Love Child v Canada Bay City Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167; Architectural Property Services Pty Ltd - V - Rockdale City Council [1999] NSWLEC 83

DATES OF HEARING: 21, 22 February 2007 and 2 March 2007

APPLICANT Miss G Furness, barrister instructed by Mallesons Stephen Jaques LEGAL REPRESENTATIVES:

RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 This appeal relates to Development Application No. 302/2006, which is for alterations to an existing two-storey plus basement commercial building at 181 First Avenue Five Dock for the purpose of two childcare centres. The development application was lodged with the council on 15 June 2006.

2 The two childcare centres are referred to as Centre A and Centre B. Centre A is for 46 children and will occupy the ground floor level. Centre B is for 52 children and will occupy the first floor. The centres will share the basement car park that provides 22 parking and drop-off spaces. The site falls about 3 metres towards the rear enabling at grade vehicular and pedestrian access off Cashman Lane.

3 Each of the childcare centres will have seven staff and will operate between 7 a.m. and 7 p.m.

4 The existing building was previously used for office purposes and is situated in the Five Dock business centre. It adjoins an existing Masonic Hall to the east and an under construction building to the west. To the rear across Cashman Lane are residential properties. Opposite the site in First Avenue is commercial development including a drive-through bottleshop and a hotel.

Planning and other controls Drummoyne Local Environmental Plan 1986 5 The site is zoned Business 3(a) General under the Drummoyne Local Environmental Plan 1986 ("the LEP") in which zone the proposed childcare centres are permissible with development consent. Also applicable is the Drummoyne Area Comprehensive Development Control Plan 1999 ("the DCP").

Child Care Centre Development Control Plan 2006 6 According to the respondent, the primary document relevant to the application is Council's Child Care Centre Development Control Plan 2006 ("the Child Care DCP") which became effective from 15 November 2006, several months after the lodgement of the development application. The respondent contends that the Child Care DCP is applicable given that it does not contain any savings provisions for development applications.

7 The relevant aims of the Child Care DCP provide for childcare centres that: o Are attractive and sympathetic to the streetscape; o Appropriate for the surrounding built and natural environment; o Have a minimum impact on surrounding land uses; o Encourage the provision of high-quality childcare which meets the needs of families and the community; o Encourage best practice in the planning and design of childcare centres; o Ensure that childcare centres are appropriately located on site is which have high levels of safety, security, environmental health and amenity of children; and o Encourage the sustainable development of childcare centres.

8 The general objectives of the Child Care DCP are reflective of these aims and seek the provision of high-quality childcare facilities which are designed in accordance with best practice and are compatible with neighbouring land uses. The health and well-being of children and staff is a priority. It also requires the provision of outdoor space and specifically identifies the following objectives: o O1 to ensure generous outdoor play areas that provide a variety of experiences for children including learning, play, active and quiet time and other developmental experiences. o O2 to provide outdoor spaces, which are safe, secure and functional, and enable adequate staff supervision of children at all times. o O3 to minimise noise transmission and other nuisances to the surrounding area.

9 Control C2 of the childcare DCP encourages the use of single storey buildings for the purposes of childcare centres for reasons of safety, access within the centre and access to outdoor areas. It also specifically requires that: Where a childcare centre is proposing to locate in an existing building in a commercial/business zone, the location of the childcare centre is limited to the ground floor of the building.

Relevant weight of the Child Care DCP 10 I accept that the Child Care DCP is consistent with the LEP and was prepared in accordance with the requirements of the Environmental Planning and Assessment Act 1979 ("the Act"). It was the subject of public consultation in the manner of: advertising in newspapers; notices in the council's libraries, its civic centre; and its web page. Also, over 50 childcare service providers in the Canada Bay local government area were notified. Conversely as might have been expected for a development control plan of this particular kind there was no direct consultation with any peak childcare organisation nor was there any consultation with this applicant whose application had not been determined and was directly affected by the proposed changes.

11 Taking into account Zhang v Canterbury City Council [2001] NSWCA 167 ("Zhang") the Child Care DCP must be one of the matters required to be taken into account where it should be considered as a "fundamental element" in or a "focal point" of the decision-making process. However, provided that the Child Care DCP is considered in this fashion its provisions are not necessarily determinative. It is nevertheless an important part of the decision-making process, which also involves consideration of the other matters referred to in s. 79C of the Act.

12 In Architectural Property Services Pty Ltd - V - Rockdale City Council [1999] NSWLEC 83 ("Architectural Property Services"), Lloyd J. dealt with a development application for a residential flat building that did not comply with the requirements of a development control plan. He acknowledged that a consent authority must take into consideration the provisions of a development control plan however because the subject development control plan commenced after the development application had been lodged with the consent authority it should not be given determinative weight. His Honour nevertheless found that the standards and controls in the development control plan should not be ignored and should be taken into consideration although a failure to comply with its provisions will not necessarily be fatal to the application provided that it (ie the proposal) is otherwise satisfactory.

13 The development application the subject of this appeal was lodged with the council on 15 June 2006 and the Child Care DCP became effective from 15 November 2006. Because the approach of Lloyd J. in Architectural Property Services has not been disturbed, it should be applied. Hence, taking into account the decisions in both Zhang and Architectural Property Services, the Child Care DCP continues to be a relevant matter for consideration under section 79C of the Act, albeit attracting less weight than would have otherwise been the case.

Children's Services Regulation 2004 14 The Children's Services Regulation 2004 ("the Regulations") made under the Children and Young Persons (Care and Protection) Act 1998 is applicable and sets out a comprehensive range of requirements for centre based childcare services in NSW which must be complied with to enable a childcare centre to obtain a licence to operate. There was no dispute that the proposal complies with the Regulations.

The evidence 15 On behalf of the respondent Council expert evidence was given by: o Mr S. Cooper-acoustic consultant o Ms P. Walsh-early childhood consultant o Ms N. Butler-town planner.

16 On behalf of the applicant expert evidence was given by: o Mr N Koikas-acoustic consultant o Mr D Wilson-childcare consultant o Mr B Goldsmith-town planner

17 In addition traffic and car parking evidence was provided by the Court appointed expert Mr C Hallam. The issues 18 The amended statement of issues dated 4 December 2006 was further amended during the proceedings with the following issues remaining in dispute: o Planning and design problems resulting from the proposed childcare centre being located within a commercial building with direct frontage to a busy road and opposite a hotel. o The two proposed childcare centres will occupy the same building and one of the centres will be located at first floor level contrary to the provisions of the Child Care DCP o Inadequate facilities for the children mainly in relation to the play areas, which have inadequate solar access. o Unsatisfactory car parking provision and unsatisfactory pedestrian and vehicular access resulting from the development being extended over three levels. o As a result of the provision of acoustic screens across the front of the building to meet the requirements of the acoustic experts, the impact of the development on the First Avenue streetscape.

19 In considering these issues the council was concerned that the Court should, on the basis of the evidence of Ms Walsh apply the requirements of the guidelines entitled Best Practice Guidelines in Early Childhood Physical Environments ("the guidelines") and the Child Care DCP.

20 Having considered the issues in the light of the evidence, including the site inspection I have no concerns in relation to the issues of acoustics, traffic, streetscape and the site's location in a commercial area. Nor do I have any fundamental concerns in relation to the utilisation of the three levels of this building for two childcare centres, taking into account its location in a commercial/business area. In this context the Child Care DCP requirement that the childcare centres be limited solely to the ground floor of the building should not attract determinative weight although the rationale for this requirement remains valid.

21 However, I have concerns regarding the internal design and the access arrangements within the building, particularly involving the play areas and the access within and between the car park and the two levels to be occupied by the childcare centres. Apart from these matters I am satisfied, on the basis of the evidence and experience of Mr Wilson that the layout of the two childcare centres including the activity rooms would be satisfactory for the number of children proposed.

Access within the building and car parking 22 It is plain that the majority of children will be brought to the two childcare centres by cars that will park in the basement. The children will then be required to walk or be carried or pushed in prams to the ground and first floors by utilising the two lifts in the northeast corner of the basement. The two lifts open onto the reception areas at ground and first floor levels adjacent to the stairs that connect the ground floor to the first floor but not the basement. There is a pedestrian entrance off First Avenue at first floor level. By utilising the "proposed footpath" in the car park to get to the lifts distances of between about 2 metres and about 47 metres are involved. Several car spaces are so positioned that the likely travel path will not include the proposed footpath.

23 Whilst some of the survey materials relied upon by Mr Hallam were ambiguous he was nevertheless satisfied that one car parking space per 4 children was the relevant standard and the provision of 22 parking spaces would be sufficient for this development. I do note however that the strict application of this standard would require 24.5 parking spaces. Taking these matters into account I expect that on most days in the mornings and in the afternoons and evenings the car park will be fully occupied and could be significantly congested. This congestion will be in the form of conflict between vehicles entering and searching for a parking space and departing vehicles and between these vehicles and carers with or without children moving to and from the lifts. This would be made worse if carers, again with or without children avoid the designated footpath and take a shortcut. I have reached this conclusion despite the positioning of staff parking spaces on the opposite side of the building to the lifts. Taking into account that the car park is to provide parking for the two childcare centres that are to have a total of 98 children I am not convinced that the access and egress arrangements in the car park are satisfactory especially in relation to safety.

24 Concern was also expressed that should the lifts malfunction, the only other means of access between the basement and the ground and first floors is via a fire stair in the southeast corner of the building. In this context the applicant provided advice from the lift service company to the effect that average customer requested service call-back rate is 1.8 calls per calendar year and average downtime due to repair work is four hours. Hence, very generally, each lift could be out of operation for about half a day twice a year although these theoretical outcomes are unlikely to be concurrent. Taking these circumstances into account I am satisfied that the level of service likely to be provided by these two lifts for the two childcare centres would not be unreasonable.

25 However it is obvious that should the lifts be out of service for whatever reason the fire stair will become an essential access point. Indeed in some circumstances it will be more convenient to use than the lifts, taking into account that this stair can provide a much shorter and more convenient means of access to the activity rooms at the southern end of the building where children can be dropped off.

26 It would be difficult to prevent this from occurring and security concerns would arise although such concerns could be partly obviated (in the usual manner for fire stairs) by providing a system whereby the door to the basement can only be opened from the inside.

27 Finally, in the context of building circulation, I agree with Ms Walsh that the cramped foyers adjacent to the lifts need attention. Whilst not all of the children and their carers will arrive at the same time and sign-on books will be in each activity room, the two childcare centres are of such a size as to require larger areas, particularly as it is intended that all pedestrian traffic access the centres via these areas.

28 Taken together these matters are indicative of unsatisfactory car parking and access arrangements that need to be reconsidered.

Early Childhood Guidelines 29 Ms Walsh had a number of concerns regarding these childcare centres, which in her opinion should comply with the NSW Department of Community Services ("the Department") Best Practice Guidelines in Early Childhood Physical Environments ("the Guidelines"). Despite her considerable knowledge in the area of early childhood I have decided to give significant weight to the fact that the proposed childcare centres comply with the Regulations. In this regard I agree with Mr Wilson that the Regulations should not be treated as if they comprise minimum standards and should instead be considered as appropriate standards. I have reached this conclusion notwithstanding Ms Walsh's contention that the Regulations are not based on research findings or known effective practice. Instead, taking into account Mr Wilson's considerable experience involving childcare centres, I accept his advice that the Regulations are the subject of regular review such reviews taking into account input from Departmental personnel who are "front line officers" and other stakeholders such as the Institute of Early Childhood at Macquarie University and Early Childhood Australia.

30 As for the Guidelines themselves I note that the Department describes these as being only a useful general outline of what is required for child learning and play spaces, considering these to be a dated publication that should not be read as a definitive reference in terms of the latest Regulations for children's services.

Outdoor play areas 31 Notwithstanding that the proposed childcare centres meet the requirements of the Regulations I have been persuaded by Ms Walsh, taking into account the provisions of the Child Care DCP that childcare centres should have generous outdoor play areas wherever possible.

32 Play areas have been provided in each of the childcare centres in accordance with the Regulations on the basis of 7 square metres per child and I understand that these areas will in practice normally only be used by half of the children at any one time an approach to be reflected in a management plan. Thus, at any one time about 14 square metres of play area will be available for each child. On an area basis I find this to be satisfactory.

33 However, the play areas are predominantly indoor spaces notwithstanding that each has an outdoor balcony with a relatively small area that is (vertically) open to the sky. These balconies can become an extension of the indoor areas by use of a folding door system. Whilst I am satisfied that the play areas (as distinct from the activity rooms) are sufficiently large, I do not accept that their arrangement results in the childcare centres having "generous outdoor play areas" as is reasonably sought by the Child Care DCP.

34 Mr Wilson was of the opinion that these playground areas would be highly effective and would enable children to undertake the experiences that would normally be experienced in a fully outdoor area. He did not accept, given that children typically attend childcare centres for three or four days per week that they would suffer an absence of vitamin D because of lack of limited access to direct sunlight.

35 However, I agree with Ms Walsh that the children would be disadvantaged in relation to solar access and by not being able to play whilst having an awareness of the sun and the open air. The largely enclosed nature of the play areas prevents this from happening to the disadvantage of the children and to the extent that the arrangement as proposed is unsatisfactory. In my opinion, a greater contrast between the enclosure of the activity rooms and the play areas is required.

Conclusions 36 The Child Care DCP encourages the use of single storey buildings for the purposes of childcare centres for reasons of safety, access within the centre and access to outdoor areas. In principle, subject to meeting the purpose of this requirement and the associated aims I see no reason why buildings in commercial areas such as this with more than one level cannot be utilised for the purpose of childcare centres. Irrespective of the decision in Architectural Property Services and applying Zhang, the requirement in the Child Care DCP that in a commercial/business zone, childcare centres must be limited to the ground floor of the building should not be considered as an absolute prohibition for a childcare centre on a floor other than the ground floor. Instead the purpose of this provision needs to be given careful consideration.

37 In this regard the relevant aims require an appropriate level of safety, security, environmental health and amenity of children. For the most part this development meets these requirements with the critical exception of the matters of car parking and access arrangements and the provision of outdoor space.

38 Despite my concerns about this particular design I do not accept that the building is inherently incapable of being converted for the purposes of the childcare centre. The building will need to be significantly modified so as to improve access between levels and within the car park possibly even having different access and egress arrangements for each of the two childcare centres on the two levels. Other modifications will be required, to enable greater sunlight penetration into the building. Together these requirements are likely to constrain the development to such an extent that the number of children needs to be reduced.

Orders 39 The orders of the Court are therefore that: 1. The appeal is dismissed. 2. Development Application No. 302/2006 comprising alterations to an existing two-storey plus basement commercial building at 181 First Avenue Five Dock for the purpose of two childcare centres is determined by refusal. 3. Exhibit W is retained.

      T A Bly
      Commissioner of the Court
      ljr

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