In Carpenter Street Centre Pty Ltd atf The Carpenter Street Centre Trust v Penrith City Council, the NSW Land Environment Court was required to consider an appeal against refusal by Penrith City Council to grant a development consent for a childcare centre. One of the basis for refusal was the amenity of the lower ground play areas. The Court had this to say in relation to the relationship between NSW planning laws and the National Regulations (paras. 82-90):
Whilst the subterranean nature of the indoor play areas on the lower ground level is undesirable and is a subpar design for a child care centre, it is not a sufficient basis upon which to refuse the development application. I reach the conclusion that these play areas have sufficient solar access, natural light, and ventilation, for the following reasons.
Firstly, I accept CSC’s position that there is no numerical requirement concerning solar access for indoor play areas. The evidence of Mr Haskew is that, even at 21 June, the western and eastern indoor play areas each receive some solar access, albeit limited. The extent of solar access will then increase closer to the equinox, and may even provide solar access to the central indoor play area through the glazing between the rooms, depending on the translucency of that glazing. I accept the evidence of Mr Wood that the proposed development has optimised the solar access to those play areas by increasing the size of glazing (windows) on the west and east, adding glazing to the dividing wall between the rooms at 1.2m above the finished floor level, and increasing the size of each glass sliding door to the south so that they are 2.7m in height and span the full width of each play room.
Without there being a numeric requirement concerning solar access, it is not appropriate to impose one, and it is sufficient that some solar access is received by the western and eastern indoor play areas, and that the proposed development has sought to optimise solar access to all rooms by providing as much glazing as possible.
Secondly, the specified requirements concerning natural light and ventilation in Part 4.4 of the CCPG {Child Care Planning Guideline] is for child care facilities to “comply with the light and ventilation and minimum ceiling height requirements of the National Construction Code”. The National Construction Code is described in the glossary to the CCPG as being “made up of the Building Code of Australia and the Plumbing Code of Australia”. As such, it is sufficient that the proposed development meets the BCA requirements concerning light, ventilation and minimum ceiling height. No contrary metric is provided in Part 4.4. The BCA light and ventilation letter dated 31 October 2023 (Ex C Tab 7) confirms that each of the playrooms meet the deemed-to-satisfy provisions in the BCA concerning natural light in Clause F4.2 and natural ventilation in Clauses F4.5 and F4.6. This means that adequate natural light and natural ventilation is achieved without having to rely on borrowed light, artificial lighting or mechanical ventilation.
Thirdly, there is no requirement in the CCPG for natural cross-ventilation in the indoor play areas, other than the recognition in Part 4.4 that this is a way in which good ventilation can be provided. Nevertheless, consistent with the evidence of Mr Wood, the operable doors and windows to the play areas are able to remain open (based on the acoustic report in Ex B Tab 2) and will provide natural ventilation to all three rooms, and the two rooms to the east and west will have cross-ventilation at their southern end. To the extent that the indoor play areas will need mechanical heating and ventilation (which is not required for BCA compliance), I accept the submission made on behalf of CSC that this is not uncommon for a childcare centre.
For those reasons, I consider that the indoor play areas on the lower ground level have adequate solar access, natural light and ventilation. In addition, the indoor play areas at the lower ground floor are supported by a connection to a large outdoor play area with no restriction on the length of time that the outdoor play area can be used (albeit there is a restriction on the total number of children that can use the area). The cantilevered upper ground floor provides shading of part of that outdoor play area. As such, the children and childcare workers will have ready access to natural outdoor elements through the connection of the indoor play areas to the outdoor play areas.
I therefore find that the amenity of the indoor play areas on the lower ground level is acceptable, and nothing in contentions (3)(h), (j) or (k), 5, 9(c) or 10(c) warrants refusal of the development application.
I should note that, in considering the development application, I need not be specifically satisfied that the requirements of reg 110 of the National Regulations are met. As I stated in Entrepreneur Enterprises Pty Ltd v Lane Cove Municipal Council [2023] NSWLEC 1323 at [16]:
“The National Regulations are enforced by the Regulatory Authority, who issues service approvals for education and care services, including centre based child care facilities. The National Regulations are not required by the EPA Act, the SEPP TI or any other planning instrument to be considered when assessing a development application for a centre based child care facility.”
However, Part 4.4 of the CCPG concerns design guidelines to achieve compliance with reg 110. In considering a development application in accordance with s 4.15 of the EPA Act, I am required to consider the CCPG and I need to be satisfied that the proposed development is capable of being used for the purpose sought in light of the applicable regulatory regime, including that it is capable of compliance with reg 110 of the National Regulations. Whilst I am so satisfied for the reasons set out above, my findings in that regard do not bind the Regulatory Authority.