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Waivers for physical environment

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This page provides information for services regulated under the National Quality Framework (NQF) or the Education and Care Services Act 2013 (ECS Act).

Services under the NQF

In special circumstances, including unexpected events, the regulatory authority (the department) may grant a waiver if an approved provider cannot meet certain operational or legislative requirements.

In considering a waiver, the department will be guided by the objectives and guiding principles of the National Law.

The department may grant a waiver as a last resort so the service can operate.

Approved providers should explore all possible ways to meet the requirements before making a waiver application.

What aspects in the physical environment can be waived?

Approved providers can seek a waiver for aspects of the physical environment including fencing, indoor space, outdoor space and ventilation, and the natural environment.

The department will only consider applications that include evidence of safety measures to manage risk (if any) and to protect the health, safety and wellbeing of children.

Considerations for approving an outdoor space waiver

The regulatory authority will only consider granting a service waiver where genuine outdoor space cannot be achieved and where certain criteria is met.

Providers should consider the suitability of proposed sites and premises before buying or leasing, and at the planning, design and building stages to ensure compliance with physical requirements under the national regulations.

For example, if a premises' outdoor space is not sufficient for the proposed number of children, providers should adjust the number of children to comply with the law.

The regulatory authority does not guarantee an approved provider will receive a waiver and may take into consideration whether:

  • an equivalent area of indoor space (exclusive of indoor space requirements) is provided
  • the design of the allocated outside space provides the benefits of an outdoor learning environment, for example it:
    • has access to natural experiences that mimic the outdoors, such as water play, sand play, bark play, accessible plantings or other elements
    • is suitable and is a sufficient area for gross motor activities such as running and jumping for different age groups and has ample flexibility to continually challenge children’s needs and abilities
  • allows adequate ventilation and access to natural light
  • where appropriate, the service accesses outdoor space through regular excursions to community parks and facilities.

The regulatory authority may seek further information and may inspect the premises to assist in deciding to grant or refuse the waiver.

Council restrictions on using outdoor space

An approved provider may not need to seek a service waiver for local council development approval restrictions on using outdoor space at certain times (e.g. start and end of day) because of noise issues.

If children's best interests are unaffected (e.g. the maximum time they cannot use the outdoor space is 1 hour a day) the department will consider this restriction as part of the service approval application.

However approved providers will need to apply for a service waiver if the development approval restricts access to the outdoor area for more than 1 hour per day of the service's overall opening hours.

Read more about waivers for NQF services.

Services under the ECS Act

In special circumstances, including unexpected events, the regulatory authority (the department) may grant a waiver if an approved provider cannot meet certain operational or legislative requirements.

In considering a waiver the department will be guided by the objectives and guiding principles of the ECS Act.

The department may grant a waiver as a last resort so the service can operate.

Approved providers should explore all possible ways to meet the requirements before making a waiver application.

What aspects in the physical environment may be waived?

  • Regulation 7 (service waivers) and regulation 8 (temporary waivers) specify the operational requirements for which an approved provider can seek a waiver.
  • Approved providers must give strong evidence of their safety measures to eliminate risk of exposure to the hazard (e.g. less outdoor space) and to protect the health, safety and wellbeing of children for the application to be considered.

Considerations for approving an outdoor space waiver

The department may take into consideration:

  • what percentage of other space, specifically actual outdoor space, is available at the service
  • that the design of the allocated outside space provides the benefits of an outdoor learning environment, for example it:
    • provides access to natural experiences that mimic the outdoors, such as water play, sand play, bark play, accessible plantings or other elements;
    • is suitable and is a sufficient area for gross motor activities such as running and jumping for different age groups and has ample flexibility to continually challenge children's needs and abilities;
    • allows adequate ventilation and access to natural light;
    • where appropriate, the service accesses outdoor space through regular excursions to community parks and facilities; and
  • any steps taken by the approved provider to try and meet the relevant requirements during the planning process of the service.

This list is not exhaustive and the department considers each application on a case-by-case basis.

Related information

Read more about waivers for ECS Act services.

Log on to the ECEC Emergency Closure portal to notify the department and families of any service closures due to a natural disaster or other unexpected event.

Help and support

The department can fast track the processing of an application where the matter is outside the approved provider's control or in extenuating circumstances (e.g. natural disasters such as flooding).

Contact your regional office if you need your application fast-tracked or help to complete your waiver application.

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Last updated 03 October 2019