Hot Weather Risks for Childcare Services

A number of Regulatory Authorities (under the National Law) have issued information and advice to services about Summer weather risks. The NSW Department of Education have a web page about hot weather risks for children. The Queensland Department of Education have recently published advice on staying safe during Summer.

Seasons Greetings

Thanks to all subscribers for your interest in the blog over the past year. All the best for the New Year!

 

Update of Approved Learning Frameworks under the National Law

The Education Council has commissioned an update of the two national approved learning frameworks under the National Quality Framework. The stakeholder feedback and engagement process is to commence from mid-2021. The terms of reference, including the timeline for the review, can be found on the Education Council website. More information is also available from the ACECQA website.

Consultation Regulatory Impact Statement on Streamling Early Childhood Education and Care Approval Processes

Following consultations over the last four years, the Commonwealth Department of Education, Skills and Employment has released a Consultation Regulation Impact Statement exploring and discussing options for streamlining the Early Childhood Education and Care approval processes across jurisdictions. Submissions close on 8 January 2021. Further information is available from the ACECQA website. The Sector website also published an article on release of the paper.

How Early Childhood Education and Care Services Can Plan and Prepare for Bushfires

The NSW Department of Education (NSW Regulatory Authority under the National Law) has recently updated its advice on this issue.

NSW South Coast Childcare Worker Accused of Sexual Assault Gets Bail

 ABC Online today carried an article on this case.

Planning Application for Childcare Centre: Ekon Pty Ltd v Hornsby Council

This case was heard by the NSW Land and Environment Court and concerns an appeal under section 8.15 Environmental Planning and Assessment Act 1979 against the refusal by the Council of a Development Application for the demolition of existing structures and construction of a 52 place child care centre at 53-55 Oakleigh Avenue, Thornleigh. One of the issues that arose in the case is the scope of regulation 108, National Regulations. The Tribunal made the following findings (paras. 94-102):

Clause 108 requires that there be 7 sqm of unencumbered outdoor space for each child. The National Regulation excludes from calculation any pathway, car parking, storage shed or area and any other space not suitable for children. The Council does not suggest that any of those exclusions apply. I agree.

The Council argues that the landscaping within the outdoor area encumbers that area and should be excluded from calculation. If that be so, there is a shortfall.

The uncontested evidence of Ms Campbell is that outdoor play areas can include landscaping and such vegetation can provide both amenity and opportunities for interaction for the children. The Guideline refers to exclusion of dense hedging or planting along boundaries which are designed for landscaping purposes and not for children’s play.

“Unencumbered” means free of encumbrance and “encumbrance” is relevantly a hindrance (Macquarie Dictionary 5th Ed). Logically the phrase unencumbered outdoor space anticipates an area where children are not hindered from playing. A dense hedge is one example of what may be assumed to be like a solid barrier of vegetation, therefore a hindrance or encumbrance.

Here the landscaping is within a garden bed and is characterised by low plantings, shrubs and occasional trees. It is not proposed as a barrier and will not form a dense hedge. Children will be able to enter the garden bed and interact with the vegetation and whatever else may be found in the garden beds and enjoy the shade of the trees. Landscaping should be part of an outdoor play area for children. Figures 9 and 10 in the Guideline show that there is landscaping provided in the graphically demonstrated unencumbered outdoor space.

In my opinion it is appropriate to include the landscaped area as unencumbered outdoor space. The proposed development therefore complies with cl 108.

Two further observations ought be made. First, considering the provisions of the Guideline, the landscaping is mostly of a height lower than the boundary fence on Nicholson Avenue and the hedging fronting Oakleigh Avenue. That is, it is not for the most part landscaping which will be appreciated from outside the site. It is not “for landscaping only” because it cannot be seen from beyond the site. It is designed to engage the children and provide a benefit for them.

The second observation is that the standard of 7 sqm per child must anticipate that a significant percentage of children will utilise the outdoor play area at the same time. That is, the standard applies whether all the children are utilising the area, or whether, for other reasons only a small number of children can use the area at the one time. Here the acoustic goals can only be met if there are never more than 12 children able to use the outdoor play area at any one time. The required area for outdoor play is based on the potential use by 52 children. Whilst I accept that the standard probably did not assume all children using the outdoor area at the same time, it must have assumed a high proportion of children using it at the same time. Certainly the potential here for 12 children out of a possible 52, or even 12 out of a possible 34 children 2 years and above, is a lower proportion than would have been expected when the standard was determined. Ms Campbell in her evidence said the proportionate use of outdoor play area was low.

It follows that in my opinion even if the landscaped area was excluded, then the unencumbered outdoor space would meet the standard for 49 children (344 sqm /7 sqm per child), still well in excess of the maximum number of concurrent users proposed, and so I would consider it adequate and acceptable. If it was necessary, I would exercise the concurrence function of the Regulatory Authority and find the provision of unencumbered outdoor play area acceptable.

 

 

Cancellation of Childcare Benefit Approval: Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills & Employment (No 2

In a previous blog post, I reported on a case in which the Federal Court granted a stay of cancellation of CCB approval of Billan Family Day Care. In this case, the Court heard the appeal against cancellation by the Department. The application for review of the decision by Billian was made on the interpretation and application of the applicable legislation. The Court held that the Department made the correct decision in cancelling approval which was based on the applicant having not complied with one or more conditions for continued approval. Amongst other things, these related to inaccurate reporting of care and failure to comply with the National Law and Regulations (see paras. 26-33).

Sale of Childcare Centre: LEA Child Care Services v Development Learning Centre Rainbow Pty Ltd

This is an interesting case heard by the Victorian Supreme Court. In this case the purchaser of a childcare centre sued the seller of the centre for breach of contract when a number of child enrolments were transferred to the seller's other, nearby, service prior to finalisation of the sale.