This case before the ACT Civil and Administrative Tribunal relates to the issue of outdoor space and the number of approved places in relation to service approval. Wonderschool (applicant), before the Tribunal, sought review of the decision of the ACT Education Directorate to issue it with a service approval under section 48, National Law, restricted to 72 childcare places. Wonderschool had applied to operate a service on the first floor of a mixed use multi story building with 95 childcare places. The Education Directorate contended that the applicant only met the regulatory requirements for outdoor space for 72 children. A large basis of their argument was based on the Regulatory Authority's Outdoor Guidelines which provided that any outdoor space had to be open to the sky, be well ventilated with adequate natural light, and allow children to explore and experience the natural environment. The applicant, however, argued that once the minimum requirements for outdoor space are met in regulation 108 it is not open to the regulator to limit child numbers by reference to regulation 113 or any other practical matter. It also argued that compliance with regulation 113 cannot be determined by reference to a single aspect of the natural environment, specifically solar access. Finally, they argued that the totality of the outdoor space (rather than the subdivided portion of it) must be considered when considering regulation 113.
The Tribunal found in favour of the applicant, stating that (paras. 39-43):
The principles relating to the provision of and value of outdoor play areas for young children are well canvassed in the legislation and expert reports. There is virtually universal agreement on these. The areas of dispute in this case are relatively narrow and involve evaluation of the attributes of physical areas, in particular outdoor areas, available to children attending the centre. In those circumstances, previous decisions are useful in illustrating application of principle. However, each matter differs according to the facts and determination of the principles to them.
In designing the complex of buildings in a busy commercial area, a significant consideration was the convenience to parents with children and their children to have a childcare centre within that complex. The facilities in the centre are many and of evident high standard. It is evident that care and expertise has been devoted to the creation of the centre.
In the view of the Tribunal is not necessary to examine in detail the expert evidence since the applicable principles are easily ascertainable and have been referred to earlier in this decision. They commence with the proposition that the welfare of the children is of paramount consideration. The Tribunal on its inspection was impressed with the quality of the physical environment provided for the children. There was no location within the outdoor area that was unsuitable for the children, and there was no need or call to judge whether one area was more suitable for their use than another. There were variations in conditions but there was no detriment to being in one location rather than another.
As Callinan J said in Brodie v Singleton Shire Council, “The world is not a level playing field”.[1] The Tribunal’s view is that the outdoor area is entirely suitable for the purpose for which it was built and equipped. There was no justification for examining whether any particular area was inferior to another. There was seamless movement and use of all areas including the area in dispute.
It was a simple issue and artificial analysis was unnecessary. It is the view of the Tribunal, the entirety of the outdoor space should be used for calculation of the number of children leading to the conclusion that the number should be 95.
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