Vella v Penrith City Council [2019] NSWLEC 1247

Vella v Penrith City Council [2019] NSWLEC 1247

The proposed 45 place child care centre required 315 m2 of unencumbered outdoor space but provided only 159.3 m2, equivalent to space for about 22 children. Although the Plan of Management could limit outdoor use to satisfy acoustic requirements, its scheduled short and divided outdoor play sessions did not satisfy the intent of regulation 108 or the National Quality Standard requirements for children's outdoor play and development. Because the applicant did not reduce the number of children or rely on indoor space under regulation 108(5), the development was non-compliant with regulation 108, clause 22(1)(b) of the SEPP, and subss 4.15(1)(a)(iv) and (e) of the EP&A Act, so consent could...

Jurisdiction
Australia
Judgment Date
05 June 2019
Procedural Posture
Class 1 Appeal Against Refusal of Development Application / Hearing After Termination of Conciliation
Outcome
The appeal was dismissed and Development Application 18/0332 was refused.
Legal Topics
['development Application for Centre Based Child Care Facility' 'outdoor Unencumbered Space Requirements' 'regulatory Authority Concurrence' 'noise Impact' 'public Interest']
['planning and Environment' 'development Consent' 'child Care Regulation'] ['development Application for Centre Based Child Care Facility' 'outdoor Unencumbered Space Requirements' 'regulatory Authority Concurrence' 'noise Impact' 'public Interest']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Against Refusal of Development Application / Hearing After Termination of Conciliation

Legal Issues

  1. 1 ['Whether the proposed 45 place child care centre provided sufficient unencumbered outdoor space to comply with regulation 108 of the Education and Care Services National Regulations 2018.' 'Whether reliance on the Plan of Management limiting outdoor play to fewer than 22 children at a time was realistic and practical to meet the educational and physical needs of all children attending the centre.' 'Whether development consent could be granted despite non-compliance with regulation 108 and clause 22(1)(b) of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017.' 'Whether the proposed development satisfied subss 4.15(1)(a)(iv) and (e) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The proposed 45 place child care centre required 315 m2 of unencumbered outdoor space but provided only 159.3 m2, equivalent to space for about 22 children. Although the Plan of Management could limit outdoor use to satisfy acoustic requirements, its scheduled short and divided outdoor play sessions did not satisfy the intent of regulation 108 or the National Quality Standard requirements for children's outdoor play and development. Because the applicant did not reduce the number of children or rely on indoor space under regulation 108(5), the development was non-compliant with regulation 108, clause 22(1)(b) of the SEPP, and subss 4.15(1)(a)(iv) and (e) of the EP&A Act, so consent could...

Court Disposition

The appeal was dismissed and Development Application 18/0332 was refused.

Orders

  • ['The appeal is dismissed.' 'Development Application 18/0332 to construct a 45 place child care centre, with basement parking at Lot 332 DP 1175094, also known as 68 Cadda Ridge Drive, Caddens is refused.' 'The exhibits, except for Exhibits 1, 3, A and C, are returned.']