteria are likely to occur. 2. secondly, that the POM is unsatisfactory in that it requires people to act in a manner that is unlikely. For example, children and educators need to observe a strict distinction between active and passive play, strict adherence is required to both the numbers of children and their location within the outdoor play area and the POM is required to be complied with strictly for the facility to achieve acoustic compliance."
I will now address the three relevant Renaldo Plus 3 planning principle questions with my findings and conclusions.
The first question is: "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?"
The Respondent submits at par [60]-[61] of written submissions, that the Proposed Development fails this test because the landscape design of the outdoor space area is not such as to promote passive play near the boundaries or edges as described by Ms Campbell, in that the equipment such as the boat, jetty or teepees are not objects of passive play and that children are precluded from engaging in elevated play except at location 5 of the outdoor play area, and the Respondent concludes with the submission that the combination of the factors in pars 49-60 of the written submissions means that "the proposal fails the consideration in Renaldo planning principle 2; 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."
Having carefully considered the submissions of the parties and the evidence of the child care experts, I conclude that the answer to the question 2 is yes, that is, that the POM for the Proposed Development would require people, including the children, to act in a manner that would be unlikely or unreasonable in the circumstances of the Proposed Development.
The second question is: "Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?"
The Respondent's written submissions at pars [63]-[64] refers to the fact that there are no clear boundaries between the areas and submits that red and yellow dots are meaningless compared with a real-world scenario. Accordingly, the Respondent submits that there is no clear standard by which the child care centre could be considered to have breached the expectations reflected in Mr Cooper's scenario and that the dots and types of play suggested is wholly unenforceable as a standard to maintain the amenity of the neighbours. In closing submissions, the Respondent says that the POM does not satisfy principle number 3, which is that the source of any breach of the management plan cannot be readily identified to allow for any enforcement action. This would be the management plan over the years and even with conditions that the applicant has now proposed, the Respondent submits that it is insufficient to enable enforcement, and that's something that needs to be determined in respect of these impacts now. (Transcript 29 July 2021 p 177 at [28])
In addition to the reasons at [48] above, the Applicant in reply, refers to the enforceability of the POM, limited to acoustic compliance, by relying on the acoustic criteria of 50dBA and submits that "if we're not getting 50dBA at the most sensitive receiver, that's how you determine compliance, not whether a child is being active or passive […] You just take an acoustic test at the sensitive receiver. That's the end point which is the easiest to comply with." (transcript 29 July 2021, pa184 at [5]-[10])
I conclude that the assessment of this question is not limited solely to the acoustic compliance but to the terms of the POM itself because compliance with the POM is a condition of consent, should consent be granted. Without a fence or barrier, I do not agree that it will be clear to ascertain the number of children in an undefined 'indicative' active open play area, as asserted by the Applicant. I accept that the acoustic 50dBA criteria is the simplest measure, however the operational terms of the POM regarding the type of play at particular locations by a specified number of children, an essential assumption of the acoustic compliance model, are not sufficient clear in order to allow simple enforcement. Accordingly, for these reasons, my answer to this second question is no, the source of any breaches of the Management Plan cannot be readily identified to allow for any enforcement action.
The third question is: "Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?"
The Applicant submits at pp 9 and 10 of the Applicant's written submissions to the effect that strict compliance with the POM is not required to still achieve the acoustic compliance modelled by the Acoustic Experts in Exhibit 4. This submission by the Applicant is not supported by the evidence.
Mr Cooper's evidence is that the acoustic model is predicated on strict compliance with the assumptions he had given (Transcript 4 February 2021, p 110 at [28]): "STAFFORD: So your conclusions, in this report, are predicated on strict compliance with the assumptions you've been given, that's correct? WITNESS COOPER: Yes."
The acoustic experts agree at par 58 of Exhibit 4, that based on the scenarios proposed by Mr Cooper and the noise mitigation and management measures recommended, acoustic compliance can be achieved. However, Mr Haydon is concerned that the outdoor play scenarios presented by Mr Cooper may not represent worst-case scenarios (par 67 Exhibit 4) and at par 68 and 69 Exhibit 4, that these scenarios: "rely upon the implementation of a strict Plan of Management limiting outdoor play according to:

Group size
Age
Type of play (passive or active)
Location of play If a management plan can be implemented ensuring that actual play scenarios closely replicate the scenarios proposed by [Mr] Cooper in his calculations, then theoretical acoustic compliance can be achieved. Should there be a deviation from the restricted scenarios, such as more playing together or children playing closer to the boundary, the exceedances of the acoustic criteria are likely."

Mr Haydon repeats this concern again at par 76 of Exhibit 4.
The Applicant submits that the POM can be breached 'left, right and centre and still achieve acoustic compliance on Mr Haydon's modelling because he's got those louder children in the active area, which we're not proposing at all. We're proposing 15." Again, the Applicant's submission is not supported by the evidence before the Court.
To be clear, the Proposed Development proposes a maximum of 15 children from each age group of 2-3 year old's and of 3-5 year old's totalling a maximum of 30 children in the area referred to in the POM and in the Proposed Conditions as "OPA2" defined as "the southern side of the outdoor area dedicated for the 2-5 year old children". There was some confusion during the Applicant's cross examination of Mr Haydon regarding strict compliance and the reference to 15 children. This confusion was clarified, and Mr Haydon's evidence is that the combination of 15 children aged 2-3 year with 15 children aged 3-5 will result in the sound power level only going down marginally. The exchange is as follows, from the transcript D3 p 249. SMITH: Oh, okay. In fairness to you, if you put 30 three to five year olds in a room‑‑ WITNESS HAYDEN: Yes. SMITH: All right, and generate the sound power level. WITNESS HAYDEN: Measure the sound power? SMITH: Yes. WITNESS HAYDEN: Yes. SMITH: You take out 15. WITNESS HAYDEN: Yes. SMITH: And you replace them with 15 younger kids aged two to three‑‑ WITNESS HAYDEN: Mm-hmm. SMITH: ‑‑and then measure the sound power level‑‑ WITNESS HAYDEN: Mm-hmm. SMITH: ‑‑it'll go down? WITNESS HAYDEN: Marginally. SMITH: That - that's - that's the only point‑‑ WITNESS HAYDEN: Based on the numbers provided by the AAAC's guideline, yes. SMITH: That's correct. That's the point. WITNESS HAYDEN: Yeah.
I conclude that the evidence does not support the Applicant's submission that the POM is conservative in relation to acoustic compliance and I accept the evidence of the experts that the acoustic model is predicated on strict compliance with the assumptions of the scenario which are then adopted in the modified way into the POM which only achieves a 'marginal' lowering of the sound power level. As such, I accept the Respondent's submission that the proposed approach to acoustic compliance fails to meet the consideration in planning principle 4 in Renaldo Plus 3, which is the requirements in the management plan require absolute compliance to achieve an acceptable outcome.
The last Renaldo Plus 3 planning principle question is: "Can the people the subject of the Management Plan be reasonably expected to know of its requirements?"
The Applicant has submitted that the POM is clear for trained educators who will be responsible for implementing it. The Respondent does not agree.
The Applicant submits that in cross-examination Mr Haydon agreed that there's no confusion about what is passive and what is active play and refers the Court to Transcript D3 p 245-246 Line 32. I am not satisfied that Mr Haydon's evidence is that he simply agreed that there's no confusion about the different types of outdoor play. The evidence of Mr Haydon is recorded in the transcript from the top of p 245 as follows: "SMITH: […] Now, Mr Hayden, you express a view that this plan management is complex and confusing and the council has conceded it's not the closing and opening of the windows that creates that confusing nature, and I put to you that having all of the kids outside isn't complex. WITNESS HAYDEN: Having all of the children outside would not be complex. SMITH: No, and in fact this plan of management doesn't require certain ages to be out at any one time, or‑‑ WITNESS HAYDEN: No, the complexity arises from having to determine whether they're playing in active play or passive play and control that. So that's the complexity that I'm alluding to. SMITH: All right. So the plan of management, you agree with me, has a clear list of passive activities? WITNESS HAYDEN: It does. SMITH: All right. That's not confusing. WITNESS HAYDEN: It's a comprehensive list, yes. SMITH: You and I know what finger painting is? WITNESS HAYDEN: We do, but I think that there was a couple of items within that list that may have transgressed between passive and active. So‑‑ SMITH: Okay, all right. If I misunderstood your answer, I thought we were all comfortable that that list was squarely passive. WITNESS HAYDEN: I think‑‑ STAFFORD: That was not what he said, Commissioner. SMITH: All right. Well, which one of that list do you think has a degree of confusion as to whether it's passive or not? COMMISSIONER: Dr Smith, he mentioned roleplay as one of them. SMITH: Roleplay. That's right, it was the nature of‑‑ COMMISSIONER: And I think he mentioned dining. SMITH: And dining. COMMISSIONER: I don't know if there are any others, I can't remember. WITNESS HAYDEN: Yes. No, I think that was it. SMITH: All right. So if dining and roleplaying were struck out from the list of passive activities, there would be no confusion in your view as to what is to be done passively? WITNESS HAYDEN: On the basis of that list; I think that it should probably incorporate the suggestions of the AAAC's guideline as well, if there's any difference between the two. SMITH: Well, no, I think we've got each of those. So there's painting, garden exploration, reading, block play and drawing. WITNESS HAYDEN: So they're all in there? SMITH: They are all in there. WITNESS HAYDEN: Yes. Then I'd be satisfied with that list then. SMITH: So if roleplay was block play. WITNESS HAYDEN: Yes. SMITH: And dining needs to be deleted. WITNESS HAYDEN: Yes. SMITH: So you would accept the condition of development consent that said, "The plan of management is amended to ensure dining and roleplay are not identified as passive activities," you would support that condition? WITNESS HAYDEN: Yes, I think so, yes. SMITH: Yes, all right. So there's no confusion about what is passive and what is active? WITNESS HAYDEN: No, I think it's reasonably clearly defined. SMITH: All right, and if you've spent X number of years being trained as an educator of children, that's your job and you're provided with a plan of management that says you're to do arts and crafts in this area‑‑ WITNESS HAYDEN: Yes. SMITH: That's not confusing or complex, is it? WITNESS HAYDEN: No, it wouldn't be. SMITH: And if you've said you can take 15 three to five year old children into this area, and with a number of educators in the appropriate ratios‑‑ WITNESS HAYDEN: Yes. SMITH: After arts and crafts stations have already been set up in that area, that it's not confusing to that educator with their colleagues to take those 15 children aged three to five and go and do passive activities in that area. WITNESS HAYDEN: No. SMITH: That's not confusing, is it? WITNESS HAYDEN: No, I think really the complexity arises from the distinction between active and passive, and then if you were to look at the plan of management on page 10, for instance it has a table of zero to twos, two to threes, three to fives, 12 children, 25 children, 30 children, and it says - for instance for 9.30am it says, "Outdoor activities, up to 15 children in active," and three to five years, "Outdoor, up to 15 children in active." SMITH: Yes. WITNESS HAYDEN: So that's a total of 30 children in active. SMITH: Yes. WITNESS HAYDEN: That sounds to me to be in conflict with the scenario that proposes that only 15 children be in active. SMITH: Then that's 30 children being active. WITNESS HAYDEN: Yes. SMITH: 15 are three to five and 15 are two to three. WITNESS HAYDEN: Yes, at the same time. SMITH: Yes, that's all right. WITNESS HAYDEN: So‑‑ SMITH: What's confusing about that? WITNESS HAYDEN: So the scenario that was proposed by Mr Cooper in the modelling‑‑ SMITH: Was 30. WITNESS HAYDEN: Was 30. SMITH: Well, that's even louder. WITNESS HAYDEN: No, and this is 30 children in active. SMITH: Yes. WITNESS HAYDEN: So it's the same scenario. So you were suggesting to me that the plan of management said, "No, there'll only be 15 children in active." SMITH: Yes, okay. To the extent there's any confusion - so if I go back to your appendix D."

Compliance with the Child Care Planning Guidelines August 2017 - Contention 12: Unsatisfactory centre-based child care facility amenities

I adopt the Respondent's submission that this contention has 2 aspects and I will deal with them separately. Firstly, compliance with the Planning Guidelines, particularly regarding the provision of facilities for the operation of the childcare care or satisfactory amenities for the young children and educators at the centre (Contention 12) and secondly, the separate but related issue with respect to the emergency evacuation plan (Contention 12(h), (m) and 15(a).

Amenities

The second basis for refusal relied on by the Respondent is that the Proposed Development fails to provide adequate facilities for the operation of the childcare centre, or satisfactory amenities for the young children and educators at the centre and related directly to the compliance with the Planning Guidelines, particularly regarding the provision of facilities for the operation of the childcare care or satisfactory amenities for the young children and educators at the centre.
The Applicant submits that all of contention 12 has been agreed with, which clearly is not accurate in the context of the Respondent's submissions. The main issue outstanding relates to ventilation, however I will firstly address the others.
There is agreement between the child care experts as to contention 12(i) to replace the steps with a ramp and the evidence on access relied on by the Applicant is the Access Report prepared by Jenny Desai and Farah Madon (Exhibit H), and the Joint Expert Report prepared by Farah Madon and Hamish Murray (Exhibit 7), which confirms that the Proposed Development complies with the access requirements. I have considered Ms Shepherd's concerns that entry by foot into the centre will be difficult at peak times where there are multiple families arriving, as the only access to the building for pedestrians with prams is via the lift. I accept the Applicant's submission that this concern is limited to a very small population, being those people in the local catchment that have a zero to two year old, possibly three years old, and only those that arrive on foot as pedestrians, and where the access consultants have agreed that entry was appropriate. This aspect of the contention is not sufficient to warrant refusal of the Proposed Development.
In relation to ventilation, there is agreement between the experts that an oscillating fan or air conditioning is required in the cot room (Exhibit 5 at [32]) and has been incorporated into condition CE.1. In addition, the Applicant has proposed condition AE.2 which requires amendment to the architectural plans, prior to the issue of the Construction Certificate, to include Silence Air Vents or similar vents in the walls for the purpose of inlet air [having an insertion loss of not less than 21dBA], and similar performing vents in the ceiling to achieve natural cross ventilation. I note that the acoustic experts accepted this proposal insofar as any acoustic impacts are concerned.
Condition CE.3 also provides for the following: "Prior to the issue of a construction certificate mechanical plans will be prepared by a suitably qualified mechanical engineer to ensure the mechanical ventilation (air-conditioning) relies upon air sourced externally from the building and otherwise in accordance with AS1668.2-2012"
The Respondent remains concerned that the location of the vents is to be left until later and that this is simply not appropriate in the context where this has been raised as an issue and where there is a guideline (Transcript 29 July 2021 p 180 at par [20]).
Having considered the agreements reached between the experts and the evidence before the court, I am satisfied that the proposed conditions CE.1, CE.3 and AE.2 resolve the contention regarding ventilation amenity. However, I do accept that the location or number of the vents to be included remains unknown and has not been assessed as to whether there are any impacts not related to acoustic impacts of which I am satisfied.

Emergency evacuation plan, contention 12 (h) and (m) and contention 15(a)

The final unresolved issue to be determined is whether the emergency evacuation plan is satisfactory. The Respondent notes that the emergency and evacuation plan was amended during the course of the proceedings to be the proposed plan in Exhibit M and that it differs from the plan that the child care experts considered in their Supplementary Joint Expert Report dated 4 February 2021 (Exhibit O), in relation to Contention 12 and includes at Attachment C Amended Emergency Evacuation Documentation.
Contention 12(h) and (m) in the Amended Statement of Facts and Contentions (ASOFAC) provide as follows: "12(h) This is unacceptable - it will be a complex procedure sliding devices out of the play room, into the corridor, down 2 flights of stairs and out through the front door. The appliances then need to be managed down another set of four steps then down a ramp into the street to the assembly point on a main road. 12(m) The corridor on the first floor provides inadequate circulation area for the number of children, parents/carers and staff that will require access through the corridor. This will be exacerbated during emergency evacuation drills."
Contention 15(a) in the ASOFAC appears under the heading "Inadequate Information and reads as follows" "(a) The Emergency Evacuation Plan is unsatisfactory in that the paths of exit from the rear of the site and from the internal rooms are too convoluted. This may be resolved by conditions."
The Respondent submits that the Court cannot be satisfied that the building has been designed to take account of suitable emergency evacuation procedures and the Proposed Development ought to be refused on this basis (Respondent written submissions at par 108).
At par 12 of the Supplementary JER Child Care (Exhibit O), the child care experts agree in relation to contention 12(h) that "on the amended architectural plans page 16 there is now an evacuation route from the ground floor out the rear doors and then down the eastern side of the service that does not involve the need to use the fire stairs or front entry of the service. This is our preferred option and the Emergency Evacuation Document dated May 2020 has been updated to reflect this preference."
It is helpful to set out the balance of the agreement between the child care experts in Exhibit O which continues as follows: "13. The width of all doors into class room from the corridor are 920mm wide, the side gates and exit path are all wide enough to accommodate the evacuation pram that is 83mm (sic) wide. 14. LC and WS agree that should this route be unsafe then the staggering of the groups of children to use the lift/stairs will be required. This staggering has been added to the amended Emergency Evacuation Document at attachment C. 14a. LC and WS agree that it is imperative that 2 educators are assigned to each of the evacuation prams. One in the front supporting the pram and one in the back to ensure the safety of children travelling up and down stairs. 15. In relation to (h) the emergency evacuation point LC and WS agree that the starred location in the Emergency Evacuation Documentation being in the front on 15 - 17 Lanham Road is the most appropriate and recommend that the Architectural Plans be amended to show this evacuation assembly area. 16 LC and WS agree that adults will ensure the safety of the children at all times during the evacuation including as they walk across driveways of the way to the evacuation point. 17. LC and WS agree that any new educator including casuals will be required to have thorough induction into the use of the evacuation devices and the procedures and an additional evacuation drill will be scheduled to reinforce the procedure. 18. The detailed evacuation procedure in the amended Emergency Evaluation (sic) Document clearly outlines how the mobility of children will be considered to safely leave the premises. 19. It is important before leaving the building a head count/roll call be taken at the first assembly point (either in the playrooms or on the deck outside of the playrooms) as detailed in the amended Emergency Evacuation Document at attachment C to ensure that all areas of the building are empty including cot rooms."
The Respondent submits that a number of problems remain with the emergency and evacuation plan as follows: 1. The emergency evacuation assembly area is shown in the Emergency Evacuation Diagram (p 31 Exhibit M) to be in a driveway which is contrary to the agreement reached in Exhibit O at [15]. 2. The Emergency Evacuation Diagram shows 2 evacuation options using the same colour resulting in it being impossible to distinguish between them and the differences between them is not explained in the body of the plan, including in the Onsite Emergency and Evacuation Procedures (at p 11 Exhibit M). 3. One of the options shows an emergency exit to the front of the property through the basement which will require educators to have the strength to manoeuvre evacuation devices up a flight of stairs. Ms Shepherd expressed her concern at par 56 of Exhibit 5 and Ms Campbell admits at par 47 of Exhibit 5 that it is "typical practice that emergency evacuation devices (sic) are required to be moved down steps and they are designed for this purpose." 1. Even if the list can be 'fire rated' as a safe means of exit, the staggered use of the internal stairs and lift to exit through the basement is "hardly going to be an appropriate means of egress for those people who are stuck in the queue waiting for the lift (see Ms Shepherd's evidence at Exhibit 5 [56] and [57] p 9)." 2. With 12 infants in the 0 to two group, there will be at least 2 prams and up to 4 prams if the 6 youngest in the toddler room are included, which will require 2 educators each to stagger and carry these prams up the front stairs of the property. 1. The blue path towards the eastern side of the property takes educators and children passing through the deep soil pocket shown on Drawing 06 leaving uncertain where the egress emergency path gate will be.
The Applicant relies on Conditions of consent CE7-CE11 to address the Emergency Evacuation Plan concerns as follows: "CE7. Prior to the issuing of an Occupation Certificate the Emergency and Evacuation Plan and Procedures document dated 3 February 2021 must be amended by a suitable qualified consultant and submitted for approval of the PCA. The Emergency and Evacuation Plan is to be: (a) consistent with the architectural plans as amended by changes arising from conditions of consent; (b) be prepared and implemented consistent with the NSW Rural Fire Service document 'Guidelines for the Preparation of Emergency Evacuation Plan'; (c) based on the "Emergency Evacuation Plan prepared by Baini Architects" referred to in these conditions of consent and the "Emergency Evacuation Procedures" contained in Rev 8 of the Plan of Management dated 6 January 2021; (d) is to be amended by the inclusion of a requirement that two (2) educators are to be assigned to each of the evacuation prams including a notation that one (1) educator is in the front supporting the pram and one (1) is in the back to ensure safety of the children travelling up and down the stairs. CE8. The emergency evacuation plan notation in the architectural plans and in the emergency evacuation plan are to be updated, to Council's satisfaction, prior to the issue a Occupation Certificate, to ensure that any evacuation option will be notated with a clearly identifiable colour to ensure the line of direction is clear. CE9. The aerial photo in the Emergency Evacuation Plan is to be rotated so that it has the same orientation as the evacuation floorplan CE10. The Emergency Evacuation Plan is to be updated consistent with the agreement and recommendations of Exhibit O (supplementary child care report dated 4 February 2021 to Council's satisfaction.) CE11. In addition to Emergency Evacuation Prams, the Centre is also to provide at least two (2) Baby Evacuation Aprons collectively having capacity for up to 16 babies."
I note that the Onsite Emergency Evacuation Procedures also refer to following the "route marked as the green lines from where they are located on the emergency map" (p 11 Exhibit M) and that these individual maps are not included in Exhibit M. In addition, the Baby Evacuation Aprons as depicted in Exhibit S specify that up to eight babies can be evacuated with each apron, and I note and accept the Respondent's submission that this is 'simply unreasonable'.
I accept that Pt 4.8 of the Planning Guideline requires the submission of the emergency and evacuation plan to be submitted with the development application so that the mobility of children and how this is to be accommodated during an evacuation, can be considered together with the location of a safe assembly point.
I am satisfied that in relation to the assembly point, there is clear agreement between the experts, namely the front of 15 - 17 Lanhams Road. On the other hand, I am not satisfied that there is sufficient clarity on the mobility of the children nor how this is to be accommodated during an evacuation, and I accept the Respondent's submission that this is a safety and design issue that needs to be clear and appropriate before development consent is granted.
For these reasons and those expressed throughout the judgment I conclude that the Proposed Development should be refused.

Orders

The Court orders: 1. The appeal is dismissed. 2. Development application number DA/716/2019 seeking consent for demolition works, tree removal and construction of a 67 place two-storey child care centre with basement parking (the Proposed Development) at 25 Lanhams Road Winston Hills legally described as Lot 1 in DP 503177 is refused.

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: 02 February 2022

(2004) 138 LGERA 237

At a glance

Court

Decision date

Before

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Judgment (10 paragraphs)

Parties

Cases Cited (5)