This is another interesting NSW planning case in relation to a development approval for a childcare centre in which issues were raised relating to the National Law and Regulations. In NSW such applications require the approval of the Regulatory Authority under the National Law (Department of of Education) under clause 22 of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, which relates to space requirements.
The Land and Environment Court in its findings stated:
The Land and Environment Court in its findings stated:
The critical contentions to be resolved in this appeal relate to the fact that what is proposed is a sensitive use, a child care centre, adjoining two major roads. Such a location will result in adverse impacts on the children at the centre, unless those impacts can be satisfactorily resolved.
In this regard, on the threshold issues, the application fails on a number of jurisdictional grounds, even before the related merit tests are considered.
Firstly, concurrence was refused by the Regulatory Authority to the application and is a mandatory requirement to the granting of consent. The Court has the power to overturn this decision and issue the required concurrence. However, given the advice of the Regulatory Authority, and the circumstances, I fail to find any reason to do this.
Specifically, the issues raised by the Department in not granting concurrence were not adequately resolved or addressed by the applicant to the extent that would warrant the Court not accepting the reasons provided by the specialist Department in not granting concurrence to such an application. The weight of the evidence was that these reasons were, and remain, valid.
In particular, and most critically, there was no evidence offered by the applicant of any exceptional circumstances which warrant or require the use of this site for a child care centre necessitating simulated outdoor play space in lieu of the unencumbered actual outdoor play space which is required, but not able to be provided, given the form and location of the development proposed.
It is the locational constraints associated with the site chosen and the decision to retrofit an existing building, rather than designing a new development, that limits where usable and acceptable outdoor play areas can be located.
In this regard, I do not accept that a hostile external environment constitutes an exceptional circumstance, unless there are no other alternatives to locate a child care centre in the area, and the area requires such a centre. There was no evidence that this was the case.
To the contrary, I consider that it is likely that there are other sites within the B6 zone, or the locality, where such a use could be better located and where the constraints of retrofitting a commercial building, thus limiting where outdoor play space can be provided and appropriately treated, do not exist. I will deal with whether this is a relevant consideration shortly.
Whilst I do accept that, for example, in the Sydney CBD there are few options to provide outdoor play space other than in simulated environments, that is not the case in a suburban location, such as Silverwater, which is not a major commercial hub or constrained by existing high rise built form and limited available sites with sufficient area to provide outdoor play spaces with the required level of amenity.
The applicant simply failed to demonstrate what the exceptional circumstances are. I agree with Mr McDonald that the site is surrounded by a hostile external environment but I also agree with Mr Eastman that, if a site with a hostile external environment constitutes exceptional circumstances, there could be many poor outcomes in terms of where child care centres may be situated in the future, notwithstanding the site context.
Turning to the other grounds cited for withholding concurrence, for reasons which I will outline shortly, I do not accept that the air quality impacts were adequately resolved.
Nor do I accept that viewing a few trees in the reserves of heavily trafficked roads, or in proposed landscaping visible in gaps between acoustic walls, would provide the treed outlook for children from the simulated outdoor space as sought by the Department in order for concurrence to be issued.
Finally, the applicant did not adequately address the specific concern raised by the Department that there were child care vacancies ‘in the surrounding suburbs’, instead relying on an analysis which only considered the Silverwater postcode (2 suburbs) and with findings of likely demand not supported by other evidence before the Court.
In summary, there is no basis, nor any justification provided, to warrant overriding the decision of the Regulatory Authority, with specialised knowledge in child care centres, not to issue concurrence.
As concurrence is a jurisdictional issue which must be satisfied in order to issue consent, and I do not intend to provide that concurrence, the application fails and must be refused. (paras 200-215)
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