Outdoor Space Requirements (Regulation 108): Tahany Pty Ltd v Woollahra Municipal Council

I rarely cover planning decisions in this blog as generally they don't directly relate to the interpretation of the National Law or Regulations. However, in this case, before the NSW Land and Environment Court, the Court made comments in relation to the policy of the NSW Regulatory Authority (Department of Education).

I won't go into the details of the case, however, Tahany sought development consent to change the use of an existing dwelling to a child care centre for 30 children, as well as alterations and additions to the existing building to accommodate the proposed use. The application was refused by the Council and so it appealed to the Court. It should be mentioned that in NSW part of planning law is the Child Care Planning Guideline (CCPG) which includes guidelines on the application of the National Regulations to development (or planning) applications.

A number of issues were canvassed in the case including simulated outdoor space (paras.77-87) and the sufficiency of outdoor space. In regard to the latter issue, the Court commented on the Regulatory Authority's interpretation of the National Regulations:

The fourth issue, which was also raised in the Second Further Amended Statement of Facts and Contentions, is that the total of the outdoor play areas is insufficient as all the areas are not available at all times. This issue is based on two concerns. First, Dr Abbey expressed concern that this meant that the children are not getting sufficient play in the outdoor environment, or sufficient active play. Second, Dr Abbey referred to a directive from the regulatory authority that, for the purpose of determining service approvals, officers are only to take into account outdoor space available to the children at all times during the services’ operating hours to calculate the amount of outdoor space and determine whether 7m2 is provided for each child.

With respect to the first concern, Tahany notes that this was not raised in any contention by the Council but submits that on the indicative program in the Plan of Management, there is sufficient active play. It relies on the evidence of Ms Campbell that, on the calculation that the indicative program allows 1hr 36min of active play, this is sufficient active play to be provided at a child care centre. Further, her evidence is that she could prepare a program that provides more opportunities for active play and outdoor play, including for up to 3 hours of active play for each child, even with the restrictions on some of the areas.

I accept this submission and the evidence of Ms Campbell. The restrictions on the hours of use of particular outdoor play areas are not overly constraining and as such they allow adequate time for outdoor play. Further, I accept the evidence of Ms Campbell that additional active play could be accommodated in a timetable or program if required.

With respect to the directive from the regulatory authority, Tahany submits that there is no legislative basis for that directive. That is, there is nothing in the ECS Regulations, the controls or the CCPG that says that the outdoor space requirement in Regulation 108 must be available at all times that the centre is operating. Tahany also relies on the decision of Kamrani Holdings Pty Ltd & Anor v Willoughby City Council [2016] NSWLEC 1146, in which there were restrictions placed on the hours of use of outdoor play areas, and those restrictions did not result in an issue concerning the sufficiency of the area provided for outdoor play.

I accept the submissions made on behalf of Tahany. There is nothing in the ECS Regulations, the controls or the CCPG which prevents outdoor play area that is only utilised for part of the day from being included in the calculation of the total area. Secondly, the indicative program demonstrates that the restrictions can be accommodated within a daily program whilst also allowing the children to have adequate outdoor and active play.

As a result, based on the evidence of Ms Campbell, I consider that the outdoor play areas are sufficient to accommodate the number of children proposed in the development application. The division of the total outdoor space into four different play areas, including the SOPA, allows different experiences to be provided in each of the play areas. The indicative programs demonstrate that it is intended to rotate children through those areas so that each child has the opportunity to have those different experiences. (paras.95-100).