Vella v Penrith City Council  NSWLEC 1247
On 5 June 2019, the NSW Land and Environment Court handed down its decision in Vella v Penrith City Council  NSWLEC 1247. This matter concerned an appeal against the refusal of a development application to construct a 45-place child care centre. Whilst the proponent and Council were in agreement and wished to have a Consent Orders hearing, the NSW Department of Education’s Early Childhood Directorate (DoE) was required to give concurrence to the development. The Early Childhood Directorate refused concurrence.
DoE has a concurrence role pursuant to clause 22 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (ESEPP). Under clause 22(1)(b) of the ESEPP, the concurrence of DoE is required if the outdoor space requirement for the building or place does not comply with regulation 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations (National Regulations). Regulation 108 of the National Regulations requires a provider of an education and care service to ensure that 7m2 of unencumbered outdoor space is provided to each child that is educated and cared for by that service.
DoE refused to grant concurrence to the DA pursuant to section 4.13(8)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act) due to non-compliance with regulation 108 of the National Regulations. To be in accordance with regulation 108, the DA would need to be for 22 children or less. However, the DA proposed to accommodate 45 children, thereby not providing 7m2 of unencumbered outdoor space for each child.
On 16 April 2019, Justice Moore held that DoE be joined to the proceedings as the second respondent, as there is a broad public interest policy issue proposed to be addressed by the Department of Education. As the proponent and the Council are in agreement, Council cannot act as the contradictor for the Department of Education.
To overcome the deficiencies in outdoor space the applicant put forward a Plan of Management (PoM) that detailed an outdoor play schedule. This play schedule divided the children into age groups and then sub age groups to comply with the limit of 22 children outside at one time. According to the PoM the groups of children would be rotated through the outdoor space in 30 to 60-minute intervals throughout the day. It is important to note that the bulk of the outdoor play sessions provided by the PoM were for 30-minute periods. DoE argued that the quality of time and space for outdoor play was insufficient to meet a growing child’s needs.
Accordingly, the main contention that the Court considered was whether the intent of the outdoor space requirement specified in regulation 108 was satisfied by the proposed development and whether the PoM was a practical and realistic means for a 45-place child care centre to address the educational needs of the children attending the centre.
To assess the intent of the outdoor space requirement, Commissioner Bish relied on the Australian Children’s Education & Care Quality Authority Guide to the National Quality Standard (Guide), in particular page 82 of the Guide, which describes the function of an outdoor space within a child care centre as follows:
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.
Commissioner Bish specifically noted that the half hour time slots for children to play in the outdoor area were insufficient for the children to play on a “large scale”.
Commissioner Bish also agreed with DoE in that the requirements for “Quality Area 3” of the National Quality Standard (NQS) would not be achieved by the proposed development for a 45-place child care centre. The requirements for “Quality Area 3” of the NQS:
“to ensure that the physical environment is safe, suitable and provides a rich and diverse range of experiences that promote children’s learning and development”
Furthermore, Commissioner Bish determined that Standard 3.1 and Element 3.1.3, both of which fall within Quality Area 3 of the NQS, had not been satisfied by the proposed development. Standard 3.1 deals with the design of the facilities being appropriate for the operation of the service. Whereas, the Guide describes Element 3.1.3 as follows:
Element 3.1.3: Facilities are designed or adapted to ensure access and participation by every child in the service and to allow flexible use, and interaction between indoor and outdoor space.
DoE submitted that as 90% of the human brain is developed by 5 years of age, research showed that more neural pathways are developed in children under 5 years of age who play outside.
Ultimately, Commissioner Bish found that the proposed development was not compliant with Regulation 108 due to the inadequate provision of outdoor space and was also not in compliance with clause 22(1)(b) of the ESEPP. The Commissioner also found that the proposed development was not consistent with the Children (Education and Care Services) National Law (NSW). Accordingly, Commissioner Bish determined that the proposed development was unable to satisfy subsections 4.15(1)(a)(iv) and (e) of the EP&A Act. Thus, the appeal was dismissed, and the proposed development was refused by the Court.
The decision in this matter is important for many reasons, firstly it provides an example of when regulation 108 of the National Regulations and clause 22(1)(b) of the ESEPP have not been satisfied for a proposed centre-based service. Additionally, it demonstrates to those providers of a centre-based service who are unable to comply with regulation 108, the importance of ensuring that the outdoor space at the centre addresses the developmental and educational needs of the children attending the centre.
Maureen Peatman of Hunt & Hunt Lawyers represented the NSW Department of Education, Early Childhood Education Directorate in these proceedings.
- Children (Education and Care Service) National Law (NSW) 104a (the National Law)
- Education and Care Services National Regulations 2018 (the Regulations)
- Environmental Planning and Assessment Act 1979
- Land and Environment Court Act 1979
- State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017 (ESSP)
Relevant texts: Australian Children’s Education and Care Quality
- Authority Guide to the National Quality Standard 2017
- Childcare Planning Guidelines 2017 (the Guidelines)