Universal Childcare Pty Limited v Pittwater Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167; Love Child v Canada Bay City Council [2007] NSWLEC 164

DATES OF HEARING: 06/06/2007 and 07/06/2007; 14/06/07 additional information.

APPLICANT Mr C. McEwen, SC Instructed by Mr M. Staunton and Mr A. Whealy of Gadens Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Clay, barrister instructed by M. Jaku of Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10003 of 2007 Universal Childcare Pty Limited v Pittwater Council

JUDGMENT 1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Pittwater Council of a development application for a 66 place childcare centre at 17 Seabeach Avenue, Mona Vale.

2 The proposal is for the partial demolition, alterations to the existing building originally built as a squash court centre and subsequently used as a gymnasium to accommodate a childcare centre with parking for 8 vehicles three of which are designated for staff parking.

3 The Statement of Environmental Effects provides a breakdown of the ages as 30 childcare places in the 0-2 year olds, 16 for the 2-3 year olds and 20 places for the 3-5 year olds.

Site and Environs 4 The subject site is Lot 8 in Section H DP 7522 and it is located on the southern side of Seabeach Avenue that provides access to the site. The site also has a rear boundary to Terrol Crescent however no access is proposed from Terrol Crescent apart from an emergency exit. The dimensions of the site are 15.24 metres for the boundaries with the streets and the side boundaries are some 61 metres. The site is relatively flat with a gradual fall towards Seabeach Avenue.

5 The premises are located in a predominately residential area characterised by multi-unit housing developments and single dwelling houses. There is a childcare centre in operation diagonally opposite the subject site.

6 I note that the Norfolk Island Pine trees in Seabeach Avenue are included as a heritage item under the Local Environmental Plan. These trees are planted in the road reserve verge and make a significant contribution to the streetscape and character of the area. However, there are no trees outside the subject site and there is no objection to the proposal from a heritage point of view. Issues 7 In its Statement of Issues the respondent identified a number of issues however by the time the matter was heard many of these were no longer contested. The issues contested by the respondent are: 1. Inadequate Parking The proposed childcare facility fails to provide necessary and accessible on-site parking that would be generated by its use. Particulars (a) The facility must provide the minimum parking requirements in accordance with the Road and Traffic Authority "Guide to Traffic Generating Development" that requires a minimum of 1 space per 4 children. The development proposal is for a 66 place childcare centre which would require 17 car spaces. The development proposal only provides for 8 cars, leaving a shortfall of 9 car parking spaces on the site. (b) Pittwater 21 DCP Section B6.5 off-street vehicle parking requirements. Accessible car parking spaces have not been provided in accordance with Pittwater 21 DCP.

(c) The proposed development does not provide for parking for people with disabilities as required by Pittwater 21 DCP. 2. Residential Amenity The proposed use will have adverse noise consequences for adjoining residential properties and steps proposed to ameliorate those impacts will have an adverse impact on users of the centre. 3. Internal amenity The development in its current form fails to provide a quality childcare centre in terms of the appropriateness of the play spaces and light, ventilation and heating.

Statutory Planning Framework 8 The subject site is zoned Residential 2(b) - Residential B pursuant to Pittwater Local Environmental Plan 1993. In this zone any purpose is permissible with consent other than the prohibited uses. The prohibited uses include: bulk stores; car repair stations; commercial premises; industries; institutions; motor show rooms; places of assembly; recreation areas and establishments; residential flat buildings; retail plant nurseries; shops and warehouses. 9 With consent, dual occupancy development and multi-unit housing are permissible in the zone and residential flat buildings in accordance with the multi-unit housing map. 10 Pittwater Development Control Plan No. 21 is also a relevant matter to take into consideration. This provides for guidelines for localities and each locality contains an area recognisable as distinct in terms of its land uses, geography and social character.

11 The subject site is in the Mona Vale locality and the description includes:

…Low density residential development is built along the valley floor and slopes to the north, south and west of the locality…The residential areas of a diverse style and architecture, a common thread being a landscaped treed frontages and subdued external finishes. Medium density housing adjoins the Mona Vale centre on Mona Vale Road, and extends along Darley Street, Park Street, Pittwater Road, Terrol Crescent and Golf Avenue… Desired character The Mona Vale locality will remain characterised by a mix of residential, retail/commercial, industrial, recreational, community and educational land uses in a natural landscaped setting. Existing residential areas will remain primarily low density characterised by one and two storey residences in a natural landscape setting, intersperse by compatible land uses where appropriate. Dual occupancy development will generally be located on the valley floor and lower slopes…

12 The DCP contains guidelines for off-street vehicle parking requirements and section B6.5 is relevant to the assessment of the development application. The outcomes identified in the DCP are: o To ensure an adequate number of parking and service spaces are provided by all development to meet the demands generated by the development. o To ensure functional parking is provided to all developments that minimises rain water runoff and adverse visual or environmental impacts while maximising pedestrian and vehicle safety both on the site and on the public road." 13 The on-site parking requirements for childcare facilities are not specifically identified. The table requires one space per 40 metres square (gross floor area) for business development and commercial purposes. For development not scheduled in the table the guidelines state : o the minimum number of vehicle parking requirements must be determined using appropriate guidelines for parking generation and servicing facilities based on development type or comparison drawn with regard to similar developments. o Provision must be made within the development for access and parking for all service vehicles servicing the development. 14 Parking for people with disabilities is required at the rate of one space for this application under consideration. Evidence 15 The Court met on-site the first morning of the proceedings and heard from some 25 people and this represents about half the objectors in attendance. Many of who are local residents and are opposed to the proposed development. In summary their concerns are that Seabeach Avenue is a busy narrow street and the increased traffic and parking associated with a childcare centre with 66 places, that does not provide the required parking on site, would create adverse impacts. Many residents also raise the fact that there is an existing childcare centre in close proximity opposite the subject site and the combined effect of the two facilities would create unacceptable parking and congestion in the street. Other objectors identified the safety for children as a concern, given their unpredictable behaviour, because of the width of the street and congestion. The objectors also identified the suitability of the site in terms of inadequate outdoor playing areas. An adjoining neighbour is in favour of the development and considers that a childcare centre would be an improvement over the previous use of the premises as a gymnasium. He also considered that there is kerbside parking available in the street.

16 The respondent also provided copies of written submissions from objectors and I have considered these in my assessment. 17 For the applicant evidence was given to the Court by: Ms Amy Firth, a childcare consultant; and Mr Andrew Darroch, a consultant town planner. On behalf of the respondent council: Mr Lindsay Godfrey, Manager of Community and Library Services at Pittwater Council; and Ms Sarah Winnacott, development assessment planner, gave evidence to the Court.

18 Mr Stephen Cooper, acoustic consultant and Mr Timothy Rogers, traffic consultant are both Court-appointed experts in the proceedings.

Acoustics 19 Mr Cooper in his statement provides the following comments: The acoustic assessment provided at the Development Application stage was inadequate and did not have appropriate acoustic material to permit a review to be undertaken.

Measurements I and my staff have undertaken at the site have found ambient background levels similar to that suggested at the DA stage.

Unattended and attended measurements have been conducted to accord with the INP requirements for a "high risk" development and are annexed to this report.

For my analysis I have used measurements of free play recorded at the Universal Child Care premises at Coogee where I found operations and noise levels that are similar to previous investigations I have undertaken.

From the ambient measurements results an acoustic assessment of the proposal as submitted to Council revealed the development would not comply with the background + 5 dB(A) criterion at nearby residential occupancies.

I have recommended modifications to the application to address the acoustic issues and am instructed the Applicant is prepared to accept the modifications to the development as discussed with the expert planners on 23rd May 2007. Arising from that meeting there is a required to amend the draft Plan of Management to restrict the usage of the rear outdoor play area to 0-2 year olds.

During the preparation of this report (after the meeting with the planning experts) I have found the plans indicate an opening on the western facade for the rear play area that is shown in a plan view but not in an elevation. If this opening is required for light purposes then the opening shall have fixed glazing installed. I consider the brush fence at the front of the property should be replaced with lapped and capped timber so as to provide acoustic shielding of the car park to the adjoining property to the west.

With the noise control measures that have been accepted by the Applicant and the two additional matters identified in the previous paragraph in my opinion compliance with background + 5 dB (A) can be achieved…

I recommend a condition of consent be imposed (if the Court was to grant approval) requiring all noise emission from the site (including children play activities, car park operations and mechanical plant) not to exceed background + 5 dB(A) when assessed as an Leq (15 minutes) at any point on the adjoining residential properties. 20 When questioned as to whether there was a need to close doors and windows Mr Cooper responded that it is marginal and there could be a condition attached to close doors and windows for noisy activities. Mr Cooper also explained the requirements for the duration for free play and the noise that is generally accepted. That is for 1.5 hours of free play the background plus 10dB(A) and for 2.5 hours of free play it is background plus 7dB(A) and above 2.5 hours of free play the background plus 5dB(A) is the relevant standard.

Findings on acoustics 21 I am satisfied with the conditions recommended by Mr Cooper that the issue of noise can be managed such that the child care centre will not have a significant impact on the amenity of the residential area and the measures required to ameliorate the level of noise will not impact on the children attending the centre.

Landscaping, bulk and site coverage 22 The planners prepared a joint report and it was agreed that the provision of canopy trees will provide adequate landscaping of the front setback area to soften and partially screen the built form. The experts agreed that this is an appropriate balance between the need to provide on-site parking and a landscape screen.

The planning experts agreed that the existing building does not comply with the 50% site coverage requirements of the Pittwater 21 DCP.

Findings 23 In my assessment of the existing built form and alterations and additions proposed I am satisfied the adaptive re-use of the building is appropriate and the proposed development will not be an aberration in the streetscape. It will continue to read as a commercial building, however, the scale bulk and height are not unreasonable in the context of surrounding development. Furthermore I agree with the planners that with the provision of canopy trees this represents an appropriate balance between the need to provide on-site parking and soften the built form.

Traffic and Parking 24 Mr Rogers provided a preliminary view of traffic issues as follows:

I agree that the traffic and parking effects of the proposed childcare centre would be less than the previous use on the site. However, the proposed childcare centre is a new development and in my view should accommodate as much as practical its parking requirements on site. Some minor overflow may be acceptable (along the frontage of the site) providing that there is available on street parking. On this basis the applicant should provide more justification for the shortfall of 8 to 9 spaces.

I note that the applicant has only undertaken an assessment of the afternoon traffic and parking conditions. In my view an assessment of the morning conditions should be undertaken. Thus in summary my preliminary view is that: * Further justification is required to support the shortfall of parking; * Additional information is required on morning traffic conditions to determine whether the proposed development would result in adverse traffic and parking effects. 25 Mr Rogers in his May 2007 report on Traffic and Parking provided the following comments: Road Network 2.3. Seabeach Avenue is a local street, some nine metres wide, with one traffic lane and one parking lane in each direction. When two cars are parked opposite each other, Seabeach Avenue provides for two cars travelling in opposite directions to pass each other providing they are travelling at low speed. Where circumstances permit, generally one car would pull over to allow a car travelling in the other direction to pass.

Traffic Flows 2.4. A survey of traffic flows along Seabeach Avenue was undertaken during the weekday morning (7.15 to 9.30am) and afternoon (4.00 to 6.00pm) peak periods. The survey found that Seabeach Avenue carried peak traffic flows of some 75 vehicles per hour (two way) during the morning peak period and some 80 vehicles per hour (two way) during the afternoon peak period.

2.5. These are low traffic flows consistent with Seabeach Avenue's function as a local street.

Parking 2.10. A survey of existing parking demand on Seabeach Avenue within 50 metres of the site was undertaken by Traffix in the morning (7.00am to 9.00am) and afternoon peak periods (4.00pm to 6.00pm). This survey found that there are some 31 parking spaces within 50 metres of the site. The survey found a peak occupancy of some 14 spaces in the morning peak period and some 17 spaces in the afternoon peak period. These results are similar to my observations of parking conditions in the area.

2.11. A survey of existing parking demand associated with the Mona Vale Kindy was undertaken during the morning peak period. This included on site and on street parking associated with the kindergarten. The survey found a peak parking demand of 11 spaces (5 on site and 6 on street).

Issue 2 - Parking 2.12. Issue 2 relates to whether the parking provision of the proposed childcare centre complies with the RTA requirements and the provision of appropriate parking for people with disabilities (as required by Pittwater 21 DCP). The Roads and Traffic Authority "Guide to Traffic Generating Development" requires a minimum of I space per 4 children. Applying this rate the proposed development with 66 child care spaces would require 16 to 17 parking spaces. The proposed provision of eight spaces results in a shortfall of eight to nine spaces compared to RTA requirements.

2.13. By way of comparison the existing kindergarten located opposite the subject site was found to have a peak parking demand of 11 spaces. With 45 places for children this results in a rate close to I space per 4 children. This is similar to that suggested by the RTA Guidelines.

2.14. The applicant has suggested that the shortfall in on site parking is acceptable as on street parking demand associated with the proposed child care centre would be less than the gym and could be accommodated within the existing on street parking supply. I note that Council has indicated that the previous use on the site had not been approved by Council.

2.15. I agree that the on street parking demand of the proposed childcare centre would be less than the previous use on the site and that the shortfall of eight to nine spaces could be accommodated on street. Some overflow may be acceptable providing that there is available on street parking.

2.16. The surveys of on street parking demand found a surplus of some 14 to 17 .spaces in the morning and afternoon peak periods within 50 metres of the site. Thus the shortfall of eight to nine spaces could be accommodated with a surplus of five to nine spaces.

2.17. Thus the shortfall in parking is considered acceptable as it can be satisfactorily accommodated on street in close proximity to the site, and maintain a surplus of on street parking. This approach is consistent with RTA Guidelines , which note that:

"Consideration could be given to reducing the parking required if convenient and safe on street parking is available (e.g. indented parking bays), provided that the use of such parking does not adversely affect the amenity of the adjacent area. "

2.18. Section B6.5 (iv) of Pittwater 21 DCP sets out parking requirements for people with a disability:

Traffic Effects 2.21. The traffic generated by the proposed development will have its greatest effects during the weekday morning and afternoon peak periods. Based on the traffic generation rates for child care centres set out in the Roads and Traffic Authority guidelines (0.7 to 0.8 trips per child), the proposed childcare centre at 17 Seabeach Avenue would generate some 45 to 55 vehicles per hour (two way) in the peak periods. This would result in an additional 25' to 30 vehicles per hour (two way) in Seabeach Avenue. With the additional development traffic, Seabeach Avenue would carry some 100 to 110 vehicles per hour (two way) in the morning and afternoon peak periods.

2.22. By way of comparison the existing kindergarten located opposite the subject site was found to have a peak traffic generation of 45 vehicles. With 45 places for children this results in a generation rate of I trip per child. This is slightly higher than that suggested by the RTA Guidelines. Application of this rate to the proposed development results in a peak traffic generation of some 65 vehicles per hour (two way) in the peak periods. This would result in an additional 30 to 35 vehicles per hour (two way) in Seabeach Avenue. With the additional development traffic, Seabeach Avenue would carry some 105 to 115 vehicles per hour (two way) in the morning and afternoon peak periods.

2.23. With traffic from the proposed development (based on RTA guidelines or surveys of the existing kindergarten), traffic flows in Seabeach Avenue would remain less than the RTA's environmental goal for a local street. Therefore the traffic from the proposed development would not have significant adverse effects on the surrounding area.

Summary 2.24. In summary, it is my view that: o the shortfall in on site parking can be accommodated on street; o the proposed parking provision for people with a disability is considered appropriate; and o the minor increase in traffic would not have significant effects on the amenity of the surrounding road network. Assessment and Findings on traffic and parking 26 In addition to the above report Mr Rogers gave evidence in Court . He remains of the view that the proposal is satisfactory with the provision of 8 car parking spaces on site as opposed to the requirement under the RTA Guidelines of 17 car parking spaces. This is because in his opinion there is spare capacity of spaces in the street. That is, the kerb side of the Seabeach Avenue provides for safe and convenient parking to justify a departure from 17 spaces required by the RTA guidelines. In his opinion the 'safe and convenient' calls up an assessment of such factors as: distance from centre; the nature of the road; the volume of traffic; footpaths ; and ease of crossing road.

27 When questioned as to the fact there is no footpath on the northern side of the road Mr Rogers responded that in these circumstances the absence of the footpath on the northern side of the road was not a weighty criteria. He was also questioned as to whether the demand on the street would meet the overflow within 50 metres and he stated that for a short period after 5pm the shortfall would not be met, by one, within 50 metres, having regard to 25 spaces and the availability of these in the survey, exhibit G. However, an equivalent number of available spaces on the street are also found between 50 and 100 metres and he considers this distance to be also safe and convenient. 28 In Exhibit G, Mr Pindar for the applicant, provides a survey based on a 31 space capacity within 50 metres. Mr Davies an officer with the council prepared a plan to show that there are 23 parking spaces within 50 metres of the subject site 11 on the south side and 12 on the north side of the road. . As such between 5 and 6 pm the short fall of 9 parking spaces would not be met, with the exception of one 15 minute period.

29 When Mr Clay questioned Mr Rogers that there would be no excess / available spaces on the street at peak times he responded that in the worse case there would be only one but this is for a short period only. However, he said there is an equivalent number of spaces from 50 to 100 metres from the site with a similar availability rate. 30 Mr Pindar and Mr Rogers consider 100 metres to be a safe and convenient distance however the nature of a childcare centre is that parents would park as close as possible because of holding hands, carrying or pushing, possibly more than one child, and bags etc. The plans provide for a demarcated separate pedestrian access to minimize the conflict of vehicles and pedestrians.

31 It was pointed out by an objector that the original survey undertaken on the availability of on-street parking in the vicinity of the site was undertaken during the school holidays on the 5 July 2006. : Mr Rogers also agreed with Mr Clay that the survey taken during the school holiday period would not be statistically reliable however there were two other days in May that were not during the school holiday period.

32 Mr Rogers had initial concerns about the amount of on-street parking in his preliminary assessment and he commented that there is a preference for parking to be on-site. After further examination he concludes the shortfall in on site parking can be accommodated on street and the minor increase in traffic would not have significant effects on the surrounding road network. 33 I raised a number of questions about the availability of parking spaces in the street and I am inclined to accept the council's survey figure of 23 as being more accurate as opposed to 31 as shown by the applicant's consultant. Mr Rogers considers a spare capacity for kerbside parking to be 25.

34 In the Statement of Environmental Effects of October 2006 and the traffic report prepared by Traffix of September 2006 there is a great deal of reliance on, and comparison with the previous use of the premises for a gymnasium in terms of traffic generation and car parking requirements. However, the previous use, whether approved or not, is not a relevant matter in my consideration of the traffic and parking issue for the childcare centre. I must assess the application against the planning regime. That is the DCP and the LEP.

35 I refer to the Court of Appeal judgment of Zhang v Canterbury City Council [2001] NSWCA 167 that establishes in paragraph 75 "DCP… had to be considered as a 'fundamental element' in or a 'focal point' of the decision making process". At paragraph 74 his Honour states: A development control plan is not in "environmental planning instrument" (see definition in s4). Accordingly, the requirements in s 80 (2) that consent authority ":must refuse" an application that would "result in a contravention of" all such instruments does not apply to a development control plan. Furthermore, the proscription by s 76B, of any development prohibited by environmental planning instrument, does not extend to a prohibition in development control plan. Nor can such a can contain a non discretionary development standard which, if complied with, would take away a consent authority is discretion under s79C (2). 36 In my assessment of this application the provisions of the DCP are a central focus. The guidelines for off street parking provide for outcomes and are cited above. In summary, parking should be provided to meet the demands generated by the development and parking is functional while minimising adverse visual or environmental impacts and maximising pedestrian and vehicle safety both on the site and on the public road. While the required number of spaces is not identified in the DCP it must be determined using appropriate guidelines and in this regard the RTA guidelines are relevant to my assessment. These guidelines provide for consideration to reducing the required parking if convenient and safe on street parking is available and such parking does not adversely affect the amenity of the adjacent area.

37 I have carefully considered the concerns of the residents and the other objectors who gave evidence at the site inspection. I also have the benefit of observing the physical characteristics of the road and the evidence of the experts on site and in Court where there was the opportunity of further inquiry and questioning. 38 Mr Rogers concludes that the deficiency in on site car parking is justified in the circumstances of this case. Even if he takes the lower number of available 'on-street' parking spaces to be 25 he considers the parking to be safe and convenient and justifies providing only 8 spaces on site, one disabled space and 4 other spaces for parents and carers and 3 for staff.

39 On the basis of the evidence before me I have concluded that the deficient number of car parking spaces on the site does not warrant refusal of the application. In my merits assessment I have given central consideration to the DCP and I accept the evidence of Mr Rogers.

40 In my assessment, the requirement of the DCP to use appropriate guidelines, and in this case the RTA provision, that on site parking may be reduced for childcare centres in certain circumstances is satisfied . As

41 such I am also satisfied the outcomes identified in the DCP are met. While there was a great deal of concern expressed by the local residents there is no expert evidence or facts presented to the Court that persuades me that I should not accept the evidence of the experts.

42 I accept the availability of spaces is more accurate on the council's officer's plan however, even factoring this in, the shortfall is more than met a short distance beyond the 50 metres. I accept Mr Roger's evidence that parents will naturally park as close as possible but he considers up to 100 metres still represents safe and convenient parking in the context of the circumstances of this site. The parking availability was undertaken having regard to the existing childcare centre opposite and as such the cumulative impact of the centres is factored into the analysis of the experts. 43 Mr Rogers states the road from kerb to kerb is some 9 metres wide and in his opinion the proposed development is accommodated and within the capacity of the road network. From the extract from his statement above about the capacity of this local road and the number of cars generated leads me to accept that the proposal is well within the capacity and limits of the road.

44 To ensure the efficient turnover of 'on-site' spaces during the peak morning and afternoon periods the Plan of Management is amended to require 10 minute parking at these times for the designated spaces. Furthermore in my assessment it is prudent to limit the number of events/open days held at the centre to be confined to the different age groups at any one time and a limited number of 3 per annum. Accordingly the Plan of management has been amended.

Amenity of Centre 45 Ms Firth and Mr Godfrey prepared a joint statement of evidence that includes the following: AGREED A Ventilation and heating

• It was agreed that this would not be an issue subject to a condition of consent requiring reverse cycle air conditioning for all indoor spaces on the ground and first floor.

Comments from Respondent Expert Witness - Lindsay Godfrey

The NSW Children's Services Regulation states Clause 43 (1) "The premises of a children's services must have access to natural light when children are being provided with the service. "

All downstairs activity rooms receive light only via the under roof play space. There are no windows on the eastern walls of activity room 1 or activity room 2 or on the western walls of activity room 3.

Any natural light penetrating these internal activity rooms via glass doors will do so only after passing through the `outdoor' play spaces located underneath the floor above.

It is my opinion that it is unlikely there would be insufficient natural light to the three ground floor activity rooms.

I therefore recommend that a Solar Gain Analysis be provided for the three activity rooms on the ground floor.

Comments from Applicant Expert Witness - Amy Firth 7. In relation to natural light, the centre appears to have been designed to ensure utility areas, cot rooms, etc have been located in the middle of the centre where there would be a lack of natural sunlight. 8. The children's activity rooms both upstairs and down stairs have been located at the north and south ends of the building with greater access to natural light.

9. At the time of my meeting with Lindsay Godfrey I did not have sufficient information in relation to types of walls that would be in the centre.

10. Since that meeting, I have been informed by my client that the walls downstairs between the outdoor play areas and indoor activity rooms are glass. 11. As both the external walls at the north and south ends of the centre have been designed with large glass doors I believe natural light would penetrate into the activity rooms.

C. Appropriateness of play spaces - Internal and External Comments from Respondent Expert Witness - Lindsay Godfrey

The Statement of Environmental Effects submitted by the Applicant states that the proposal is in the public interest because of the following:­

"(i) The high demand for children to be cared for at Mona Vale and the surrounding suburbs and (ii) The use will provide a high quality child care facility that can be utilised by the community."

While there is some shortage of childcare in Pittwater, especially for children under the age of 3 years, there should be no compromise on the quality of the built spaces utilised, in order to redress this gap. I fail to see how a `high quality child care facility' can result from this proposal. Child care centres should provide a built environment that fosters a child's curiosity and appreciation of the natural environment, provides natural light, areas of filtered sunlight and opportunities to interact with the natural environment.

Pittwater Council and its community pride itself on its natural environment and child care facilities that reflect these values must be a high priority for children. This proposal does not demonstrate that children will have opportunities to experience and enjoy the natural environment in a number of respects.

The great majority of the outdoor' play space' for children under the age of 2 years is underneath the floor above. For children under the age of 2 years there is just one area at the rear of the building that is completely outside. This will provide some limited opportunity, due to overhanging trees for children to see the natural environment. One group of children using activity room 1 will have access only to outdoor' play space which is under a roof.

This one outdoor area at the rear of the development is however south facing and particularly in winter is likely to be cold and damp due to its aspect combined with the confined space and 1.8 metre high fences.

The plans for the centre also show that for children aged 2 years to 5 years is the `outdoor play space' is in the open air however it is located on the first floor of the building. 18. In an area such as Pittwater, where there is suitable land, all children should have opportunities to play in a more natural environment than the first floor of a building albeit in the open air.

19. The recommendations of the Noise Assessment Report require that fully sealed fences of 1.8 metres are erected on the eastern, southern and western boundaries of the property. Additionally fences around the upper floor outdoor play area are required to be fully sealed to height of 1.5 metres. This will effectively prevent children from seeing outside the immediate environment of the building site.

20. There is nothing that I can identify in the indoor plans that would make the indoor activity areas inappropriate for a quality childcare centre.

21. I have not seen a landscaping plan for the site, however I believe the outdoor space has the potential to be turned into an appropriate and licensable space for children which is safe an complies with children's services regulations. 46 The Children's Services Regulation 2004 includes the following : 30 Space requirements: centre based children's services (4) Subject to subclauses (7) and (8), the premises of a centre based children's service must have at least 7 square metres of useable outdoor play space per child that is exclusively for the use of children provided with education and care while in attendance at the service. (7) If the Director-General is satisfied that the location of a centre based children's service makes it impracticable to provide the required amount of useable outdoor play space, the Director-General may consent to the provision of some or all of that space in an indoor area that is to be designed and equipped to permit children to participate in activities that promote gross motor skills. (8) The Director-General may impose conditions on such a consent relating to any matter the Director-General sees fit, including the availability of natural light and ventilation.

Ventilation, light and heating (1) The premises of a children's service must have access to natural light and must be properly ventilated, lit and heated when children are being provided with the service. (2) All heating and cooling units on the premises of a children's service must be adequately secured and guarded to prevent injury to children through contact with hot surfaces or moving parts or the emission of any sparks or flames. (3) The controls of all equipment on the premises that may be hazardous to children must be guarded to prevent access by children. (4) Fans on the premises or the home must be placed in a position that is inaccessible to children. Part 6 Licence conditions-operational requirements (2) The authorised supervisor of a children's service must ensure that there is provided a program of activities that:

(a) balances indoor and outdoor experiences, and (e) allows children to freely select experiences, and (f) is appropriate to the development of children. 47 Ms Firth and Mr Godfrey were questioned on the appropriateness of the premises for a childcare centre. Ms Firth stated that if the premises are capable of being licensed in terms of the regulations and therefore in her opinion the development approval should be granted.

48 On the other hand Mr Godfrey is of the opinion that the proposal would not represent a good outcome. He considers that the first floor outdoor play areas are not appropriate and this represents the only outdoor play areas for the 3-5 year olds. In his assessment the space is significantly enclosed albeit with some glass and in the Pittwater Local Government Areas he considers that outdoor play spaces should be at ground level with greater amenity than proposed in the application. Ms Firth said that whilst there may be a preference for at grade outdoor open space the proposal satisfied the regulations and provided a safe outdoor area upstairs and that in commercial centres such spaces are found at upper levels. 49 Mr Godfrey considers that the downstairs play space being fully enclosed is not appropriate for 30 children under 2 years of age. Mr Godfrey considers that there should be a balance between indoor and outdoor areas with the outdoor areas providing the ability to develop gross motor experiences and interact with nature and see the sky. He considers that play scape1 is not satisfactory as it will be difficult for the children to see the sky and it will not equate with the opportunity to experience an outdoor setting. Furthermore he says that the centre has long hours from 7 am to 7 pm five days a week and in his opinion this does not provide an appropriate environment for children.

50 With respect to the area to the south known as play scape 2 Mr Godfrey points out that this faces south and that it would be cold and damp and is only partially outdoors. Ms Firth when questioned on the appropriateness of this space said that she was not a landscape designer and didn't know whether north or south was better.

51 When Mr Godfrey was questioned by Mr McEwen he accepted that the north facing opening to playscape 1 and the windows to the east means the sky will be visible but he commented this would be when children are standing towards the activity room end. When he was questioned on play scape area 4/5 he agreed that there is a substantial area not covered by the roof element of some 13 metres wide and 9.5 metres deep that is open to the elements. However Mr Godfrey commented that in his opinion the first floor outdoor space areas do not meet the criteria of outdoor space and furthermore closed on two sides with solid walls. 52 Mr Clay questioned Ms Firth on the activity areas identified as 1, 2 and 3 in that the sun does not shine into these areas directly and she agreed and acknowledged that regulation 43 requires access to natural light. Mr Godfrey commented on activity rooms 1, 2, and 3 where there are no proposed windows and the only light source is through play scape 1 and 2 and in his opinion he does not consider that this is sufficient direct sunlight or access to light and that the spaces are therefore inappropriate.

53 When Mr McEwen questioned Mr Godfrey on activity area 1 and he agreed that there was a substantial opening to the north to play scape area 1 therefore there would be a flow of natural light but he doubted whether given the 9 metres distance whether this would be reasonable access to natural light. However, windows to the east would improve the situation.

Findings on amenity 54 This last issue contested by the respondent is on the design and layout and internal amenity of the proposed childcare centre. For the applicant it was submitted that the question is not whether the proposal is ideal but if it satisfactory.

55 I have assessed the plans in detail and a copy of the amended plans, exhibit M is attached. Although the amenity of the proposed development may not be optimal, this is not the relevant test. At the same time I also agree with the submission of the respondent that a proper merits assessment must be undertaken under s79C, and having regard to the local planning regime. Satisfaction of the Children's Services Regulation is not the test for the assessment of a development application. 56 In my merits assessment of the evidence to the Court I have concluded that the amenity of the internal and external open space areas is satisfactory and this issue would not warrant refusal of the application.

57 I agree that it is preferable for outdoor open space play areas to be at ground level embracing natural elements of the environment where possible and safe. However, the internal amenity of the activity spaces and the 'playscape' areas are appropriate. The north facing portion of the building is utilized as far as possible to provide appropriate amenity. I am also satisfied that the activity rooms, while generally not receiving sunlight, natural light will penetrate and side glazing also means appropriate amenity is afforded these spaces. The south facing outdoor space will not provide the same amenity however, this less desirable aspect would not warrant refusal of the application. 58 While there is merit in the adaptive re-use of buildings at the same time the amenity afforded to the occupants of a childcare centre must be given careful consideration and I am satisfied in this regard.

59 I have concluded there are no reasons as to why consent, subject to conditions, should not be granted to the proposal shown in the amended plans. Accordingly the formal orders of the Court will be to uphold the appeal and grant development consent.

      J S Murrell
      Commissioner of the Court
      ljr

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