Kids Club Early Childhood Learning v Leichhardt Council [2015] NSWLEC 1211 (15 June 2015)

New South Wales Land and Environment Court

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Kids Club Early Childhood Learning v Leichhardt Council [2015] NSWLEC 1211 (15 June 2015)

Last Updated: 17 June 2015

Land and Environment Court New South Wales

Case Name:	Kids Club Early Childhood Learning v Leichhardt Council
Medium Neutral Citation:	[2015] NSWLEC 1211
Hearing Date(s):	5 and 7 May 2015
Date of Orders:	15 June 2015
Decision Date:	15 June 2015
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	Directions at paragraph 42
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to convert an existing building into a child care centre. Amenity of internal and external space and adequacy of car parking.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Children (Education and Care Services) National Law NSW No 104a Education and Childcare Services National Regulations Leichhardt Local Environmental Plan 201
Category:	Principal judgment
Parties:	Kids Club Early Childhood Learning (Applicant) Leichhardt Council (Respondent)
Representation:	Counsel: Mr A Galasso SC (Applicant) Solicitors: Mr G McKee of McKees Legal Solutions (Applicant) Mr M Bonanno of Leichhardt Council (Respondent)
File Number(s):	10711 of 2014

JUDGMENT

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Leichhardt Council (council) of a development application (DA/2014/299) for alterations and additions to convert an existing building into a childcare centre at 6-8 Waterloo Street, Rozelle (site).
2. The key issues in dispute between the parties are whether the proposed centre provides adequate amenity and parking spaces.

Site and locality

3. The site is located on the western side of Waterloo Street, near its intersection with Darling Street. It is generally rectangular in shape with an area of approximately 709.2sqm. The site is developed with a single storey building, which appears as two storey at the front and sides and single storey from the rear. The existing building is masonry with a portal frame and a low pitch sheet roof behind a parapet.
4. The site adjoins residential development to the north and rear. To the south are commercial properties fronting Darling Street and to the east, on the opposite side of Waterloo Street, is the former Balmain Leagues Club.

Planning controls

5. The site is within B2 Local Centre Zone under Leichhardt Local Environmental Plan 2013 (the LEP). The development is permissible with consent. The site adjoins the former Police Station at 707 Darling Street, which is listed as a heritage item under the LEP.
6. Leichhardt Development Control Plan 2013 (the DCP) is relevant and includes provisions for Parking (C1.11) and Child care centres (C4.8).
7. The Children (Education and Care Services) National Law NSW No 104a (Childcare Act) includes provisions for the approval of a provider of childcare (Part 2, Division 1) and for a childcare service (Part 3 Division 1). An application may be made for a waiver from the service requirements of the child care centre (Part 3, Division 5).
8. The Education and Childcare Services National Regulations (Regulation) specify requirements for childcare centres including area requirements for indoor (cl 107) and outdoor space (cl 108), toilet and hygiene facilities (cl 109), ventilation and natural light (cl 110), and outdoor space – natural environment (cl 113), shade (cl 114) and sun protection (cl 168).
9. The Best Practice Guidelines in Early Childhood Physical Environments (the Guidelines) provide guidelines for the design of childcare environments.

Background and proposal

10. The development application was lodged on 25 June 2014 and sought approval for alterations and additions to the existing building and change of use for a child care centre for 90 children with the hours of operation 7am to 6.30pm Monday to Friday.
11. The applicant lodged a Class 1 appeal against the deemed refusal of the application on 5 September 2014. The applicant was given leave to rely on amended plans on 20 February 2015. The key changes were the reduction in the number of children to 78, internal reconfigurations and retention of the front facade.
12. In response to the Joint Report of the planning experts, further amendments were made to the plans and leave was granted for these plans at the commencement of the hearing. The amendments mainly involved internal reconfiguration, the introduction of skylights and changes to the glass wall at the rear of the first floor playground. A final set of plans was tendered during the hearing (Exhibit A) which clarified inconsistencies between the architectural, structural and landscape plans. These are the plans for which consent is sought (the application).
13. The application is for child care centre for 78 children with the hours of operation 7am to 6.30pm Monday to Friday. It includes the retention of the side and front exterior walls of the building, some portal frames and part of the roof and the construction of a new first and second floor. The ground floor provides drive way access to four drop off car spaces (including a shared disabled drop off) and two staff car spaces, the reception area, cot rooms, nappy change and indoor play area for the 0-2 year olds (84.5sqm), and outdoor play (210sqm), part of which is open to the sky and part is an undercroft area. The first floor provides an indoor play area (143.8sqm) and associated facilities for the 2-5 year olds and an outdoor play area (338sqm), some of which is under the existing roof structure. The second floor (mezzanine) provides staff facilities and a reading room (26sqm).
14. The application proposes a “Bio-metrics Time and Attendance System” (Bio-metrics System) to stagger the arrival and departure time of children attending the centre and regulate the use of the parking spaces proposed on site.

Evidence

15. The Court visited the site and surrounding area and heard from objectors. The key concern was the impact of the proposal on traffic and increased demand for on street parking. They consider that the intersection of Darling Street and Waterloo Street is already congested in the AM and PM peaks and would be exacerbated by the proposal and any redevelopment of the former Balmain Leagues Club. The proposal provides inadequate parking to meet the demands of the centre. In particular, the proposed Bio-metrics System is unworkable and parking cannot be managed by expecting parents to arrive within 15 minute time slots, which will result in parents seeking to park on the street, where parking is already in short supply and is metered. They were also concerned about manouvering within the carpark and that cars would reverse onto the street, which is a safety issue due to poor sight lines and children crossing. The adjoining residents were also concerned about overlooking and noise impacts. These matters were addressed by council in its consideration of the application and other than the supply of parking were not contended to be reasons to refuse the application.
16. The Court heard expert evidence on planning and amenity impacts from Mr A Minto and Mr S King, for the applicant and Mr B McDonald, for the council. Mr R Varga, for the applicant and Mr M Logan, for the council, provided expert evidence on the parking issues.

Internal amenity

17. Through the amendments to the plans, a number of issues in dispute between the parties in relation to the amenity of the proposal were resolved. The key outstanding issue related to the amenity of the undercroft area on ground level. Mr McDonald considered the area was not akin to a verandah and would be “bleak” as it is too deep with a low floor to ceiling height and does not provide landscaping, receive solar access or have the qualities of an interesting outdoor environment for children required by the Regulations and the DCP. He accepted that the proposed skylights would provide adequate light but this did not alleviate his concern about the amenity of the space.
18. Mr King and Mr Minto considered the undercroft area would provide acceptable amenity and serve a useful purpose by providing an all weather play area to compliment the other indoor and outdoor areas and also provides a shaded outdoor play area with appropriate sun protection for the 0-2s. They considered that the landscape plan would provide an interesting outdoor environment, which includes green walls, sandpit, soft fall path and play areas and that the skylight would provide adequate light and ventilation to these areas. They noted that the Regulations permit a “verandah” to be provided as outdoor space and the Guidelines refer to ‘transition areas” as space which allows play to be carried out under cover and includes undercroft areas with a minimum width of 4m.
19. Mr McDonald also raised concerns about the areas of outdoor and indoor space and compliance with the requirements of the Regulations and the DCP. He considered that these areas should be calculated on the basis of outdoor space (7sqm per child) and indoor space (3.25sqm per child) for the play areas on each level not on a centre based calculation (10.25sqm per child). He agreed that the areas could comply with the requirements by minor adjustments to the walls between the indoor and outdoor spaces.
20. Mr McDonald considered other aspects of the centre provided unacceptable amenity, including the location of the laundry away from the nappy change facility, the location of the reading room on a separate level to the other play areas and the location of the parent interview room on the second floor away from the ground level entry. He noted that the DCP had a preference for single level centres but recognised that the adaptive reuse of the building resulted in additional levels.
21. Mr Minto did not consider that these matters reduced the amenity of the centre or would warrant refusal of the application. In particular, the laundry is appropriately located near the staff facilities and there is no need to locate it next to the nappy change area, the parent interview room is easily accessed by the lift and children using the reading room will be supervised and, although on a different level, is easily accessed. Mr Minto supported the adaptive reuse of the building to provide a child care centre in a location where there is a demand for such a facility.

Findings

22. The Regulation specifies the requirement for indoor space as 3.25sqm per child (cl107) and outdoor space as 7sqm per child (cl 108). The DCP adopts the requirements of the Regulation. Neither document specifies if these areas are calculated on the basis of the centre as a whole or on the indoor and outdoor area at ground level for the 0-2s and the indoor and outdoor area at first floor level for the 2-5s. Mr Galasso SC, for the Applicant, submits that if the combined rate for indoor and outdoor areas of 10.25sqm per child is apportioned to either the centre as a whole or to each floor, 78 children could be accommodated. Alternatively, with minor adjustments to the walls and applying the rates separately for indoor and outdoor space to each floor, the centre could accommodate 75 children. He submits that under s 87 of the Childcare Act, compliance with these requirements can be waived and that the number of children would be subject to approval under the Childcare Act.
23. Mr Bonanno, for the council, supported by the evidence of Mr McDonald, submits that the outdoor areas and the indoor areas should be calculated separately and applied to each floor to ensure that both the outdoor play area and the indoor play areas provide the required space to service the number of children on each floor and that each outdoor space is directly accessible off the indoor space.
24. I accept Mr Bonanno’s submission that the use a combined rate of 10.25sqm per child is not the correct approach. The Regulations and the DCP employ a different rate for outdoor play areas, which is more than double the rate for indoor play areas and reflects the different nature of the activities to be performed in these areas. Consequently, the indoor and outdoor spaces are to be calculated separately. I also accept that as the development is over different levels, with the 0-2s on the ground level and the 2-5s on the first floor level, the number of children that can be accommodated inside should correspond to the number of children that can be accommodated outside in each age group and vice versa.
25. A verandah or undercroft area can provide useful covered outdoor space that can be used in all weather conditions. However, the depth of part of the undercroft is 10m with a ceiling height of only 2.7m. Even with the proposed skylights and landscape treatments, part of this area would provide poor amenity and is too far from the outside to be considered as outdoor space or to meet the requirements of cl 113 of the Regulations that outdoor space “allow children to explore and experience the natural environment”. I note that the Guidelines refer to a transition area and state that this space should “not be included in the space allocation for the playground”. The Guidelines (Part 7) also provide requirements for playgrounds and the rear of the proposed undercroft area would not provide adequate amenity to be consistent with what is sort by these Guidelines for playgrounds.
26. The undercroft area, which adjoins the outdoor play space that is open to the sky to a depth of about 5.5m, would generally achieve the outcome sought by the Regulations and the Guidelines and could be included as outdoor space. However, the remainder of the undercroft to the south of the nappy change is up to 10m deep and should not be included as outdoor space (an area of about 28 sqm). Effectively, based on the applicant’s figures, this would reduce the area of outdoor space at ground level to about 182sqm, which would accommodate 26 children and corresponds to the number of children that can be accommodated in the indoor space at ground level. The residual area can be utilised as storage, incorporated in the indoor space, car park or remain as outdoor space but not be included in the calculation for the number of children.
27. The parties agree that if walls were slightly adjusted between the indoor and outdoor spaces on the first floor, 47 children could be accommodated at this level. On this basis, the reading room on the second floor does not need to be included in the calculation for indoor space as the additional number of children would not correlate with the available area of outdoor space on the first floor. It is preferable that the reading room remain as the staff dining area, as previously proposed, which clearly delineates the staff level, with facilities such as the kitchen and laundry, from the children’s play areas.
28. Consequently, the total number of children that can be accommodated in the centre is 73 (26 + 47) as shown in the following table.

	Indoor space		Outdoor space
	Size (sqm)	No of children @ 3.25 sqm per child	Size (sqm)	No of children @ 7 sqm per child
Ground Floor	84.5 (84.5)	26	182 (210)	26 (30)
First Floor*	152.8 (143.8)	47 (44)	329 (338)	47 (48)
Total	237.3	73	511	73

*walls adjusted, ( ) area proposed in the development application

Car parking

29. The key disagreement between the traffic experts was whether adequate parking was provided to meet the demand of the development. Initially, this focused on the Bio-metric System. Mr Varga prepared a report on Traffic and Parking, which together with the joint report describe the operation of the Bio-metric System. It operates in conjunction with the Parent Arrivals and Departure Times Agreement (Agreement), which is signed by all parents prior to commencement at the centre. The Agreement requires parents/carers to nominate a time slot in the morning and afternoon for drop-off and pick-up. It is used at three other Kids Club Childcare Centres to ensure adequate staffing levels are provided commensurate with the number of children on site. The Bio-metric System is proposed to be used in the development to also regulate the use of the car parking. The Agreement would restrict drop offs to 15 minute time slots in the 2.5 hour morning period and to 20 minutes time slots in the 3 hour 20 minute period in the afternoon.
30. Mr Varga and Mr Logan concur that under the Agreement the four on site car spaces could accommodate 80 drop offs in the morning and afternoon periods. However, the actual demand for spaces is likely to be less based on assumptions about children walking, car pooling and occupancy rates and they agree there would be a maximum of 60 car drop-offs and pick-ups each morning and afternoon. They also agree that three parking spaces could each accommodate two cars in each time period and therefore meet the actual demand and the fourth space would provide a “buffer” of two cars in each time period for parents running late or early. Mr Logan and Mr Varga agree that:

The implementation of the parent arrival and departure times agreement will maximise the usage of the 4 parking spaces proposed on the site for drop-offs and pick-ups by ensuring that the arrival and departure of parents/carers cars is evenly dispersed throughout the 150/200 minute duration of the morning/afternoon drop-off and pick up periods.

31. However, Mr Logan remained concerned that without adequate consequences, parents/carers may not comply with the specified drop-off and pick-up times and there is no data available from other centres as to how the Bio-metric System operates and what would be an adequate penalty to deter non-compliance. The applicant would accept a condition that the Agreement include an appropriate penalty regime.
32. Based on surveys of on street parking on the western side of Waterloo Street (between Darling Street and Moodie Street), Mr Varga concluded that there is adequate capacity to accommodate parking in the unlikely event that more than three parents were running late and the DCP contemplates the use of on street parking to meet demand. Mr Logan acknowledged that the proposal would generally comply with the requirements in the DCP without relying on the Bio-metric System. He agreed that there is adequate availability of on street parking in the morning but was concerned that in the afternoon there is an average of only four vacant on street spaces. Furthermore, he considers that it is more appropriate to apply the rate of 1 space per 10 children, which is used by other inner urban council and, in his opinion, correctly reflects the demand for parking without the need to rely on the Bio-metrics System. This would require 8 parking spaces for a 78 place childcare centre, some of which could be provided on the street.

Findings

33. The Table to Part C1.11 - Parking of the DCP provides car parking rates. Childcare centres require a parking study “when more or less parking spaces (than the minimum required number) are proposed”. A minimum pick-up and drop-off of two car spaces is required, which is qualified by the following note:

2. Drop-off/pick up facilities for Child Care Centres may be located kerbside subject to appropriately satisfying the following:

a. suitable kerbside availability at times relevant to the child care centre;
b. being located immediately adjacent to the child care centre and on the same side of the street as the centre;
c. a suitable safe footpath is available between the spaces and the centre;
d. traffic activity on the subject street does not create an unsafe environment for drop-off/pick-up activity;
e. the spaces represent best practice in parking design and placement including reference to Safety by Design principles including sightlines, accessibility and opportunities for passive surveillance.
f. spaces may be timed (i. e. 15 minute parking) at peak movement times of the day.

34. C37 of Part 3.48 - Child Care Centres provides that:

An off street drop off zone/area for the centre be provided. The off street drop off zone is to be designed and located in conjunction with Council officers and constructed in accordance with council requirements.

35. The parties agree that there is a degree of conflict between these clauses, but that the DCP envisages that the parking demands of a child care centre can be met by on street parking subject to certain criteria, including the availability of on-street parking. They agree that under the DCP, and without the Bio-metric System, the demand for parking for the proposed centre would be met in the morning peak but disagree about the afternoon peak. I accept that without the Bio-metric System and a reduction in the number of children, the proposal may place stress on the demand for parking on the street in the afternoon peak due to the limited availability of space.
36. Under the DCP, there is no control over the distribution of parking demand as cars can arrive at the centre at any time. The Bio-metric System seeks to disperse the arrival times and better manage demand so that the use of the on-site parking spaces is maximised and there is no reliance on street parking, even though it is permitted under the DCP. The experts agree that, if properly complied with, the Bio–metric System would meet the demand for parking on site without the need to utilise on street parking. Unfortunately, the applicant did not provide data on the effectiveness of the Bio-metric System at other centres where it is used to correlate staff/children numbers. However, even if parents were on occasion to be late or to occasionally use parking on street this is not inconsistent with the DCP requirements.
37. Furthermore, as discussed before, the number of children is to be reduced to 73, which will further reduce the demand for parking. I am satisfied that the number of spaces on site, together with the Bio-metric System and the proposed condition for penalties and the availability of spaces on the street, will adequately meet the demand for parking generated for a 73 place centre.
38. To accommodate any overflow parking, it is preferable but not essential that the frontage of the site be designated as a 15 minute drop off space for the morning and evening peak periods. Such a proposal would need to be considered by the Traffic Committee and Mr Bonanno indicated that it would be unlikely to be supported by the Committee due to opposition from residents and commercial operators. The applicant would accept a drop off zone but not if approval of the development was contingent upon the Traffic Committee Approval. In these circumstances, I find that a condition should be imposed that requires the Applicant to apply for a drop off zone outside its property during the morning and afternoon peak periods. However, in the event that this is not approved by the Traffic Committee the application could operate without a designated drop off zone.

Conditions

39. Agreed conditions were filed by the parties on 10 June 2015, however, these conditions appear to contain some inaccuracies and omissions including:
    • (i) other than a reference to Traffic Report in Condition 1, there are no conditions that require the on-site parking to operate in accordance with the Bio- metric System and the Agreement.
    • (ii) the proposed condition (Ex N) should be included that requires the Agreement to include a penalty for non-compliance.
    • (iii) other than a reference to the Noise Report in Condition 1, there are no conditions that require the works recommended by the Noise Report, compliance with noise criteria and monitoring to establish that the noise criteria can be met by implementation of the works and the operation of the centre.
    • (iv) condition 71 will need to be amended to reflect the approved number of children.
    • (v) condition 76 refers to 7 car spaces but there are only 6 proposed. The “shared zone” is not a parking space.
    • (vi) condition 82 refers to an approved Plan of Management, which would need to be amended to reflect this judgment.

Conclusion

40. For the above reasons, I find that the application can be approved as a 73 space child care centre. This requires changes to the use of part of the undercroft space on the ground floor, the wall locations on the first floor and the deletion of the reading room on the second floor. While these changes could be dealt with by conditions, it is preferable and provides greater certainty if the amendments are incorporated into final plans.
41. In these circumstances, it is appropriate that Directions be issued to finalise the plans and conditions, which include the changes outlined above and the requirement that the applicant apply for a drop of zone. Final orders will be issued in Chambers that uphold the appeal once the amended plans and conditions, which reflect this decision are finalised.

Directions

42. The Court makes the following Directions:

1. The applicant is to serve amended plans by 29 June 2015.

2. The council is to serve amended conditions by 6 July 2015.

3. The parties are to file agreed plans and conditions by 13 July 2015.

4. Liberty to restore on two days notice.

Annelise Tuor
Commissioner of the Court