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

This is a case before the NSW Land and Environment Court that I first mentioned in a previous blog post. In this case the applicant developer (Vella) applied for a development application for a 45 place childcare centre. The NSW Regulatory Authority intervened in the case and opposed the application as the developer sought to roster children to meet the outdoor space requirements of Regulation 108, National Regulations. It was agreed during the case that there was only sufficient outdoor space provided for 22 children. 

The Court had to consider whether the application complied with regulation 108 and made the following assessment:

I agree that the proposed design of the child care centre complies with all other standards, controls and regulations relevant to the proposed development, except the areal space for outdoor play/activities, pursuant to Reg 108(2) of the Regulations. I also agree that the proposed location of the outdoor play spaces on the ground and first floors, and together with the PoM [Plan of Management] is capable to limit the number of children to less than 22, outside at any one time. This satisfies that acoustic assessment to mitigate any potential impacts from noise to residents from children attending the child care centre.
The issue I must therefore resolve is whether the intent of the areal space requirement, as specified in Reg 108 of the Regulations, is satisfied by the proposed development, and whether the reliance on the PoM is both realistic and practical for a 45 place child care centre to address the educational needs of all the children attending the centre.
The outdoor play schedule provided in the PoM is complex. The schedule divides the children into (age)groups and then sub (age)groups in order to comply with the limit of 22 children outside at a time. For example, there are proposed to be 27, three to five year olds at the centre. At any one time, only a portion of this group can be outside. The same pattern is provided for the two to three year old age group, where, although there are only 18 of this age group proposed, they are not all scheduled to play outside at any one time. Therefore, neither of the age groupings will all play together outside at any time during the day. In addition, the maximum period of play outside is 1 hour for the older group, and 50 minutes for the younger group. However, the bulk of the (outdoor)play sessions are 30 minute periods.
Therefore, whilst the schedule of outdoor play sessions does comply with the requirements of the noise assessment to limit 22 children playing outside at a time, the quality of these play sessions I consider is not satisfactory for the following reasons.
The description of Reg 108 in s 4.9 of the Guidelines is not particularly helpful to explain the intent of the outdoor space requirement (of 7 m2 per child), except to describe how it should be calculated and state the following:

“An education and care service premises must provide for every child being educated and cared for within the facility to have a minimum of 7.0m2 of unencumbered outdoor space.”

I therefore must turn to the ACECQA Guide to understand the intent of the outdoor space requirement as it relates to a child’s well-being, and whether the space available with the proposed management schedule for a 45 place child care centre is sufficient to satisfy Reg 108 of the Regulations, with regards to outdoor space.

To assess the intent of the areal space requirement of 7 m2 per child, pursuant to Reg 108(2) of the Regulations, I rely on the ACECQA Guide for guidance on what an outdoor space is required to achieve with regards to a child’s development. According to p80 of the Guide (below), which relates to the physical environment in a child care centre, a child needs access to outdoor space as much as indoor space:

Wherever possible, children need opportunities to be outdoors as much as indoors. This can be achieved with well-designed integrated indoor and outdoor environments that are available at the same time.

Further to this, on p82 of the Guide, it describes the function of an outdoor play space within a child care centre:

“Outdoor environments are characterised by both active and quiet zones that comprise a balance of fixed and moveable equipment, open space to engage in physical activities and spaces that promote investigation and respect for and enjoyment of the natural environment.

These spaces are dynamic and flexible and:

• provide opportunities for unique play and learning

• complement and extend the indoor activities and learning experiences

• offer children opportunities to be active, messy and noisy and play on a large scale.”

It is apparent in my assessment of the evidence before me that based on the PoM’s outdoor play schedule that children in a 45 place child centre at this site will not have equal access to outdoor and indoor play spaces. The time allocated for outdoor play for each child is limited to a maximum of 2.5 hours per day over the course of the day in short intervals. I do not consider this equivalent to the time the children will spend indoors at play. In addition, the very limited periods of play, particularly the half hour time slots are insufficient for the children to ‘play on a large scale’.
I agree with the Department that the requirements for ‘Quality Area 3’ of the National Quality Standard for Early Childhood Education and Care (NQS), which:

“focuses on the physical environment and ensuring that it is safe, suitable and provides a rich and diverse range of experiences that promote children’s learning and development”,

is not achieved by the proposed development for a 45 place child care centre, and in particular Standard 3.1 and Element 3.1.3 of the Guide are not satisfied by the proposed outdoor (play) space.
The NQF is achieved through compliance with the National Quality Standard. Therefore, as the NQF, which underpins the National Law and the Regulations is not achieved, I find that the proposed development is not compliant with Reg 108 due to inadequate provision of outdoor space. The proposed development is inconsistent with the National Law and the Regulations.
There appears to be some consistency with the noise assessment limitation of 22 children in the outside space at any one time and the areal requirement for the proposed outdoor space, which pursuant to Reg 108(2) of the Regulations is equivalent to about 22 children for the space provided.
The applicant was given the opportunity during the hearing to consider addressing the non-compliance of its proposed outdoor space by using any indoor space, pursuant to Reg 108(5) of the Regulations, and/or by reducing the number children proposed at the child care centre. The applicant however does not seek to do either of these options, and therefore seeks to rely on the DA before the Court for a 45 place child care centre with its supporting documents including the amended plans and PoM. The applicant did not provide any further justification for a preference of a 45 place as opposed to a 22 place child care centre.
I find that the proposed development based on the supporting documents to the DA for a 45 place child care centre is not in compliance with the Regulations, specifically Reg 108. The proposed development is also not compliant with cl 22(1)(b) of the SEPP. (paras.33-46)

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