This case was heard by the NSW Land and Environment Court and concerns an appeal under section 8.15 Environmental Planning and Assessment Act 1979 against the refusal by the Council of a Development Application for the demolition of existing structures and construction of a 52 place child care centre at 53-55 Oakleigh Avenue, Thornleigh. One of the issues that arose in the case is the scope of regulation 108, National Regulations. The Tribunal made the following findings (paras. 94-102):
Clause 108 requires that there be 7 sqm of unencumbered outdoor space for each child. The National Regulation excludes from calculation any pathway, car parking, storage shed or area and any other space not suitable for children. The Council does not suggest that any of those exclusions apply. I agree.
The Council argues that the landscaping within the outdoor area encumbers that area and should be excluded from calculation. If that be so, there is a shortfall.
The uncontested evidence of Ms Campbell is that outdoor play areas can include landscaping and such vegetation can provide both amenity and opportunities for interaction for the children. The Guideline refers to exclusion of dense hedging or planting along boundaries which are designed for landscaping purposes and not for children’s play.
“Unencumbered” means free of encumbrance and “encumbrance” is relevantly a hindrance (Macquarie Dictionary 5th Ed). Logically the phrase unencumbered outdoor space anticipates an area where children are not hindered from playing. A dense hedge is one example of what may be assumed to be like a solid barrier of vegetation, therefore a hindrance or encumbrance.
Here the landscaping is within a garden bed and is characterised by low plantings, shrubs and occasional trees. It is not proposed as a barrier and will not form a dense hedge. Children will be able to enter the garden bed and interact with the vegetation and whatever else may be found in the garden beds and enjoy the shade of the trees. Landscaping should be part of an outdoor play area for children. Figures 9 and 10 in the Guideline show that there is landscaping provided in the graphically demonstrated unencumbered outdoor space.
In my opinion it is appropriate to include the landscaped area as unencumbered outdoor space. The proposed development therefore complies with cl 108.
Two further observations ought be made. First, considering the provisions of the Guideline, the landscaping is mostly of a height lower than the boundary fence on Nicholson Avenue and the hedging fronting Oakleigh Avenue. That is, it is not for the most part landscaping which will be appreciated from outside the site. It is not “for landscaping only” because it cannot be seen from beyond the site. It is designed to engage the children and provide a benefit for them.
The second observation is that the standard of 7 sqm per child must anticipate that a significant percentage of children will utilise the outdoor play area at the same time. That is, the standard applies whether all the children are utilising the area, or whether, for other reasons only a small number of children can use the area at the one time. Here the acoustic goals can only be met if there are never more than 12 children able to use the outdoor play area at any one time. The required area for outdoor play is based on the potential use by 52 children. Whilst I accept that the standard probably did not assume all children using the outdoor area at the same time, it must have assumed a high proportion of children using it at the same time. Certainly the potential here for 12 children out of a possible 52, or even 12 out of a possible 34 children 2 years and above, is a lower proportion than would have been expected when the standard was determined. Ms Campbell in her evidence said the proportionate use of outdoor play area was low.
It follows that in my opinion even if the landscaped area was excluded, then the unencumbered outdoor space would meet the standard for 49 children (344 sqm /7 sqm per child), still well in excess of the maximum number of concurrent users proposed, and so I would consider it adequate and acceptable. If it was necessary, I would exercise the concurrence function of the Regulatory Authority and find the provision of unencumbered outdoor play area acceptable.
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