The Trustee for Giggs and Learn Trust v Canterbury-Bankstown Council

Preconditions in the State Environmental Planning Policy (Transport and Infrastructure) 2021

Section 3.22 in Chapter 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) applies to a development application for a centre-based childcare centre if the outdoor space requirements for the building or place do not comply with reg 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations (National Regulations).
Section 3.22(2) of the Transport SEPP provides that a consent authority must not grant development consent to development to which this section applies except with the concurrence of the Regulatory Authority.
Section 3.3(5) of the Transport SEPP provides: (5) A reference in this Chapter - (a) to a development application, includes a reference to an application for modification to a development consent, and (b) to development consent, includes a reference to the grant of an application for modification to a development consent.
Section 3.22 therefore applies to the Modification Application, and the Modification Application cannot be approved without the concurrence of the Regulatory Authority, if the outdoor unencumbered space to be provided does not comply with reg 108 of the National Regulations.
Regulation 108 of the National Regulations provides: 108 Space requirements - outdoor space (1) This regulation does not apply in respect of a family day care residence. (2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space. Penalty: $2000. (3) In calculating the area of unencumbered outdoor space required, the following areas are to be excluded - (a) any pathway or thoroughfare, except where used by children as part of the education and care program; (b) any car parking area; (c) any storage shed or other storage area; (d) any other space that is not suitable for children. (4) A verandah that is included in calculating the area of indoor space cannot be included in calculating the area of outdoor space. (5) An area of unencumbered indoor space may be included in calculating the outdoor space of a service that provides education and care to children over preschool age if - (a) the Regulatory Authority has given written approval; and (b) that indoor space has not been included in calculating the indoor space under regulation 107. (6) In this regulation a reference to a child does not include - (a) a child being educated or cared for in an emergency in the circumstances set out in regulation 123(5); or (b) an additional child being educated or cared for in exceptional circumstances as set out in regulation 124(5) and (6).
Section 3.23 of the Transport SEPP also applies. That section provides that, before determining a development application (which expression includes a modification application - see par [13] above) for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development. The applicable Child Care Planning Guideline (Guideline) was published in the New South Wales Government Gazette, No 501, 1 October 2021 (Ex D).
The Guideline deals with outdoor space requirements in Section 4.9. After setting out the requirements of reg 108 (reproduced at par [15]), the Guideline provides what is described as "Design Guidance" as follows: "Calculating unencumbered space for outdoor areas should not include areas of dense hedges or plantings along boundaries which are designed for landscaping purposes and not for children's play (refer to Figure 9 and 10). When new equipment or storage areas are added to existing services, the potential impact on unencumbered space calculations and service approvals must be considered."
Regulation 108(2) of the National Regulations requires an area of 7 m2 of unencumbered outdoor space to be provided for each child being educated and cared for at the centre. If the Modification Application is approved, there will be 42 children being educated and cared for at the development. For this number of children, the centre must provide 294 m2 of unencumbered outdoor space (42 x 7).
The Modification Application (Ex C) indicates that the development, as proposed to be modified, will provide 297.04 m2 of outdoor play area. This area comprises the outdoor play area in the Trafalgar Street curtilage of 14.5 m2, the outdoor play area in the Garden Street curtilage of 226 m2, and the outdoor play area at the rear of the Site of 56.54 m2. This makes up the total of 297.04 m2 which, on its face, satisfies the requirements of reg 108.
However, it is clear from the evidence, and I so find, that in its calculation of the unencumbered outdoor space, the Applicant has included areas that reg 108 requires, and the design guidance in Section 4.9 of the Guideline advises, should be excluded from the calculation. These areas were the subject of evidence from the parties' planning experts: Mr Chapman for the Applicant and Mr Betros for the Council. This evidence comprised a joint expert report (Ex 2) and supplementary oral evidence.
In oral evidence Mr Betros identified 9 areas which he said had been included in the Applicant's calculation but which he said should have been excluded. These were: 1. The brick pier intrusion into the play area along the Garden Street frontage; 2. Columns and shade sail posts; 3. Corrugated vegetable gardens under the verandah; 4. Internal hedging shown in Figure 14 of the joint expert report (Ex 2); 5. Planting along the rear wall adjoining the neighbouring duplex; 6. Planting adjacent to the sandpit on the Garden Street frontage; 7. Planting adjacent to the bike track on the Garden Street frontage; 8. Internal hedging straddling the handrail shown in Figure 14 of the joint expert report (Ex 2); and 9. The ramp.
Regulation 108(3) of the National Regulations provides that the area of any pathway or thoroughfare must be excluded from the calculation of total unencumbered outdoor play area, except where used by children as part of the education and care program. The area included in the Applicant's calculation clearly includes the ramp that will provide access to the proposed extended outdoor play area in the Trafalgar Street curtilage. This is shown on Ex C to have an area of 6.6 m2.
Mr Chapman gave evidence, both orally and at paragraph 33 of Ex 2, that the proposed landing and ramp could be used for outdoor play and therefore can be included in the calculation of unencumbered outdoor play area. However, the Court prefers Mr Betros' evidence that the ramp must be excluded from the calculation. My own assessment is that the location of the ramp, especially with the proposed handrails on both sides, means that it is no more than a thoroughfare joining the play areas and cannot be considered to be an area forming part of the education and care program at the centre.
With an area of 6.6 m2, the exclusion of the ramp from the calculation of unencumbered outdoor area means that the development does not meet the minimum requirements of reg 108.
It is unnecessary for the Court to determine whether each and every other item included in Mr Betros' list (at par [22] above) should be excluded from the calculation must be. I will, however, observe that the corrugated iron vegetable beds seem to serve a useful role in relation to children's play and, in my view, are properly included in the calculation of outdoor unencumbered play area. Most of the other items in the list at par [22] comprise plantings and hedges and, in my view, should be treated as either "other space that is not suitable for children" and excluded from the calculation by reg 108(3)(d) or are areas of dense hedges or plantings along boundaries which are "designed for landscaping purposes and not for children's play" and should therefore not be included having regard to the Design Guidance contained in Section 4.9 of the Guideline (which the Court is required to take into consideration pursuant to s 3.23 of the Transport SEPP).
Mr Chapman suggested (Ex 2, paragraph 34) that, if the Court finds that the landing and ramp must be excluded from the play area, the development could be further modified by changing the levels between the play areas and deleting the ramp, although he accepted that this would require an updated plan.
The Applicant in final submissions adopted a similar approach suggesting that various items could be modified to bring about compliance with reg 108 and the Guideline, such as the removal of hedges and landscaping.
While it may be possible for the Applicant to modify aspects of the development to achieve compliance with reg 108, the Court must determine the Modification Application as it presently stands and not on the basis of further possible modifications, described only at a level of detail that makes the assessment of their likely impacts impossible. The Modification Application as it presently stands, in my view, will not provide 7 m2 of unencumbered outdoor space for each child being educated and cared for at the centre.
The Applicant also submitted that the Court should accept that the Existing Development meets the requirement for 7 m2 of unencumbered outdoor space for each child and therefore contains 266 m2 of unencumbered outdoor space. As the requirement if the Modification Application is approved is for 294 m2, the Applicant needs to provide an additional 13.5 m2. The Applicant submits that the Modification Application provides this amount of unencumbered outdoor space. The Applicant says that the Council is asking the Court to reconsider the calculation of the existing play area "which has already determined as adequate by the enforcement authority (Department of Education)".
I cannot accept this submission. I am prepared to assume (as I should) that the Existing Development complied with the requirement for 7 m2 of unencumbered outdoor space for each child at the time the Existing Consent was granted. It is clear, however, that some aspects of the Existing Development, such as the landscaped areas, have changed in the time that has passed since and the evidence before the Court makes it clear that the Modification Application in its current form will, not provide 7 m2 of unencumbered outdoor space for each child being educated and cared for at the facility, as required by reg 108 of the National Regulations.
As the Modification Application does not comply with reg 108 of the National Regulations, s 3.22 of the Transport SEPP applies and, in accordance with s 3.22(2), the Court cannot approve the Modification Application except with the concurrence of the Regulatory Authority. As that concurrence has not been given, the Modification Application must be refused.

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Judgment (8 paragraphs)

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Cases Cited (1)