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

The Modification Application

1. On 8 September 2022 the Applicant made an application (Modification Application) to the Council to modify the Existing Consent. The Modification Application proposes an increase in the total number of children attending the centre and an increase in the total area of play space. The changes to the Existing Development originally proposed may be summarised as follows: 1. An increase in the total capacity of the centre from 38 to 42 children; 2. An increase in the number of staff from 6 to 7; 3. An increase in the area of outdoor play space by extending the play area into the Trafalgar Street curtilage; 4. Removing the existing hedges adjacent to Trafalgar Street and the corner with Garden Street; 5. Increasing the fence height to 1.8 m along the Trafalgar Street frontage adjacent to the proposed outdoor play area. This is to be achieved by installing glass panels above the existing fence.
2. At the commencement of the hearing the Applicant amended the Modification Application with the approval of the Council in accordance with ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The amended application became Ex C in the appeal. The amended application proposes to retain the existing hedges. At the site inspection the Court questioned whether part of the existing hedge, a form of Lilly Pilly which, at the time of the inspection, was covered in small dark berries was a suitable species for use in a child care centre and, later in the hearing, the Council indicated that it had ascertained that it was not. Accordingly, the Applicant indicated that it would be prepared to accept a condition requiring the replacement of the Lilly Pilly with a more suitable species.

Preconditions in the Environmental Planning and Assessment Act 1979

1. The Modification Application has been made in accordance with s 4.56 of the Environmental Planning and Assessment Act 1979 (EPA Act). Before I can determine the modification application, I need to be satisfied about the matters raised by subs 4.56(1)(a)-(d). Those matters are: (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has notified the application in accordance with - (i) the regulations, if the regulations so require, and (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
2. Section 4.56(1)(a) of the EPA Act imposes an express statutory limitation on the consent authority's power to modify a development consent. A consent authority can only modify a development consent if it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.
3. The Council did not contend that the development as proposed to be modified is not substantially the same development as the development for which consent was originally granted and I am satisfied that the development as proposed to be modified will remain "essentially or materially having the same essence" as the development originally approved: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 per Pepper J at [173].
4. In relation to s 4.56(1)(b), the Council's Statement of Facts and Contentions (Ex 1) indicates that the Modification Application was publicly notified by the Council in accordance with Part A3 of the Canterbury Development Control Plan 2012 for a period of 21 days between 21 September and 11 October 2022 and that no submissions were received.
5. In relation to s 4.56(1)(c), the Court does not have any evidence of whether the Council notified, or made reasonable attempts to notify, each person who made a submission in respect of the original development application of the proposed modification. Had the Court been able to approve the modification application, additional evidence would have been required to enable the Court to be satisfied about compliance with s 4.56(1)(c).

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

1. 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).
2. 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.
3. 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.
4. 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.
5. 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).
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).
7. 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."
8. 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).
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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).
16. 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.
17. 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.
18. 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.
19. 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)".
20. 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.
21. 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.

Orders of the Court

1. The orders of the Court are: 1. The appeal is dismissed. 2. Modification Application DA-216/2016/B to modify Development Consent DA-216/2016 for a centre-based child care facility on the land described as Lot 102 DP 1206835 and known as 29 Trafalgar Street, Belmore to permit 4 additional children and one additional staff member, to increase the size of the outdoor play area by 21 m2 and install additional glass panels above the existing external fence along the Trafalgar St frontage of the site is determined by way of refusal. 3. All exhibits are returned with the exception of Exhibits A, B, C, 2 and 7, which are retained.

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