Outdoor Space Requirements (Regulation 108): Vella v Penrith City Council

This is an interesting case heard by the NSW Land and Environment Court. It relates to a planning (or consent) application for a childcare centre. Unusually, in this case, the Department of Education (the NSW Regulatory Authority under the National Law) has sought to be heard in the proceedings before the Court in relation to the application (normally only the planning authority [Council] and the developer are parties in such proceedings). The Court summarised why the Department has sought to be joined in the proceedings:

The Department has not yet provided a Statement of Contentions upon which it would rely, however Exhibit A does set out what would be inferred to be the sole contention - that is the failure to provide an area of seven square metres per child of unencumbered outdoor space for each of the children permitted to attend the proposed development.
The Council's position is that it is unnecessary to require the full amount of space as satisfaction, at least of the spirit of that which is required by the guideline [Child Care Planning Guideline], is able to be achieved by limiting the number of children permitted to be outdoors at any one time - resulting in the minimum of seven square metres per child on each occasion when children are outside.
The Department wishes to press that the full amount of space should be made available.(paras.11-13)

The Court granted leave for the Department to be heard in the future hearing of this matter.

This follows a previous case (see my previous post) that found that children, to meet regulatory requirements, could be rostered to utilise outdoor space.