MESABO Pty Ltd and Chief Executive Officer of Department for Community Development
[2007] WASAT 199
•7 AUGUST 2007
MESABO PTY LTD and CHIEF EXECUTIVE OFFICER OF DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASAT 199
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 199 | |
| CHILDREN AND COMMUNITY SERVICES ACT 2004 (WA) | |||
| Case No: | VR:60/2007 | 27 JUNE 2007 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) MS D DEAN (MEMBER) | 7/08/07 | |
| 45 | Judgment Part: | 1 of 1 | |
| Result: | Decision of delegate of Chief Executive Officer of the Department affirmed Review application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MESABO PTY LTD CHIEF EXECUTIVE OFFICER OF DEPARTMENT FOR COMMUNITY DEVELOPMENT |
Catchwords: | Outside school hours child care licensing Vacation care licence Premises adjacent to licensed premises also occupied by public during licensed periods Maximum number of children to be cared for under licence Whether licensee must have planning and development approval for a child care centre Whether Chief Executive Officer of the Department can issue separate licences when a single licence was applied for |
Legislation: | Building Regulations 1989 (WA), reg 20(1) Child Care Services Act 2007 (WA) Children and Community Services Act 2004 (WA), Pt 8, s 7, s 8, s 9, s 197, s 198, s 199, s 199(1), s 199(2), s 201, s 202, s 203, s 204, s 205, s 205(1), s 205(2), s 205(3), s 205(4), s 205(5), s 206, s 206(2), s 207, s 208, s 209, s 212, s 213(1), s 213(2), s 215, s 216, s 217, s 217(1), s 217(2), s 217(3), s 218, s 219, s 225, s 232 Children and Community Services (Outside School Hours Care) Regulations 2006 (WA), Pt 3, reg 29, reg 29(1), reg 29(1), reg 29(3), City of Joondalup District Planning Scheme No. 2 Community Services Act 1972 (WA) Community Services (Outside School Hours Care) Regulations 2002 (WA), reg 15(3), reg 15(5), reg 15(6), reg 33, reg 38, reg 39, reg 54, reg 78 Health Act 1911 (WA) Health (Public Buildings) Regulations 1992 (WA) Local Government Act 1960 (WA), s 374C State Administrative Tribunal Act 2004 (WA), s 20(1) State Administrative Tribunal Rules 2004 (WA), r 9, r 10 |
Case References: | Nil |
Orders | 1. The decision by the delegate of the CEO to grant the applicant a vacation child care licence in respect of the licensed place at Elcar Lane on the condition (amongst others) that the maximum number of children is 71, is affirmed. ,2. The review application is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : CHILDREN AND COMMUNITY SERVICES ACT 2004 CITATION : MESABO PTY LTD and CHIEF EXECUTIVE OFFICER OF DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASAT 199 MEMBER : JUSTICE M L BARKER (PRESIDENT)
- MS D DEAN (MEMBER)
- Applicant
AND
CHIEF EXECUTIVE OFFICER OF DEPARTMENT FOR COMMUNITY DEVELOPMENT
Respondent
Catchwords:
Outside school hours child care licensing Vacation care licence Premises adjacent to licensed premises also occupied by public during licensed periods Maximum number of children to be cared for under licence Whether licensee must have planning and development approval for a child care centre Whether Chief Executive Officer of the Department can issue separate licences when a single licence was applied for
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Legislation:
Building Regulations 1989 (WA), reg 20(1)
Child Care Services Act 2007 (WA)
Children and Community Services Act 2004 (WA), Pt 8, s 7, s 8, s 9, s 197, s 198, s 199, s 199(1), s 199(2), s 201, s 202, s 203, s 204, s 205, s 205(1), s 205(2), s 205(3), s 205(4), s 205(5), s 206, s 206(2), s 207, s 208, s 209, s 212, s 213(1), s 213(2), s 215, s 216, s 217, s 217(1), s 217(2), s 217(3), s 218, s 219, s 225, s 232
Children and Community Services (Outside School Hours Care) Regulations 2006 (WA), Pt 3, reg 29, reg 29(1), reg 29(1), reg 29(3),
City of Joondalup District Planning Scheme No. 2
Community Services Act 1972 (WA)
Community Services (Outside School Hours Care) Regulations 2002 (WA), reg 15(3), reg 15(5), reg 15(6), reg 33, reg 38, reg 39, reg 54, reg 78
Health Act 1911 (WA)
Health (Public Buildings) Regulations 1992 (WA)
Local Government Act 1960 (WA), s 374C
State Administrative Tribunal Act 2004 (WA), s 20(1)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Result:
Decision of delegate of Chief Executive Officer of the Department affirmed
Review application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr CJ Baker
Respondent : Mr DF Oliver
Solicitors:
Applicant : Chris Baker & Associates
Respondent : Department for Child Protection
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Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 The applicant owns a children's activity centre in Joondalup. In September 2004, the applicant was first licensed to operate a before school/after school child care service for 143 children. The applicant still holds a licence to this effect.
2 Following the receipt of legal advice and much correspondence with the Department for Community Development (as it then was), when the applicant lodged its licence renewal application in August 2006, it sought a licence for 143 children for both a before school/after school child care service and a vacation care child care service.
3 The Department treated this renewal application as an application for two separate licences: one for a before school/after school child care service; and one for a vacation care child care service.
4 On 9 November 2006, the applicant was issued with a licence for a before school/after school child care service for 143 children. On 14 December 2006, the applicant was issued with a licence for a vacation care child care service for 71 children.
5 The applicant then sought review of the decision of the delegate of the Chief Executive Officer of the Department for Community Development (CEO) to issue two separate licences and of the decision to limit the maximum number of children enrolled under the vacation care child care licence to 71.
6 The Tribunal found that the Department was entitled to consider the renewal application as an application for two separate licences.
7 The Tribunal found that it is appropriate to limit the number of children under the vacation care child care licence in the particular circumstances of the case, which include the entry of the public to the premises and the high noise level. The Tribunal further found that the figure of 71 children had been reached in a way that was not unreasonable.
8 During the pre-hearing procedures, the CEO raised the issue whether the applicant had planning approval to operate a child care service at the premises. The Tribunal found that the question whether planning approval to conduct the proposed service has been given will not ordinarily be determinative of the application for a child care licence.
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Issues
9 The primary issue in these proceedings is whether the applicant is entitled to a licence to conduct an outside school hours vacation care service at premises in Joondalup under the Children and Community Services Act 2004 (WA) and Children and Community Services (Outside School Hours Care) Regulations 2006 (WA) in respect of 143 children, as proposed by the applicant, or 71 children, as provided for in licence 5452 issued on behalf of the CEO of the Department for Community Development, now the Department for Child Protection.
10 Two other issues raised by the parties are:
• whether the applicant should have, but does not have, planning and development approval for the vacation care use; and
• whether the CEO was entitled to issue a separate vacation care licence in addition to a before school/after school care licence, when the applicant applied for a single licence.
Regulatory context in which issues arise
11 The Children and Community Services Act 2004 (WA) (2004 Act), which was assented to on 20 October 2004, by Pt 8 deals with child care services. Section 197 provides that the expression "child care service" has the meaning given to that term in s 198. In essence, s 198 provides that a child care service is a service for the casual, part-time, or day-to-day care of a child or children under 13 years of age that is provided for payment or reward, as a benefit of employment or as an ancillary service to a commercial or recreational activity. Certain activities not currently relevant are not included within the expression.
12 Parts of the 2004 Act that are relevant to child care services are soon to be replaced by the Child Care Services Act 2007 (WA) (2007 Act) which was assented to on 3 July 2007, but has not yet been proclaimed. When the 2007 Act becomes operational, it will effectively re-enact the terms of Pt 8 of the 2004 Act. The 2004 Act is itself relatively recent legislation. The relevant sections commenced on 1 March 2006. It repealed the Community Services Act 1972 (WA) (1972 Act), to which further reference is made below.
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13 Under s 201 of the 2004 Act, a person must not provide a child care service except under and in accordance with a licence authorising provision of the service at a specified place.
14 Under s 202 an application for a licence may be made to the Chief Executive Officer of the Department (CEO), which is currently the Department for Child Protection, although at the time of the application it was the Department for Community Development.
15 An application must be in writing in an approved form accompanied by any prescribed information and a fee: s 203. Under s 204 the CEO may ask an applicant for additional information that the CEO considers is or could be relevant to making a decision on the application.
16 Under s 205(1) the CEO may grant a licence to an authorised person to provide a specified type of child care service at a specified place. The term "specified" means specified in the licence document: s 205(2).
17 Section 205(3) provides that a licence cannot be granted in respect of more than one child care service. Section 205(4) provides that a licence cannot be granted to two or more persons. However, s 205(5) provides that a person may be granted two or more licences whether for the same type of child care service or for different types of child care service.
18 Section 205 appears to be premised on the understanding that the CEO may grant a number of licences to a particular applicant provided that each licence is in respect of a different child care service.
19 The circumstances in which a licence should not be granted are spelled out in the Act. For example under s 206:
"(1) The CEO must not grant a licence if there are reasonable grounds for believing that the provision of the child care service to which the application relates would constitute an unacceptable risk to the wellbeing of children for whom the service would be provided.
(2) The CEO must not grant a licence unless the CEO is satisfied that -
(a) the applicant is capable of providing a child care service in accordance with the regulations and the terms and conditions of the licence;
- (b) the place at which the child care service is, or child care services are, to be provided is suitable for that purpose;
(c) a licence or equivalent authority granted or issued to the applicant has not been cancelled in the period of 5 years before the application is made;
(d) the applicant is of sound financial reputation and stable financial background;and
(e) if the application relates to the provision of a family day care service, each usual occupant is a fit and proper person to associate with children."
20 Section 207, s 208 and s 209 further provide that the CEO must not grant a licence to an individual applicant, corporate applicant or a public authority, as the case may be, if relevant persons have been found guilty of a prescribed offence, unless the CEO is satisfied that there are exceptional reasons for doing so.
21 Additionally, the CEO must not grant a licence unless satisfied that the relevant applicant has satisfied a number of requirements, including that they are a fit and proper person to be involved in the provision of the child care service.
22 Licence conditions and amendments are dealt with in Div 4 of Pt 8 of the 2004 Act. By s 212 it is a condition of every licence that an approved supervising officer for the child care service is present at the place where the service is provided at the times when the service is provided, except to the extent (if any) that the regulations otherwise provide.
23 Generally, however, by s 213(1) the CEO may grant a licence "subject to any conditions that the CEO considers appropriate".
24 Section 213(2) further provides that regulations may prescribe conditions that are taken to be attached to all licences or to licences related to a particular child care service, unless otherwise specified in the licence.
25 By s 215 the CEO may amend a licence, which means that the CEO may impose any new conditions or change or remove any existing condition (other than the condition referred to in s 212).
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26 By s 216 the period of a licence must not exceed three years, subject to a number of provisos, unless s 217(3) applies.
27 Section 217 deals with applications for the renewal of licences. By s 217(1) a licensee may apply to the CEO for the renewal of a licence. An application for renewal must meet the same types of requirements that an initial application must meet: s 217(2). If an application for renewal is made in accordance with s 217 the licence continues to have effect until the application for renewal is determined, unless the licence is suspended under s 220 or cancelled under s 224: s 217(3).
28 Section 218 provides that the CEO must not renew a licence in a number of circumstances, namely if:
"(a) the CEO is no longer satisfied as to any matter referred to in section 206(2), 207, 208 or 209 that was relevant to the decision to grant the licence;
(b) the CEO is satisfied that the licensee has persistently or frequently contravened the regulations or a term or condition of the licence;or
(c) there are reasonable grounds for believing that the continued provision of the child care service to which the application relates would constitute an unacceptable risk to the wellbeing of children for whom the service is provided."
29 Under s 219, if the CEO renews a licence the CEO may:
"(a) renew it subject to any existing condition;
(b) impose any new condition;or
(c) change or remove any existing condition (other than the condition referred to in section 212)."
30 The opportunity for an existing licence holder to apply for a renewal of a licence, while it is similar in terms of the process by which an application is initially applied for and granted, seems to carry with it at least two advantages for a licence holder. First, by reason of s 217(3), the existing licence holder is not at risk of their business coming to an end by reason of the expiry of their licence pending the determination of the renewal application. Secondly, the provisions of the 2004 Act concerning
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- renewal of a licence seem to be premised on an understanding that ordinarily a licence will be renewed if the Act and regulations have relevantly been complied with during the earlier licence period.
31 While s 205(1) provides that the CEO may grant a licence authorising a person to provide a specified type of child care service at a specified place, which suggests a broad discretion to grant or to refuse the application for a licence, there does not appear to be any precise equivalent to s 205(1) in the case of an application for a renewal of a licence.
32 However, s 219 does suggest that the CEO has a broad discretion to deal with licence conditions in dealing with a renewal application, as it provides:
"If the CEO renews a licence the CEO may -
(a) renew it subject to any existing condition;
(b) impose any new condition;or
(c) change or remove any existing condition (other than the condition referred to in section 212)."
34 However, the CEO has the power to renew a licence subject to existing conditions, or impose new conditions or change or remove any conditions except in the case of the s 212 condition.
35 The Children and Community Services (Outside School Hours Care) Regulations 2006 (WA) (2006 Regulations) do a number of things including prescribe matters to be dealt with in an application and ancillary to an application and impose general obligations on licensees concerning such things as notification of harm to an enrolled child and staffing requirements.
36 Part 3 of the 2006 Regulations deals with requirements for the place or obligations relating to the place where the child care service is provided. These deal, among other things, with play equipment and
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- materials, first aid kits, cleanliness and animals. They also deal in reg 29 with the play areas at that place.
37 By reg 29(1) a licensee must ensure that the place has:
"(a) an area of indoor space suitable for children's play of at least 3.25 [square metres] multiplied by the number equal to the number of children specified in the licence; and
(b) an area of outdoor space suitable for children's play of at least 9.3 [square metres] multiplied by the number equal to the number of children specified in the licence."
38 Regulation 29(3) gives the CEO power to waive or vary the outdoor space requirement if there is an equivalent area of space within walking distance for the enrolled children, or the outdoor space is augmented by a larger indoor space suitable for children's play.
39 As noted earlier, s 206(2)(a) of the 2004 Act provides that the CEO must not grant a licence unless satisfied that the applicant is capable of providing a child care service in accordance with the regulations, as well as the terms and conditions of the licence. Therefore, it becomes important for the CEO to be satisfied that there are sufficient play areas at the place as specified by reg 29(1). However, the outdoor space requirement may be waived in accordance with reg 29(3).
40 Prior to the commencement of the 2004 Act, child care services were regulated under the 1972 Act. While the regulatory system created by the 1972 Act was similar in many ways to that created by Pt 8 of the 2004 Act, it was also different in certain respects. For example, whereas s 206(2)(b) of the 2004 Act expressly requires the CEO not to grant a licence unless satisfied that "the place at which the child care service is, or the child care services are, to be provided is suitable for that purpose", the 1972 Act did not contain a similar provision.
41 Section 218 of the 2004 Act expressly provides that the CEO must not renew a licence if, amongst other things, the CEO is no longer satisfied as to any matter referred to in s 206(2) that was relevant to the decision to grant the licence. Furthermore, under s 219 of the Act the CEO has the power, as noted earlier, to impose any new condition.
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Factual background to issue
42 Licence 5452 is the licence the subject of these review proceedings. By licence 5452 the applicant is licensed under the 2004 Act and 2006 Regulations to conduct an outside school hours care service to be known as "Go Bananas Outside School Hours Care - Vacation Care", to operate from the place, being the portion of 8 Elcar Lane, Joondalup, shown as cross-hatched on the diagram which is Attachment 1 to the licence, for the period 13 December 2006 to 12 December 2009.
43 The licence has been issued subject to the following conditions:
"1. At any one time, the licensee must only care for a maximum of 71 children.
2. The licensee must only operate the named licensed service at the following times:
• Before school care - 00:00 - 00:00, Monday to Friday
• After school care - 00:00 - 00:00, Monday to Friday
• Vacation care/pupil free days - 07:00 - 18:00, Monday to Friday.
3. The licensee is to ensure that the general public are excluded from the licensed place at all times the service operates, other than parents of the children; persons authorised by parents of enrolled children to collect the children; and persons authorised by written law to enter the licensed place, but subject to Regulation 39.
4. The service has a [waiver] for outside space with the availability of Elcar Park.
5. At all times the service operates the licensee is to ensure that the licensed place is enclosed by a barrier approved by the CEO, the barrier to be erected along the exact boundary of the licensed place, and that any gate in the barrier that offers access to or from the licensed place is equipped with an efficient self-locking mechanism."
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44 The effect of condition two is, and is intended to be, that the applicant is only able to operate a vacation care child care service at the times when schools are not operating. In other words it is not a before school/after school child care service but only a vacation care service.
45 The licence was issued by Mr Brad Jolly, Director, Licensing and Standards, Child Care Licensing and Standards Unit, as the delegate of the CEO under the Act.
46 The circumstances in which licence 5452 for vacation care came to be separately issued under the Act are as follows.
47 In December 2002, Mr Amgad Botros, Managing Director of the applicant company, purchased the property at 8 Elcar Lane, Joondalup, and the applicant purchased the business known as "Go Bananas Kiddie Centre" that was then operating on the premises. According to Mr Botros, at the time of the acquisition the facility was zoned "Service Industrial" under the relevant town planning scheme of the City of Joondalup (City) and the City had issued a planning consent for the facility authorising it to be used as a "Children's Activity Centre".
48 The City had also issued a certificate of classification dated 18 February 2002 under the Local Government Act 1960 (WA), s 374C and Building Regulations 1989 (WA), reg 20(1) certifying that the Council approved the use of the building situated at the property as a building of a class or classes specified therein. The storey or portion of building described in the certificate of classification was "Children's Activity Centre" and "single storey tilt-up concrete with colorbond roof". The class or classes of building were described as "9b Assembly Building".
49 Mr Botros explained that at the time of acquiring the Go Bananas business, the services provided included:
• "Pay for play service" whereby parents attended the centre with the children to use the facilities.
• A party service whereby children's parties were held based on a pre-booked timeslot and were supervised by their parents.
• Café facilities which provided food and beverages for children and parents.
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- • Other event and entertainment bookings which included:
- vacation care bookings for external vacation care providers supervised by their respective staff and carers;
- Christmas parties for groups;
- community bookings for various organisations;
- mothers' group bookings; and
- playgroup bookings.
51 Mr Botros said he approached the City of Joondalup and met with officers of the city to investigate the option of providing child care services for children aged 0 - 6 and/or outside school hours care services for children aged 5 - 12. In December 2003, Mr Botros wrote to an officer of the City outlining his business plans and how the facility might be utilised for such services.
52 Sometime later, in January 2004, Mr Botros met with Mr Jon Pilkington, Supervisor, Child Care Licensing, from the Department to discuss options for providing such child care services.
53 In late January 2004, Mr Botros met with another officer of the City of Joondalup to discuss planning requirements if such child care services were to be provided at the premises in Elcar Lane. Mr Botros says that he was then advised by the officer that a change of zoning would be required and the rezoning process was outlined to him.
54 Mr Botros says that he then wrote again to Mr Pilkington by letter dated 29 February 2004 outlining his proposal as to how the facility could be utilised. Mr Botros says that he received a reply from Mr Pilkington, which he cannot now locate, stating that the facility could be used for child care services subject to making the relevant changes to the facility to provide child care for children 0 - 6 years old, so as to adhere to regulations, as well as applying for the relevant licence.
55 Mr Botros says that he then wrote to an officer of the City on 8 April 2004 requesting a review of the zoning to potentially rezone for
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- child care services, specifically noting that this was intended to be for the 0 - 6 years age group.
56 Mr Botros says that he then undertook market research to establish the viability of providing child care services and concluded that it was not viable to provide a child care service for 0 - 6 years, but that an outside school hours care service was feasible. However, Mr Botros said that based on his earlier discussions with the officers of the City he "believed that outside school hours care was not a child care facility and accordingly did not require the rezoning of the facility".
57 Mr Botros then engaged in further discussions with officers of the Department for Community Development - Mr Pilkington and Ms Penny Sandover - concerning the provision of a vacation care service.
58 In August 2004, the applicant applied for a licence to provide an outside school hours care service at the premises for 143 children, as a before school/after school service, under the 1972 Act and the Community Services (Outside School Hours Care) Regulations 2002 (WA) (2002 Regulations). On 20 September 2004, licence 4822 for 143 children for before school care and 143 children after school care was granted under the 1972 Act and 2002 Regulations.
59 By letter dated 16 September 2004, Ms Sandover, for the Department, also advised the applicant that its application for exemption from the requirements of reg 15(3)(a)(b) of the 2002 Regulations concerning outdoor play space, was approved for the period 14 September 2004 to 13 September 2006.
60 Licence 4822 was granted for a period of two years from 14 September 2004 to 13 September 2006, consistent with the period of the exemption just referred to.
61 The applicant commenced the before school/after school care service in term one of the school year 2005. Mr Botros says that the economic viability of this service was detrimentally affected because parents did not want to have their children attend at before school/after school care at one facility, and then at another facility for vacation care. Accordingly, on 4 May 2005 he submitted a new application on behalf of the applicant to the Department for vacation care approval, together with supporting information.
62 By letter dated 16 June 2005, Mr Pilkington for the Department advised that the application for vacation care "to the existing licence"
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- would not be approved. The reasons given for that decision at that point may be noted:
• the proposed programme would not meet the play, recreation and relaxation needs of the enrolled children, as provided for by reg 78;
• an excursion-based programme every day for enrolled children was not developmentally appropriate. Many of the children are of a young age and it was considered that this would be too taxing on their wellbeing;
• the volume of noise emanating from the environment with the general public having access to the centre;
• staff supervision of enrolled children would be difficult to enforce in a manner that is sufficient to ensure the wellbeing of the children and that is appropriate to that stage of development: reg 38;
• convicted people banned from the premises could not be enforced: reg 54; and
• the exemption on reg 15(3)(a)(b) was approved on the basis that only short sessions of child care were operating, that the Go Bananas venue was closed to the public at this time, and that there was an equivalent area of play space within walking distance.
The reasons concluded with the statement that:
"Given the above, Child Care Licensing would not agree to the existing exemption on Regulation 15(a)(b) to continue in these dramatically changed circumstances".
64 As a result, the applicant then sought and obtained legal advice to the effect that the existing licence 4822 permitted the applicant to provide a vacation care service without the need for an additional approval or endorsement on the licence from the Department under the 1972 Act and 2002 Regulations.
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65 The Department took advice on the legal position and, by letter from Ms Yvonne Patterson, Acting Executive Director, Program and Sector Development, for the Department dated 23 January 2006, advised the applicant that the Department's legal advice supported the applicant's contention. Consequently, Ms Patterson advised the applicant that the Department proposed to treat the applicant's advice that it "wished to provide school holiday care in the future," as a notification of changed circumstances under reg 33(g). Ms Patterson advised that the proposed change of circumstances was substantial and would require a licensing officer from the Child Care Licensing Unit of the Department to inspect the premises and to report on the operation of various regulations, including reg 15(5), reg 15(6), reg 39 and reg 78.
66 Correspondence between the applicant and the Department then commenced to deal with issues relating to the proposed vacation care service. By letter dated 14 June 2006, Mr David Oliver, Senior Lawyer in the Department's Child Care Licensing and Standards Unit (who also appeared as counsel for the CEO in these proceedings), wrote to Mr Botros on behalf of the applicant regarding a number of matters of concern, indicating that the Department intended to redefine the licensed place on the applicant's licence with respect to vacation care, as well as other conditions. Mr Oliver's letter concluded with the statement:
"While these conditions on [the applicant's] licence could be imposed immediately - see s 215(2) of the [2002] Act - the Department intends to impose most of the changes upon renewal of the licence in September, and is notifying you now as a matter of courtesy".
67 Correspondence continued to be exchanged between the applicant and the Department and arrangements were made concerning the fencing of a portion of the premises for the proposed vacation care service.
68 The applicant lodged its licence renewal application with the Department on or about 3 August 2006. At this time the 2004 Act and 2006 Regulations were relevant to the application, both having come into operation in March 2006.
69 By letter dated 8 August 2006, Ms Sandover, as Team Leader, Child Care Licensing and Standards Unit, for the Department advised Mr Botros for the applicant of a number of considerations the Department would apply to the licence for the vacation care service. The letter required the applicant to provide a diagram showing the portion of the facility to be
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- used exclusively by the enrolled children at those times when the public would be using other portions of the premises, including precise measurements of the space.
70 Ms Sandover's letter also advised that, as the renewal form did not refer to the maximum numbers the applicant would wish to be able to enrol, the applicant should in an accompanying letter suggest what numbers could be applicable given the area it set aside. Her letter further advised:
"The Department will set the maximum numbers according to the play space requirements in regulation 29 of the Children and Community Services (Outside School Hours Care) Regulations 2006 … but reading "indoor space" to be "indoor space for the exclusive use of enrolled children". The CEO will not take into account the space in the rest of the facility in determining the maximum numbers of children that may be enrolled during shared-use times."
71 Ms Sandover's letter also drew attention to the proposed exemption in respect of outdoor play space and advised that:
"The waiver granted with respect to the current license [sic] period was granted on the Department's understanding that the entire facility was for the exclusive use of the enrolled children for relatively short periods of time. The Department did not at the time of granting the waiver understand that the children would be using part of the facility for extended periods of time during school vacation periods."
72 Ms Sandover's letter went on to indicate that while there was no obligation on the CEO to grant the applicant a waiver or exemption with respect to the regulatory requirement to provide outdoor space suitable for children's play equivalent to 9.3 square metres multiplied by the maximum number of children the applicant wished to be able to enrol, a waiver was required and on application would need to be lodged.
73 By letter dated 13 September 2006, Mr Jolly, as Director, Licensing and Standards, Child Care Licensing and Standards Unit, for the Department advised the applicant that because all documents and information as prescribed by the 2006 Regulations were not submitted within the required timeframe, the existing licence would expire on 13 September 2006 and that s 217(3) of the 2004 Act did not apply to give the licence continuing effect. He advised the applicant that the child care
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- service would then be unlicensed and that if the applicant wished to continue to operate a child care service it would need to submit an application for a new licence. However, Mr Jolly then went on to advise in his letter that:
"In the particular circumstances regarding your application to renew I have decided to authorise [the applicant] under regulation 88 … to continue to operate the child care service for a period of 8 weeks from the date of this letter. This authorisation will expire on 8 November 2006, and cannot be extended."
Mr Jolly also advised in his letter that he had accepted the applicant's earlier renewal application as an application for a new licence so there was no need for the applicant to submit a fresh application.
74 By letter dated 3 November 2006, Ms Sandover for the Department advised the applicant that it intended to treat the applicant's current application for a licence as an application for two licences in relation to outside school hours care services, one for before school/after school care and the other for vacation care.
75 After a further exchange of information, the applicant was advised by letter from Ms Sandover for the Department dated 9 November 2006, that the licence application to operate an outside school hours care service had been approved. Licence 4822 was enclosed with the letter. Licence 4822 was issued for a three year period, 14 September 2006 to 13 September 2009. Condition 2 specified that the licence was only for before school care and after school care, and not for "vacation care/pupil free days".
76 In the circumstances set out, licence 4822 was a new licence and not the renewal of an existing licence despite the number of the licence being the same as that on the licence first issued to the applicant in September 2004.
77 Then, by letter dated 24 November 2006, Ms Sandover for the Department advised the applicant that the Director had decided that the applicant would be licensed to provide vacation care at the place shown on the diagram submitted 22 August 2006 for a maximum of 71 children.
78 Her letter of 24 November 2006 went on to provide reasons for that decision. It indicated that reg 29 of the 2006 Regulations sets out requirements for sufficient indoor and outdoor space and stated:
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- "The regulation requires at least 3.25 square metres of indoor space suitable for children's play and at least 9.3 square metres of outdoor space suitable for children's play (emphasis added). The Elcar Lane facility has no outdoor space whatsoever. The Director has agreed to waive the minimum outdoor space requirement on the basis that there is an equivalent area of playing space within walking distance for the enrolled children." (all words and emphasis in the original)
- Her letter then went on to give particular reasons for the limitation of children to the maximum number of 71, namely:
• The enrolled children have no spontaneous or immediate access to outdoor play space within the licensed area.
• Up to 425 adults and children, according to the City of Joondalup building requirements, including the enrolled children, may use the facility at any one time with the result of noise, extra activity and reduced opportunity for enrolled children to relax and recreate.
• The limited opportunities the enrolled children will have to use the climbing frame facilities outside the licensed area at times the general public are admitted.
• The extra care licensed staff will have to take with supervision of enrolled children in moving between the separated licensed areas and accessing bathroom facilities at times the general public are admitted to the facility.
• The licensed area includes four small, windowless theme rooms considered to have limited suitability for children's sustained play.
80 The letter further advised that the Director's decision was a reviewable decision as defined in s 225 of the 2004 Act and the applicant had the right to apply to the State Administrative Tribunal for review of the decision.
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81 The applicant by letter dated 27 November 2006 wrote to the Director, Mr Jolly, in effect challenging the decision and responding to the five points made. Mr Botros, who wrote on behalf of the applicant, considered the reasons given to be subjective and not correct.
82 By letter dated 5 December 2006, Mr Jolly in effect confirmed that the licence would issue when the agreed fencing was installed. He advised he would not revisit his decision concerning the maximum numbers.
83 Mr Jolly also advised in the letter that the requested waiver of the requirement under reg 29(1)(b) for outdoor playing space within the licensed place had been agreed and that no separate document would be issued in respect of the waiver.
84 In the event, licence 5452 was issued by Mr Jolly to the applicant for the vacation care service for the period 13 December 2006 to 12 December 2009, under the 2004 Act and the 2006 Regulations. The conditions of licence 5452 set out earlier were endorsed on the licence.
Application for review
85 The applicant lodged its review application with the Tribunal on 24 April 2007, more than four months after licence 5452 was issued. In a case such as this, the State Administrative Tribunal Rules 2004 (WA) by r 9 require a review application to be made within 28 days of the day on which the decision maker gives notice under s 20(1) of the State Administrative Tribunal Act 2004 (WA).
86 In Ms Sandover's letter for the Department to the applicant dated 24 November 2006, the applicant was advised of the decision concerning the vacation care proposal and was also advised of its right to seek review in the Tribunal.
87 On any view, the applicant was out of time in lodging the review application. However, under r 10 the Tribunal may extend the period for commencing a proceeding.
88 At the first directions hearing in the Tribunal on 8 May 2007, Mr Oliver for the Department advised that the delay in commencing the proceedings did not prejudice the Department. He also indicated that there were a range of issues of statutory interpretation and policy raised by the initial decision upon which the Tribunal's view would be welcomed in the administration of the Act and Regulations.
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89 In these circumstances the Tribunal granted an extension of time to the applicant to commence the proceedings.
Planning and development issue
90 At a relatively late stage in the pre-hearing procedures the CEO amended the statement of issues, facts and contentions to raise the issue whether the applicant had planning approval under the relevant City town planning scheme to operate a child care service on the premises at Elcar Lane.
91 The history of the recent uses of the premises is set out above. It appears that from the time the applicant acquired the Go Bananas business and commenced operating it, the only relevant planning consent it held was for a "Children's Activity Centre".
92 The following account of the planning circumstances relating to the premises is contained in a document prepared by Mr Stephen Sullivan, an officer of the City, which the Tribunal received as evidence in the proceedings (Exhibit 10(1) pages 200 - 201).
93 The land at Elcar Lane is subject to the provisions of the City of Joondalup District Planning Scheme No. 2 (DPS 2) and is located within the "Special Industrial Zone". In this zone the use of land for a "Child Care Centre" is a "prohibited land use".
94 It appears that the initial planning approval for the premises as "Public Amusement - Children's Activity Centre" was granted in 2001, and subsists.
95 It also appears that this planning approval restricts the number of persons who may be on the premises at any one time to 116.
96 However, on 30 July 2003, the certificate of classification referred to earlier was issued under the Health Act 1911 (WA) and the Health (Public Buildings) Regulations 1992 (WA) and specified that the capacity of the building is restricted to 425 persons.
97 The history of dealings between Mr Botros and the City concerning proposed child care service uses as defined by the 2004 Act is set out above. It appears that no further steps have been taken either by the applicant or by the City to effect any amendment to DPS 2 expressly to facilitate child care services on the premises.
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98 The applicant through Mr Botros told the Tribunal that it believed, on the basis of legal advice Mr Botros had received, that the child care uses currently carried out under the two licences are authorised by DPS 2 and the earlier 2001 planning consent.
99 The CEO raises the issue of planning consent in these proceedings on the basis that whether or not the child care uses have planning approval is relevant to a determination of the issue that arises under s 206(2)(b) of the 2004 Act, namely, whether the place at which the child care services are to be provided is "suitable for that purpose". The CEO suggests that, if the proposed child care services should have planning consent under DPS 2 and there is no such consent, then it is reasonable to conclude the "place" at which the child care service is to be provided is not "suitable" for that purpose as required by s 206(2)(b) of the 2004 Act.
100 The Tribunal does not think that s 206(2)(b) when it refers to a "place" being "suitable for that purpose" means to comprehend the question of suitability from a town planning perspective under DPS 2. Rather, the 2004 Act is concerned with the particular place at which the child care service is to be provided being "suitable for that purpose". The main focus of an inquiry into suitability is as to the particular premises and their size, design and adaptability to the proposed use of the place for the provision of the proposed child care service.
101 However, the Tribunal would not say that an enquiry into the suitability of a place for the purpose of the child care service may never extend to the suitability of that place having regard to the amenity of the location in which it is situated. For example, if it were proposed to locate a child care service in premises in a heavy industrial area, a question may arise as to the suitability of that place because enrolled children may be exposed to a range of circumstances that, from a health and safety perspective, may be considered positively detrimental to the children's wellbeing.
102 Ordinarily, however, one would not expect the inquiry into suitability to include an inquiry as to whether or not, from a planning point of view, the location of a child care service is or is not appropriate in a particular part of a municipal district having regard to the planning considerations set out in a planning scheme like DPS 2. When a local government in the exercise of discretionary controls under a town planning scheme is faced with the question of whether or not a particular use should be approved in a particular location, it has regard to a range of factors as to whether or not that use will be congruous with other uses in
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- that location and whether or not it will adversely impact on other uses or otherwise affect the amenity of that locality. These are not issues that one would expect the CEO to consider under a s 206 suitability inquiry.
103 In other words, the planning authorities have a role to play in respect of the proper assessment of a proposed use of land for child care services from a planning perspective and the CEO has a role to play in respect of the suitability of the "place" at which it is proposed to carry out the child care service having regard to the nature of child care services and the principles that underlie their operation, which are principally set out in s 199 of the 2004 Act. While these roles may sometimes overlap in relation to certain considerations, they are fundamentally different in purpose and nature.
104 In these circumstances, while it may often be appropriate - and one would think, as a matter of good public administration, sensible - for the CEO when dealing with applications for licences in respect of child care services to inquire whether the applicant has already obtained planning approval to conduct the proposed service, the question whether such planning consent has been given will not ordinarily be determinative of the application for a licence made under the Act. Accordingly, the CEO should not, as a matter of law, either refuse to deal with an application for a licence made under the Act or dismiss it out of hand because planning consent is required and has not yet been obtained.
105 On the other hand, if planning consent is required and has already been refused, a question as to the capacity of the place to be used at all for a child care service would obviously arise and it would seem unnecessary, in such circumstances, for the CEO to have to go to the trouble and expense of considering the application if, as a matter of planning law, it cannot be carried out on the land. In such circumstances it may well be open to the CEO not to grant a licence because, as a matter of general principle, the fact that planning consent has been refused for the proposed use the subject of the application for a licence under the Act, is a relevant factor in the exercise of the discretion to grant or not to grant a licence under s 205(1) of the 2004 Act.
106 However, to make it quite clear, the Tribunal does not consider it is incumbent on the CEO to conduct a separate inquiry as to whether a planning approval will be forthcoming in cases where the planning consent issue has not been determined by the local authority; or is ambiguous, as in this case. Rather, it is open to the CEO in such a case, if a child care service licence is granted, to make it a condition of the licence
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- that the applicant must obtain any necessary planning approval to carry on the child care service at the specified place. Such a condition may, in one sense, be considered otiose as the applicant will be required to comply with whatever the general law requires. However, in terms of good public administration, the imposition of such a condition makes sense because it will bring to the attention of any applicant, who is otherwise unsure about the extent to which the licence under the Act constitutes a planning approval, that it is also necessary to obtain any necessary planning consent. In that way, the law relating to planning and development and the law relating to child care services may appropriately be harmonised in practice.
107 In this case, as we have seen, at earlier stages when the Department considered the application of the applicant during 2006, the question of planning approval did not arise. The Department appears to have assumed at all material times that there was planning approval for up to 425 people to be in the premises at any one time, including children enrolled in child care service programmes. The Tribunal does not consider these proceedings to be an appropriate occasion on which to try to unravel the complete story relating to the planning approval history of the premises and whether or not the applicant currently should have planning consent to conduct the licensed child care services and, if so, whether it has a relevant planning consent. These issues may be left to the applicant and the City to resolve. All that needs to be said is that the applicant is on notice, as it appears to have been when it first made inquiries of the City, that there may be an issue concerning its compliance with relevant planning laws in operating the licensed child care services at the Elcar Lane premises.
The issue of two licences or one licence
108 As stated in the account of the factual background to the issue of the licence for the vacation care service, when the applicant applied in August 2006 to renew its existing licence, licence 4822, the Department advised the applicant that it would treat the renewal application as an application for new licences for:
(1) a before school/after school care service during the school year; and
(2) a vacation care child care service.
109 The reasons why the Department chose to approach the renewal application in this way are quite understandable. Whether or not one or
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- two licences were to be issued, the question of vacation care raised a different set of considerations from the application for the before school/after school care service. If a single licence had been issued, it would have had to deal separately with the two quite separate proposals.
110 In fact, as noted in the course of explaining the legislative context in which the decision under review needs to be made, s 205 of the 2004 Act creates rules about the licence issuing process. By s 205(4) a licence cannot be granted to two or more persons. The licence here referred to is of course the licence to provide a specified type of child care service at a specified place. It would seem impractical, at the very least, to have two different persons licensed to provide the same specified type of child care service at the same specified place. It would mean, presumably, that two separate groups of children might be in the same place at the same time. However, s 205(4) does not mean that there cannot be more than one licence that applies in respect of the one place. Section 205(5) makes it clear that a single person may be granted two or more licences for the same type of child care service or for different types of child care service. But this is subject to s 205(3), which forbids a licence being granted in respect of more than one child care service.
111 The result, in my view, is that it is open to the CEO to grant a licence for a before school/after school child care service at a specified place and then to grant a separate licence for a vacation care child care service at the same specified place. To issue two licences to the same person in those circumstances does not contravene the proscription in s 205(3) that a licence cannot be granted in respect of more than one child care service. In such circumstances, there are two child care services, each of which is different from the other, and each of which is the subject of a separate licence to the one person.
112 In summary, s 205 evinces an intention that there should be a licence for a specified child care service at a specified place and care should be taken to ensure that each applicant has a single licence to provide a specified type of child care service at a specified place. However, nothing prevents one person holding more than one licence.
113 In the circumstances, the Tribunal considers it was open to the CEO ultimately to treat the renewal application of the applicant in August 2006 as separate applications for new licences for:
(1) a before school/after school child care service; and
(2) a vacation care child care service.
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114 It might also be said that as a matter of good public administration, issuing a separate licence for each service is a desirable practice because it means an applicant will be quite clear about what activities are subject to what licences and it should therefore help to avoid confusion as to what specified activities are licensed in a specified place.
115 This process should also aid an applicant and the CEO at a later time should an application for renewal of a licence be made or other action be required at the instance of the CEO under the Act or Regulations.
The issue concerning the condition specifying a maximum of 71 children
116 The primary area of contention in these proceedings is whether or not it was reasonable for the delegate of the CEO to impose the condition specifying that the maximum number of children that could be enrolled in vacation care under licence 5452 is 71, or whether the "correct and preferable" decision would permit the number of 143 contended for by the applicant.
117 The relevant regulatory context in which this decision is made has been outlined above. The applicant in particular draws attention to reg 29(1)(a) of the 2006 Regulations which provides that a licensee must ensure that the place has:
"an area of indoor space suitable for children's play of at least 3.25 [square metres] multiplied by the number equal to the number of children specified in the licence".
- The applicant contends, in effect, that reg 29(1)(a) entitles a licensee, as a matter of law, to enrol as many children in a programme under the licence as satisfies this formula, in this case, 143 children. In the opinion of the Tribunal, that is not so.
118 As noted earlier, under s 206(2)(a) of the 2004 Act a licence must not be granted by the CEO, unless the CEO is satisfied that the applicant is capable of providing a child care service "in accordance with the regulations" and the terms and conditions of the licence. This provision thus draws attention to reg 29(1)(a) amongst others.
119 What reg 29(1) does is require, as a fundamental principle, that the amount of indoor space and outdoor space suitable for children's play be of at least the prescribed area having regard to the number of children specified in the licence. It is not a provision that dictates how many children an applicant is entitled to have specified in the licence. The question of how many children should be specified in the licence remains
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- for consideration by the CEO in exercising discretion as to whether or not a licence should be issued at all.
120 However, there is an obvious relationship between the number of children specified in the licence and the available area of indoor and outdoor space suitable for children's play. The CEO will not issue, indeed under s 206(2)(c) must not issue, a licence unless satisfied that there is the required minimum space for the number of children that the applicant proposes should be specified in the licence. A practical obligation falls on an applicant to demonstrate there is enough space to meet the regulatory requirement.
121 However, this leaves the question as to what, in the particular circumstances, the number of children to be specified in the licence should be. As to the exercise of this discretion, the 2004 Act provides guidance. It is not a discretion to be exercised arbitrarily. It is to be informed by rational considerations relevant to the licensing process.
122 Part 8 of the 2004 Act contains an intricately designed regulatory system. What that system is designed to achieve is made clear by s 199 which sets out the "guiding principles" that must be observed in the administration of that part of the Act and the 2006 Regulations referred to in s 232. Pursuant to s 199(1), the following principles must be observed:
"(a) the principle that a child care service should be provided to a child in a way that -
(i) protects the child from harm;
(ii) respects the child's dignity and privacy;
(iii) safeguards and promotes the child's wellbeing;
(iv) provides positive experiences for the child;and
(v) stimulates and develops the child's creative, emotional, intellectual, physical, recreational and social potential;
(b) the principle that child care services should be provided in a way that:
(i) involves parents of the children to whom the services are provided and other members of the community;
- (ii) reflects best practice in the care, education and recreation of young children; and
(iii) reflects the diverse nature of the community."
- Depending on the particular matter of administration of the Act arising, some or all of the principles may be relevant.
123 Section 199(2) says that these principles are in addition to and do not derogate from the principles set out in Pt 2, Div 2 and Div 3 of the 2004 Act. Of these other principles, that set out in s 7 is obviously important in the present context, namely:
"In performing a function or exercising a power under this Act in relation to a child, a person or the Court must regard the best interest of the child as the paramount consideration".
124 Section 8 sets out matters that must be taken into account for the purpose of determining what is in a child's best interest.
125 Section 9 also sets out some guiding principles that might be considered relevant to an application such as the present:
"(c) the principle that every child should be cared for and protected from harm;
(d) the principle that every child should live in an environment free from violence;
(e) the principle that every child should have stable, secure and safe relationships and living arrangements … "
126 Division 3 then goes on to specify special principles relating to Aboriginal and Torres Strait Islander children. These are in addition to and not in derogation of those specified in Div 2.
127 For present purposes, the guiding principle set out in s 199 may be said to incorporate or reflect the paramount principle specified in s 7 and the guiding principles mentioned in s 9(c), s 9(d) and s 9(e) and therefore provides the primary factors to be considered when a decision needs to be made whether to grant or not to grant a licence under Pt 8.
128 In the present proceedings, the guiding principles set out in s 199(1)(a) are perhaps the most relevant, although the principle set out in s 199(1)(b)(ii) may also be considered important, although to some extent encompassed by some of the factors in s 199(1)(a).
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The applicant's vacation care proposal
129 The applicant's premises at Elcar Lane, Joondalup, comprises a large indoor space suitable for children's play. For the purposes of the vacation care licence it is divided up into smaller areas. In the result, one large area is open to the public. It includes a large climbing structure which is accepted by all to be very attractive to and great fun for children. Parents or adults accompanying children are able to go with the children onto the climbing structure to supervise their activities. During vacation periods, the climbing structure is the main attraction and activity for children who go to the premises with their parents or others who accompany them.
130 Adjacent to the climbing structure in the public area the applicant has fenced off three areas, which may for present purposes be called areas A, B and C. The fencing is to a standard approved by the CEO and is in an attractive yellow colour a little over a metre in height and fitted with gates that open and close much like swimming pool gates. Small children cannot easily open the gates from the outside or the inside of these enclosed areas.
131 Areas A and C are those identified by the licence as licensed for vacation care services. Area A includes within it three "theme rooms", which include a superheroes room, an aquarium room and a fairy room. It seems that these rooms were initially part of the Go Bananas Children's Activity Centre and often used for children's theme parties. For the purposes of the vacation care service, however, they provide children with an opportunity to sing and dance from a platform in the first theme room; spend time in construction activities in the second theme room; and to dress up in the third theme room. They are not large rooms and probably can only comfortably accommodate seven or so children. The balance of area A outside the theme rooms includes a number of tables and chairs and a small reading section which is used for a variety of activities including craft activities. Mr Botros says that up to 120 children can be or could be seated on stools around 10 or so tables in area A. Thus, children could eat their morning teas and lunches in area A.
132 It should be observed at this point that the vacation care service is open to children aged 5 - 12. Mr Botros told the Tribunal that there are no particular age or gender profiles for children who are enrolled for the vacation care service. They are of all ages and include boys and girls.
133 Area C is a smaller area than area A and does not include any enclosed areas. It has a number of installations and the like that can be used for gross motor skills, including smaller climbing structures than the
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- large climbing structure in the public area, other apparatus and balls, badminton racquets and shuttlecocks.
134 Mr Botros explained that children in the vacation care programme are organised into groups of 10 who are supervised by an individual carer. He suggested that this ratio was slightly better than that required under the 2006 Regulations. Mr Botros explained that at different times of the day different groups are taken to the different areas and have the opportunity to engage in different activities.
135 Mr Botros also explained that the vacation care service is available from 7 am to 6 pm, Monday to Friday. While witnesses called by the Department, particularly Ms Sandover and Ms Susan Scott, stated that in their experience most parents deliver their children to a child care centre at around 8.30 am and collect them from 4.30 pm onwards, and particularly just after 5 pm, Mr Botros suggested that a good number of children in the vacation care programme are in fact delivered to Go Bananas between 7.30 am and 8 am and remain until the 6 pm closing time.
136 Mr Botros explained that the public area of the premises remains open to children not enrolled in the vacation care service from 9 am to 5 pm during vacation periods. He said that in the time before 9 am and after 5 pm the children enrolled in vacation care are able to have access to the large climbing structure in the public area. However, at other times it seems that the climbing structure in the public area is not open to regular use by the children in vacation care.
137 Area A is separated from area C by a smaller area B. Area B contains a variety of toys and apparatus that are suited to children of the years 0 - 5. It is not open to children enrolled in vacation care. This means that when groups of enrolled children are moved between areas A and C, or C and A, with the guidance of a carer, they pass through the public area alongside the large climbing structure and past area B. Similarly, when enrolled children are taken to the bathroom/toilet area - which is immediately adjacent to area C and at the rear of the public area at the back of the premises - they also pass through the public area, including by an area in which tables and chairs are set up for use by parents and children to enjoy food and beverages. At the front of the premises, just on the left when one enters through the main access, is a café area which also serves food and beverages. One of the gate entries to area A is reasonably adjacent to the café area.
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138 The applicant publishes brochures for interested persons setting out the nature of the vacation care offered by the applicant. The programmes include time spent at the premises in Elcar Lane - which the applicant calls "incursions" - as well as various excursions off-site. The Tribunal received in evidence a copy of the vacation care programme proposed for the week of 9 July 2007. Four of the five days involved excursions. Mr Botros confirmed that this was so. When excursions are conducted, the enrolled children arrive at the Elcar Lane premises in the morning, and after morning tea are taken by bus on the relevant excursions. They usually return to the premises after lunch, at around 3 pm - 3.30 pm.
139 Accordingly, the vacation care based at the Elcar Lane premises involves activities off-site for a good part of the time, although, on the evidence given by Mr Botros, many of the children spend at least two hours at the premises in the morning before going on an excursion (on an excursion day) and then spend another two hours or more at the premises once they return from an excursion (on an excursion day). Thus, the suitability of the premises for the conduct of a vacation care service is agreed as an important issue in these proceedings.
140 As noted, s 206(2) of the 2004 Act specifies that the CEO must not grant a licence unless satisfied that a number of factors are met. Of those, the factors set out in s 206(2)(a) and s 206(2)(b) concerning the capability of the applicant to provide a child care service in accordance with the regulations and the terms and conditions of the licence, and the suitability of the place for the purpose of the child care service, are the most important factors raised in these proceedings.
141 There is no question of the licence or an equivalent authority having been cancelled in the past, or of the applicant not being of a sound financial reputation and stable financial background, or the application relating to the provision of a family day care service to enliven the considerations in s 206(2)(c), s 206(2)(d) or s 206(2)(e).
142 In short, the CEO by the delegate considered that the vacation care service proposed by the applicant could appropriately be conducted at the place of the Elcar Lane premises but, by reason of the concurrent public use of the premises, only if the enrolled children were confined to the licensed areas and were limited in number.
The suitability of the place and the wellbeing of children
143 The CEO called two primary witnesses to support the decision made by the delegate of the CEO to limit the number of children who could be
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- enrolled under the vacation care licence to 71. Ms Penny Sandover, Team Leader with the Child Care Licensing and Standards Unit in the Department, was called. She had been closely involved in the assessment of the applicant's application and in the provision of advice to the delegate, Mr Jolly. Ms Susan Scott was also called by the CEO to give evidence as an expert witness in relation to the delivery of outside school hours care programmes for children and youths. Additionally, Mr Jolly gave evidence concerning his decision.
144 Ms Sandover's evidence was based on her familiarity with the premises and the proposed vacation care service gained through seven licensing visits to the premises since 6 August 2004. As noted above, Ms Sandover has also become familiar with the proposal of the applicant in the course of the exchange of correspondence between her on behalf of the Department and Mr Botros.
145 Ms Sandover's concerns about the applicant's proposal for a vacation service for 143 children centres on the fact that the general public have access to the premises at the same time as the vacation care programme is operating. She believes that extra care and consideration is required in assessing the proposal in these circumstances. This is because a number of risks arise.
146 Ms Scott had not been involved in the earlier Departmental decision-making and gave independent evidence concerning the question of risk. She confirmed that, in her opinion, the Elcar Lane facility poses a number of challenges that severely impact on the safety, health and wellbeing of children enrolled in the service if the care of the children occurs at the same time that the general public have access to the facility.
147 Indeed, Ms Scott's view, unlike the ultimate assessment made by Mr Jolly on the advice of Ms Sandover and others in the Department, is that an outside school hours care service should not be offered at all in the Elcar Lane premises when the general public are also using the facility. However, she accepted that if the CEO were to authorise such a service, then the numbers of children permitted to be enrolled should be limited to a "minimal" number.
148 Spontaneous access concern: Ms Sandover gave a number of reasons why the number of children should be limited under the licence. The first is that the enrolled children have no "spontaneous access" to outdoor play space within the licensed area.
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149 Ms Sandover explained her concern in this regard was that whereas most licensed outside school hours care services have sole use of indoor and outdoor play areas that are adjacent to each other, the proposal here involves only indoor space which is, at material times, adjacent to space used by the public, and there is no immediate access to an outdoor area.
150 It is noted above that when the licence was granted, the delegate of the CEO also waived the requirement in reg 29 that outdoor space be provided. This was on the basis, principally, that across Elcar Lane from the premises is a large public open space reserve.
151 So far as spontaneous access to outdoor play space is concerned, Ms Sandover said that it is as crucial that there are spontaneous opportunities for children to run, do ball skills and climb, as it is to have the opportunity to relax, retreat or even doze.
152 She said that at the Elcar Lane premises, when the general public are using the venue the children need to be closely supervised to traverse the public areas - through the refreshment, entertainment and play areas, entrance area and across the car park to the reserve.
153 She said that by comparison, the Arena Joondalup vacation care service is licensed for up to 104 children and operates with the sole exclusive use of the indoor play space.
154 The major distinction between these different types of services drawn by Ms Sandover was that staff are better able to position themselves with unimpeded vision to supervise children as they access spontaneously the indoor and outdoor programmes. At Arena Joondalup this can be done by the supervisors in the whole of the indoor space. However, at the Elcar Lane premises, where the children in the vacation care service are confined to spaces alongside the areas that can be accessed by the public, this is less easily done.
155 Ms Scott expressed a similar concern. She said that having spaces occupied by the general public between the two licensed indoor play areas creates additional supervision requirements.
156 In particular she thought that the movement of children through areas used by the public potentially places children in a situation of greater risk. Young children in particular may be distracted and wander away from staff, may move into unlicensed areas to play - for example on the climbing equipment - without staff noticing, and the ability to manage interactions between the children and the public will be very difficult.
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157 Ms Scott also suggested that this meant that the children might also be exposed to the risk of tea or coffee being spilt on them if they were unsupervised in the café area.
158 Ms Scott said that the development of responsible behaviour in children is strongly influenced by the environment. Movement between play areas should ensure that accidents are prevented and collisions cannot occur.
159 Ms Scott also expressed concern that a range of motor skills can only occur in the local reserve across the road from the premises and the process of entering and leaving the facility has its own difficulties.
160 Noise: Both Ms Sandover and Ms Scott drew attention to the level of background noise in the premises which would add to the difficulty of supervision in the two licensed areas, as well as in the three theme rooms. Ms Sandover mentioned the steady background noise from the air conditioning in the facility. She also mentioned that the noise can be considerable when a large number of children are using the public area and there are an additional number of children enrolled in the vacation service. Indeed Ms Sandover advances the second reason for limiting the number of children to 71 as the resultant noise, extra activity and reduced opportunity for enrolled children to relax and recreate when their numbers are added to the public who may access the premises.
161 In this regard, Ms Sandover understood that the maximum number of persons allowed in the facility was 425. She referred to the certificate classification and advice that she had received from an officer of the City in this regard. On this basis, Ms Sandover understood that up to 425 people - adults and children, including children enrolled in the vacation care service - could be present in the building at any one time. Ms Sandover said that the resulting collective noise means that staff and enrolled children all have to raise their voices to be heard and staff can be compromised in listening to what is happening with children. She said staff need to discriminate between sounds that say "All is well" and sounds that say "Something is not right". A yell, a cry, a sudden bang, swearing or abusive language are indicators that staff's attention may be required.
162 Ms Sandover referred to research documenting the effect of noise on children. She said that the effects of noise are largely negative and the research categorises concerns about:
• the auditory system;
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- • physiological effects - elevated blood pressure levels;
• motivational effects - uncontrollable noise can make children more vulnerable to learned helplessness, less likely to resolve a puzzle or persist at it, and have less tolerance for frustration; and
• cognitive effects - may interfere with memory tasks, and children's ability to discriminate with meaningful auditory stimuli.
163 Ms Sandover considered that there is limited opportunity to withdraw from incessant noise at the Elcar Lane facility, apart from the small theme rooms. She drew a comparison with Arena Joondalup which has a capacity for a choice of passive activities in a connecting function room.
164 Ms Scott also drew particular attention to noise within the facility. She said that the "highly stimulating nature of the facility" reduces opportunities for enrolled children to relax or recreate when sharing facilities with the general public. She considered staff members caring for children would be unable to influence the general noise level of the facility. Ms Scott emphasised that children in outside school hours care services need time to withdraw to quiet spaces for reflection, contemplation or quiet activities such as reading, board games and chatting with friends. These periods are important for children to refresh, rest and develop social skills.
165 Ms Scott considered it is not healthy for a child to be cared for in a highly stimulating environment for long periods of time because they become tired, irritable and will not return to school feeling rested and refreshed after the holidays.
166 She too noted that the only opportunities for quiet space were the theme rooms.
167 The large climbing structure: Ms Sandover also drew attention to what she called limited opportunities for the enrolled children to use the large climbing structure in the public area at times that the general public are admitted to it.
168 In this regard, as noted earlier, Mr Botros indicated that enrolled children have the opportunity to use that climbing frame between
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- 7 9 am, before the public are admitted at 9 am, and again after the public leave at 5 pm, between 5 6 pm.
169 Ms Sandover drew attention to the fact that in area C that there is a small climbing frame suitable for use by up to 7-year-olds but it would be inappropriate for up to 143 enrolled children.
170 Ms Scott expressed concern that the major climbing facility in the public area is very popular with children, and for children in the vacation care programme not to have access to it during other times of the day "would be similar to showing a child an ice cream and not allowing the child to eat it".
171 Extra supervision requirement: Ms Sandover also drew attention to the need for extra licensed staff to be involved in the supervision of enrolled children moving between the separated licensed areas and in accessing bathroom facilities at the times the general public are admitted to the facility.
172 She said that additional close supervision is required in both instances as staff have to guide children through the refreshment seating area and the designated general entertainment public space. Ms Sandover said she had observed eight unsupervised children returning from playing on the bouncy castle and the mingling of children in the general public area who were playing in and through the bollards and chain link fencing. (This fencing has since been replaced with fixed, continuous fencing.) Ms Sandover emphasised the need to demonstrate safe bathroom procedures.
173 Ms Scott also emphasised that extra care is required to supervise enrolled children, especially when accessing the bathroom facilities. The concern here for both Ms Scott and Ms Sandover is that children not be exposed to the attention of strangers that could put them at physical risk.
174 The theme rooms: Ms Sandover also drew particular attention to the three theme rooms that are part of area A. She considered them to be of limited suitability for children's sustained play.
175 She emphasised that the only spaces for children to withdraw from the noise and gaze of the general public are these small windowless activity rooms. She emphasised that each has a maximum floor space of 22 square metres. She said that each could only properly be occupied by up to seven children. The rooms do not connect with each other.
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176 Ms Sandover said that in five visits since the initial licence was granted she had only once observed children using these rooms as part of the programme. On that occasion a small group were being encouraged to play board games.
177 Similarly, Ms Scott considered these theme rooms to be not suitable for long periods of play for children. She said that they were designed for children's parties and primarily for eating party food while seated. She considered they provided limited appeal as play areas.
178 Ms Scott also drew attention to the fact that the rooms are windowless and the only light is artificial light. She too was concerned that they limited the capacity for proper supervision of children.
179 Assessment of 71 children: Mr Jolly said that in the light of the recommendation and the reasons for the recommendations initially advanced to him by Ms Sandover following her assessment of the premises and the application, he was not satisfied that allowing the vacation care service to be licensed for a total of 143 children during times when the facility was open for use by the general public, was in the best interests of the children who would be attending the licensed service.
180 Mr Jolly explained how the number of 71 was arrived at. So did Ms Sandover. Mr Jolly accepted that there was a certain subjectivity in the final assessment of these numbers. However, he said that in setting the maximum number he took into account the need to safeguard the wellbeing of the children attending the service and what was in their best interests.
181 Mr Botros' response: Mr Botros did not accept that the reasons advanced by Ms Sandover and Ms Scott were valid or justified the limitation of the number of children to be enrolled in the service to 71.
182 As to the question of spontaneous or immediate access to outdoor space, Mr Botros said the position at Arena Joondalup was comparable to that at the applicant's service, in that neither had immediate access to an outdoor area.
183 As to the question of noise that might arise from up to 425 persons being in the premises at any one time, Mr Botros drew attention to the fact that the children in the vacation care service would be confined to the licensed areas A and C. He explained that the areas were suitably fenced off and could accommodate 143 children.
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184 He emphasised that the indoor space requirements complied with reg 29. He said that nothing in the 2004 Act or 2006 Regulations specified any "mechanism for amending the indoor space requirements based on noise level, or required time for children to relax and recreate." He said that the applicant's care service is conducted on the basis of a professionally designed and supervised programme which adheres to the 2006 Regulations in other respects.
185 He said that if the Department regards 425 persons as being excessive then attention should be given to the fact that Arena Joondalup can have in excess of 1000 people using the facility and is licensed by the CEO for more than 120 children for vacation care; yet there has been no alteration of a similar sort to the licence granted in that case.
186 Mr Botros explained in relation to the use of the large climbing frame in the public area that it can be used both before and after the times of 9 am and 5 pm. He also drew attention to the range of the gross motor skill development activities in area C which are available to the children who are taken to that area. Mr Botros was at pains to point out that not all of the 143 children would be in area C at the one time, and the children would be taken in small groups of about 10 by a supervisor from one area to another to enjoy the range of activities, including the opportunity to enjoy the theme rooms.
187 As to the need for additional supervision of enrolled children moving between separate licensed areas, to the bathroom facilities and through the general public areas, Mr Botros emphasised that this was a question of proper management and that cards are used by the applicant to control the visits of children to the bathroom.
188 Mr Botros objected to criticism of the theme rooms made by Ms Sandover and Ms Scott. He considered them to be subjective and inaccurate. He said that they provided more choice for children and a much richer programme of activities.
189 He said that there was nothing in the 2006 Regulations that specified the number of windows that should be in a facility or in a room like the theme rooms.
Tribunal's findings
190 The Tribunal, as noted earlier, had the advantage of viewing and inspecting the Elcar Lane premises, at which place the applicant is currently licensed to operate a vacation care service with a maximum of
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- 71 children. Accordingly, the Tribunal viewed areas A and C and inspected the three theme rooms. The Tribunal also noted the public areas, including the café area near the entrance, the major climbing structure and the food and beverage seating area to the rear of the premises, as well as the bathroom facilities to the rear of the premises and adjacent to area C.
191 The Tribunal also noted the range of apparatus, equipment, toys, play things and reading materials available to children enrolled in the vacation care programme. It observed the three theme rooms and how they were set up, including the dressing up clothing in the fairy room.
192 The Tribunal also notes that the applicant utilises the licence or proposes to utilise the licence to operate vacation care services by having enrolled children at the premises at Elcar Lane but also taking them out on excursions. This means that the children would not be in the premises at Elcar Lane all of the time.
193 Nonetheless, it is accepted by all that the enrolled children are or will be present in the premises for much of the time between 7 am (or when they arrive between then and usually no later than 8.30 am) and about 9.30 am or thereabouts on the days that the children go on excursions (about four days each week). The enrolled children are also on the premises from about 3.30 pm until up to 6 pm on the days that excursions are conducted. They are in the premises on non-excursion days all day from when they arrive after 7 am until when they leave before 6 pm, although they may visit the reserve across the road or a nearby indoor sports facility.
194 The Tribunal considers that these periods during which the enrolled children are present in the premises are significant periods from a child care point of view.
195 While the space available in the premises within the licensed areas A and C (including the three theme rooms in area A) satisfy the minimum requirements in reg 29(1)(a) for a service that cares for 143 children, that does not of itself mean that the applicant is entitled to have a licence for 143 children in the licensed areas.
196 The Tribunal accepts the proposition put on behalf of the CEO that the licensing requirements of the 2004 Act and the 2006 Regulations are premised on an understanding that the whole of the premises is ordinarily available for the purposes of the licensed service. To put that another way, it is not ordinarily anticipated that a large premises will be divided
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- up in the way the applicant proposes in this case, such that some of the premises will be used for a licensed service and other parts will be put to public use.
197 Where a large premises such as that operated by the applicant at Elcar Lane may be used for a children's activity centre in relation to the public space, as well as for a vacation care child care service, different or additional factors from those that would ordinarily arise where there are no competing uses, arise for consideration.
198 Ordinarily, for example, where children are being cared for in a place where there are no competing or adjacent uses from members of the public, no real consideration needs to be given to the interaction of the enrolled children with other persons within the place where they are being cared for.
199 In this case, however, the enrolled children are to be supervised within areas A and C which are merely separated by a small, albeit secure, fence from the public areas of the premises.
200 To the unaware or uninformed onlooker who enters the premises through the main entrance, there would be no particular reason, apart from the fact that the children being cared for usually wear a yellow t-shirt over their clothes, to treat the children playing in areas A and C as falling within a different class of entrant from those playing in the other main areas of the facility. However, the fact is, under the licence, the children in areas A and C are to be kept within areas A and C and are to be supervised at all times. If they are to go from area A to area C or from area C to area A, they must be properly supervised. They are not to go off and play on the major climbing structure in the public area and they are not to go into the bathroom area without supervision.
201 Additionally, a number of other difficulties arise in these particular circumstances. Because the vacation care service is within the one large premises where members of the public may mingle, as well as where the enrolled children are playing, considerable noise is or will be generated. The witnesses give evidence of ordinary background noise generated by air conditioning. The Tribunal noted that background noise when it visited and inspected the premises. Once 143 enrolled children, if that number were to be permitted, plus whatever number of members of the public enjoying the public facilities are present in the premises, the Tribunal accepts that there is likely to be a very high level of noise.
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202 The Tribunal is concerned that this level of noise is not conducive to the general wellbeing of children who are present in the premises for reasonably long periods of time; even though for significant portions of that time they may be away from the premises on excursions. While it is suggested by the applicant that some quiet time can be enjoyed in the three theme rooms, that does not seem to be the primary purpose of those rooms. They may provide some respite from the noisy activities outside them, but they will, in the Tribunal's estimation, be of limited utility in that regard. Moreover, Mr Botros explained that the theme rooms themselves are intended to be used for activities. Those activities include singing and dancing in one room, constructional activities in a second, and dressing up as fairies in the third. The activities in these rooms are also likely to be attractive - as Mr Botros suggested they are - and so are not in themselves conducive to particularly quiet times.
203 The Tribunal also accepts that for young children between the ages of five and 12, the climbing structure in the main public area is very attractive and there will be pressure for some of the 143 children, if that number were enrolled, to be able to play in that area at the same time as the public has access to it.
204 The Tribunal accepts that the careful supervision of 143 children may help to minimise the risk to children passing through the public areas to gain access to the large climbing structure when they are not meant to, and using the bathroom facilities when required. However, the Tribunal does not consider such an arrangement would be optimal. In reality, these premises were not purpose-designed for a carefully developed child care service - or even a vacation child care service such as that proposed by the applicant - which is intended to operate alongside a children's activity centre to which the public have access, as is proposed here.
205 The Tribunal is concerned that 143 children in areas A and C (including the three theme rooms) will be a very tight arrangement. Even if the children were split up in 14 groups of 10 (with three children spread amongst three of those groups), there would still be a considerable number of children in each of areas A and C. They would be competing for the apparatus, toys and other facilities in each of those areas; and they would require very careful supervision in a very noisy environment.
206 When the children take morning tea or lunch or afternoon tea in the building, it would also prove very difficult for them to be properly accommodated within the area A where the tables and stools for the children are located. Even though Mr Botros explained they can often
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- take lunch at the reserve across the road, this is unlikely always to be a practical option.
207 There would of course be no difficulty with accommodating 143 children in the premises if the public were not entitled to access the public areas. However, that is not the arrangement put forward by the applicant.
208 In the event, the Tribunal agrees with the assessments made by Ms Sandover on behalf of the Department and Ms Scott who independently assessed the suitability of the premises and the licensed areas for the accommodation of the 143 children as proposed by the applicant. The Tribunal accepts in substance the main reasons put forward by these witnesses called by the CEO that support the decision made by Mr Jolly as the delegate of the CEO to limit the number of children under the licence to 71.
209 There are some reasons put forward however that the Tribunal does not think are well based. For example, there was some concern expressed that children might be put at risk of what might, for present purposes, be called "stranger danger". In a building of this sort where public access is limited to children accompanied by responsible adults who have come to play on the large climbing structure, there is little evidence to suggest that adults wishing to prey on vulnerable children would gain access to the facility. If they did, in all probability they would be spotted rather quickly by the supervisors engaged by the applicant to operate the child care service. In the circumstances the Tribunal does not consider this to be a real risk, although it is a proper factor to be regarded.
210 The Tribunal also does not accept that there is any real risk to children of having hot tea or coffee spilt on them if they are passing between areas A and C, or to the other areas, or to the bathroom. While 143 children under the licence undoubtedly would add to the general congestion and noise, this concern about spilt hot beverages is speculative.
211 However, these more speculative factors highlight the real issue. That is, 143 enrolled children in the facility, with the public numbers, are simply too many.
212 The Tribunal thinks that it is appropriate to limit the number of children who may therefore be enrolled under the licence.
213 In this regard the applicant challenged the decision to limit the numbers to 71 as merely subjective. The Tribunal does not think it is a
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- subjective decision. As Mr Jolly explained in his evidence, the number was limited by reference to what is in the wellbeing of children and their best interests. Once the decision is properly made that 143 children is too many, and that only some lesser number of children may be permitted under the licence, the question becomes what a reasonable number may be. The way the delegate of the CEO made this decision was to consider that it would not be unreasonable to base the maximum number on the maximum number of children who could be permitted under reg 29(1)(a) if there were not competing considerations. The delegate considered half that number in the circumstances was reasonable.
214 The Tribunal considers that this formula, in the special circumstances of this application, is not an unreasonable way to calculate the number of children to whom the licence relates. For a good portion of time the children enrolled in that service will enjoy off-site excursions. They will not be in the premises all the time. However, when they are on the premises they should not experience the effects of congestion and noise and should be able to enjoy those facilities under proper supervision. All in all, halving the maximum number of children that would be entitled to be in the premises if there were not the competing public users is a proper approach to the making of this difficult decision.
215 In the particular circumstances of this case, therefore, the Tribunal considers that the correct and preferable decision is that which has been arrived at by the delegate of the CEO. The Tribunal would affirm the condition limiting the maximum number of children who may be enrolled under the licence to 71.
216 However, the Tribunal emphasises that the decision it has arrived at on the merits of this case, is confined to the particular circumstances raised by this case. The Tribunal does not mean by this decision to validate the formula, or approach, described to set a maximum number of children for the licence in this case for all other cases. Each case will need to be considered on its merits, if and when the issue arises.
Policies
217 The Tribunal also notes that presently the CEO has not published any formal policies or guidelines as to how the discretion to issue a licence in respect of child care services outside school hours, including vacation care, is to be exercised.
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218 No doubt the decision-making in this case will help contribute to the development of a policy or policies that might help to guide decision-making in the future.
219 The Tribunal confirms the importance of the Department developing appropriate policies over time in this regard. Policies, of course, often reflect the experience in decision-making in like cases and are not quickly and easily devised.
220 Nonetheless, the Tribunal encourages the CEO to develop appropriate policies for the future, noting the detail of such policies may increase over time.
221 It will also be important in the development of such policies to consult with key stakeholders, including licensed operators.
Conclusion and Order
222 For the reasons given above, the Tribunal considers the correct and preferable decision in this proceeding is the decision arrived at by the delegate of the CEO, namely, to grant the licence for vacation care services at the premises at Elcar Lane, Joondalup, on the basis that the licensed areas be limited to a maximum number of 71 enrolled children.
223 In these circumstances the Tribunal makes the following orders:
(1) The decision by the delegate of the CEO to grant the applicant a vacation child care licence in respect of the licensed place at Elcar Lane on the condition (amongst others) that the maximum number of children is 71, is affirmed.
(2) The review application is dismissed.
I certify that this and the preceding [223] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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