Section 82 of the Planning and Environment Act 1987.

Use and development of the land for a 60 place child care centre. The two storey building has basement parking for 14 vehicles. The centre is proposed to operate from 7.30am to 6.30pm Monday to Friday. The child care centre will be in the same ownership as the adjacent premises (Bambini) but may operate independently at some time into the future.

Residential 1 Zone. Design and Development Overlay [DDO2].

Clause 32.01 to use and develop the land for a child care centre.

Clauses 10, 11, 15, 17, 18, 21, 22.06, 22.07, 22.08, 52.06[1] and 65.

The site is located on the north-east side of Wilson Street near to the Male Street intersection. The land area is 604 square metres. A single storey dwelling occupies the land. The site abuts residential properties at Nos. 71 Wilson Street and 54 Male Street. To the south-east, at No. 75 Wilson Street, is 60 place child care centre (Bambini) on a T-shaped lot located in a former dwelling.

The Tribunal inspected the review site and properties at No. 71, 73 and 75 Wilson Street on 1 July 2011 at around 8.15am to 9am.

1. A permit application was lodged with the Bayside City Council to use and develop the land at No. 73 Wilson Street, Brighton, for a 60 place child care centre. The Council determined to support the proposal subject to conditions[3].
2. Mr Agarwal owns an adjacent property at No. 71 Wilson Street. He has requested this review of the Council's decision. His grounds, which are all challenged by the Council and Respondent, require me to determine the following questions:
   • Is the use of the land for a child care centre acceptable particularly with respect to the Residential 1 Zone and local policy at Clause 22.07?
   • Would the proposal represent an acceptable outcome in terms of neighbourhood character considerations?
   • Would there be unreasonable impacts on the amenity of abutting residential properties particularly in terms of noise and visual bulk?
   • Are proposed arrangements for car parking and access acceptable?
3. In deciding to vary the Council's decision, I have considered all submissions and evidence, assisted by my inspection. The reasons for my decision follow.

Why has the application by Mr Smith and others been struck out?

1. It is necessary to explain why I have struck out the Application for Review by Mr Smith and nine others.
2. Two Applications were made under Section 82 PEAct seeking review of the Council's decision. One was by Alan Smith and others and one was by Dinesh Agarwal. The day before the hearing, an application for adjournment was lodged by Mr Smith's nominated representative, Mr J Galanopoulos. The request was made on the basis that expert reports were served late by the permit applicant and thus not in accordance with the Tribunal's Practice Note. The Responsible Authority consented to the adjournment application. The request was opposed by the Respondent.
3. Given the late and contested nature of the adjournment request, the adjournment request was declined by another member of the Tribunal. All parties were advised that the hearing would proceed as scheduled.
4. I understand from a subsequent email to the Tribunal's Registry from Mr Galanopoulos that he was advised that the concerns referred to in the adjournment request could be raised as a preliminary matter at the hearing. If raised, I would have considered the request at the hearing.
5. I also understand from email documentation sent to the Registry by Mr Galanopoulos that he had no instructions to appear on 28 June 2011. He had requested instructions from his clients including documents as written submissions. Subsequently, Mr Galanopoulos forwarded two documents to the Registrar, one from Mr Smith and another from Mr G Hoy.
6. At the hearing on 28 June 2011 there was no appearance by Mr Galanopoulos, Mr Smith or any other person representing this Applicant. The hearing continued for the whole day without any appearance.
7. Written submissions do not suffice for non-attendance at a hearing by an Applicant for Review. If an Applicant does not appear then pursuant to Section 51(5) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal must confirm the Responsible Authority's decision. Sometimes the Tribunal may make a concurrent order for the Application for Review to be struck out (there being no person in attendance to prosecute the case).
8. In this case, Mr Agarwal was a co-signatory in Mr Smith's Application. He was represented by Mr Bardin but there was no suggestion that Mr Bardin also represented Mr Smith. As Mr Agarwal had lodged an individual Application for Review, his Application for review was still on foot. Consequently, Mr Agarwal's application provided the basis upon which the hearing proceeded. Submissions were presented on behalf of Mr Agarwal, the Council and permit applicant. I struck out Mr Smith's Application.

Is the use of the land for a child care centre acceptable particularly with respect to the Residential 1 Zone and local policy at Clause 22.07?

1. Mr Bardin submitted that the proposed use is in a local residential street that is unsuitable for a development in the form and at the scale proposed even though there is an adjacent child care centre and a primary school nearby. He submitted the proposal fails an assessment of the local policy dealing with discretionary uses in residential areas.
2. The purpose of the Residential 1 Zone includes "In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs". Child care centres are typically considered an acceptable non-residential use as they are usually serving a relatively local catchment. General planning principles, assisted by local policies, guide the consideration of whether a particular site is an appropriate location. Critical issues focus on the scale of a proposal and the site's context as these are central to the consideration the potential for a non-residential use to cause unreasonable amenity impacts such as with respect to visual bulk, noise, traffic and parking.
3. In this case, the local policy at Clause 22.07 provides a basis for assessing a proposal including with respect to the preferred location for non-residential uses. The aim is to provide needed services but minimise the impacts of non-residential uses in residential areas.
4. The policy, and my conclusions on the proposal's compliance with that part of the policy addressing preferred location, follows:

The discretionary use abuts a Road Zone or collector road. Other locations may only be favourably considered where it can be demonstrated that residential amenity will not be unreasonably compromised.

The site is not proposed on land abutting a Road Zone. There is a dispute between the parties as to whether Wilson Street is a collector road. There is no evidence to suggest it is formally designated as a collector but it is wide and carries a significant amount of non-local traffic given the range of non-residential uses in the immediate locality such as a primary school, child care centre, medical rehabilitation centre, church and drama school.

Site consolidation is encouraged to ensure adequate on-site parking, landscaping and setbacks are provided.

The discretionary use is located on the periphery of commercial areas or adjacent to other discretionary uses to provide a transition between commercial and residential areas.

The review site is not on the periphery of commercial area but does abut an existing child care centre.

The discretionary use is located near similar community and support facilities.

The site abuts a child care centre, is very close to a primary school and is readily proximate to other properties with children's based activities.

The discretionary use is located within walking distance of public transport and promotes safe and convenient pedestrian access.

There is some public transport available that is most likely to service staff. The site is well located for parents/carers walking to multiple children's-based facilities.

1. Thus, while the review site is well placed when tested against some of the criteria it does not meet all of the criteria for a preferred location. The strongest points in favour of the location are the related land uses that can provide some synergies and multi-purpose trips, and the nature of road usage already occurring in the area.
2. I do not consider the failure to comply with all of the criteria means that the proposal must fail at this point. I note the reference to "preferred" which suggests other options are possible when tested on the merits. Moreover, other matters are addressed in Clause 22.07 that must reasonably be considered when balancing all relevant considerations. These matters include built form, amenity impacts, traffic and parking.

Would the proposal represent an acceptable outcome in terms of neighbourhood character considerations?

1. Mr Bardin submitted the proposal is an overdevelopment of the site. He referred to the two storey scale plus basement as atypical for a child care centre with the potential to create much greater impacts on neighbouring properties than a single storey, single level, facility. Mr Bardin submitted the proposal fails to comply with the local policies relating to neighbourhood character particularly for Area B2 as a consequence of the loss of the existing dwelling on the site, use of the front setback as a play area thereby limiting landscaping opportunities, the dominant driveway ramp, boundary wall construction and lack of building articulation. He was critical of the failure of the design to meet Standard B9 as this would reduce the area available for landscaping.
2. Local policy[4] encourages non-residential uses to fit in with the neighbourhood character and specifically to respect the prevailing built form, scale and materials of surrounding buildings, established neighbourhood character and the preferred neighbourhood. Clause 22.07 also calls up the provisions of Clause 54 and 55 (Rescode).
3. The preferred character description for Area B2 in Clause 22.06 is:

The diverse dwelling styles, with a continued presence of pre WW2 dwellings, sit within established gardens with occasional tall canopy trees. Side setbacks on both sides, and the setting back of car ports/garages from the dwelling, allows for vegetation to flow around the dwellings. New buildings blend with the existing, through using a variety of materials or colours within front façades, and by respecting the older building styles and scales without replicating them. Open style front fencing improves the visual connection between the dwelling and the street. Street tree planting consistency is improved to provide a unifying element to the area.

1. The area of the review site displays features such as older housing stock within gardens, recessed garaging and side setbacks for buildings. There are, however, many high front fences. Front setbacks near to the site are around 7 metres with examples of deeper and shallower setbacks. In addition, there is some new development that adopts varied building styles and forms. Several contemporary detached dwellings have much a simpler and bolder presentation when compared with the older houses. They were probably were able to be constructed without a planning permit. These influence and represent an emerging form that is seen in many streets within the B2 character area as I observed on my walk around the area. There may be fewer examples immediately around the review site but change is inevitable when no planning permit is required for a new single dwelling on a lot of more than 500 square metres.
2. Overall, I find that the proposal, while different to older dwelling stock, respects the prevailing built form, scale and materials of surrounding buildings, established neighbourhood character and responds to the preferred neighbourhood character.
3. I reach this conclusion for the following reasons:
   • The proposal adopts a scale and massing that is different to many dwellings in its architecture but is acceptable in its two storey format and overall scale. The building is only 6.6 metres high with no roof top plant or equipment required. This is lower than some of the larger two storey dwellings nearby.
   • The building steps away from the dwelling at No. 71 Wilson Street and adopts a much stronger interface abutting the adjacent child care centre at No. 75 Wilson Street.
   • Ground level boundary development can be accommodated in this location given the adjacent child care centre and the intended functional interaction between the two child care centres. Condition 1(a) requires the upper level to be setback by 2 metres from the eastern boundary; an outcome with which I agree to provide spacing between building forms.
   • The front setback is typical of nearby lots even though it is less than the standards of Rescode[5]. The front setback gives scope for some planting including a canopy tree(s) albeit the play area cannot be as fully planted as some residential lots in the area. A high front fence is also not unusual in this locale.
   • Basement access is increasingly common and is seen at the nearby rehabilitation centre and dwellings in the wider area. It avoids visible at-grade parking (such as at No. 75 Wilson Street where parking is in the front setback) and avoids dominant parking areas as sought by Clause 22.07. It achieves one crossing for the lot and ensures that all cars can depart in a forward motion which has safety benefits.
   • The extent of first floor balcony, which is to serve as a play area, is not typical of the area but this is not an element that would be prominent in the streetscape. The leaf motif is a useful means of adding visual interest to the screening device.
   • The architectural response and materials are acceptable particularly when considering diverse elements found in this streetscape. The Council has sought some variations which are not opposed by the permit applicant, such as more windows in the southern elevation.
4. It was suggested in evidence that Condition 1(a) on the Notice of Decision could be deleted. As noted above, I consider this setback is required.

Would there be unreasonable impacts on the amenity of abutting residential properties particularly in terms of noise and visual bulk?

1. The review site abuts two residential properties, at No. 71 Wilson Street and No. 54 Male Street. The former shares a side boundary with the review site and is the most affected property. Concerns raised by Mr Bardin with respect to this interface focused on noise and visual bulk, mindful of the location of living area and a raised outdoor deck in the adjacent property.

1. It is true that the proposal adopts limited articulation along its side elevation but it is relevant that Standard A10 would be exceeded by positioning more of the building toward No. 75 Wilson Street that does not house a residential land use. No. 71 Wilson Street has a driveway which is partly covered and a rear garage that provide some intervening elements between the proposed building and the adjacent rear deck and open space. There is no doubt that the development would be seen but with some minor changes involving relocation of external storage within the ground level open space, a continuous landscape edge can be achieved along this north-western boundary of the review site. On balance, I consider the relationship to be acceptable in built form terms.
2. Mr Bardin referred to some unease about the presence of the large first floor balcony which will serve as a play area. I appreciate that concern but am satisfied that screening will limit views and noise and that the proposed hours of operation (daytime and weekday only) will limit use of the balcony. I conclude that the presence of the balcony is acceptable.

1. As already indicated, an important planning outcome is to ensure that nearby residential properties are not subjected to unreasonable levels of noise and that the proposed hours of operation do not have an adverse impact on the residential area. Clause 22.07 adopts, as a guideline, maximum hours of 7am to 7.30pm. The proposal relies on 6.30am to 7.30pm which is longer than referred to and longer than the abutting child care centre.
2. As referred to by all parties, the Tribunal has frequently said noise associated with children playing in a child care centre would not usually be a ground for refusing a permit application. In the site's context, and given the size of the proposed centre, I agree. Noise from ground level play areas would be attenuated by an acoustic fence. That fence would be positioned along the boundaries and needs to also ensure that noise transmission from the front play area is attenuated. Mr Mark's evidence addresses the necessary requirements in terms of the fence's height and construction to achieve an acceptable outcome. I accept that evidence.
3. In addition, Mr Mark's recommendations also address the treatment of the first floor balcony. I also accept this evidence.
4. I have decided to also add a general amenity condition to provide protection with respect to noise associated with other aspects of the use.

Are proposed arrangements for car parking and access acceptable?

1. One of the key concerns raised in objections to the Council, and addressed by Mr Bardin, is the increase in traffic and on-street parking that will occur with the introduction of another non-residential use into an already busy area.

1. The layout provides for 14 spaces within the basement that accords with the local policy at Clause 22.07. The proposal adopts a tandem layout that is workable given the proposed allocation of rear spaces for staff parking. I find this on-site provision to be acceptable.
2. Some parents/carers will not use the basement if there is a convenient car space on-street but the basement provides a good option if on-street parking supply is pressured or limited. The proposal meets its obligations in a building format that is now being utilised for child care centres in other areas of Melbourne where on-street parking is problematic.

1. The proposal will add to traffic compared with the existing residential use of the land. That is within a context of existing non-residential vehicle activity because of other uses as well as the connectivity of Wilson Street in the road network. The peaks associated with the child care centre will add to the impacts to which existing residents are already exposed. However, the volumes associated with the proposal are, on Council's assessment and the expert evidence, able to be accommodated without unreasonable safety or related issues.

1. I have recorded above the Council's comment that several conditions were omitted from the Notice of Decision. There was also an error identified in Condition 1(k) where "north" should have referred to "south".
2. I have noticed since the hearing that there is no condition referring to a limit on the number of child care places. This is a routine requirement for a permit such as this and consequently I will add this condition.
3. Changes to the layout of the basement and ramp were referred to the Council's Notice of Decision. These are shown in Mr Symons evidence. He also recommended a sight triangle be added. I adopt these changes.
4. I have recorded the possibility that the proposed child care centre may operate independently of Bambinis into the future. To accommodate this, Mr Crowder's evidence included a plan showing a separate entry from Wilson Street. I consider this change is appropriate mindful that the permit application only relates to the land at No. 73 Wilson Street and does not include No. 75 Wilson Street.

1. For the above reasons, I find the proposal is an acceptable response to the key considerations with respect to a child care centre in this location:
   • The built form would sufficiently respect the established neighbourhood character and respond to the preferred neighbourhood character.
   • Subject to works being undertaken to protect against unreasonable noise intrusion, the proposal would not unreasonably affect residential amenity.
   • Adequate access is available to the site.
   • Adequate provision is made for on-site parking.
   • Traffic generated by the use can be accommodated in the street and the locality and, given the existing traffic and parking patterns, will not adversely affect existing traffic patterns and safety.
   • The use will cater for local needs.
2. I will vary the decision made by the Responsible Authority. I will grant a permit for the proposal subject to varied conditions to accord with my findings.

Use and development of the land for a child care centre in accordance with the endorsed plans.

1. Before the development commences, three copies of amended plans to the satisfaction of the Responsible Authority must be submitted to the Responsible Authority for its approval and when approved the plans shall be endorsed and then form part of the permit. They must be drawn to scale and modified to show:
   • (a) The first floor setback along the eastern boundary (stair and store room) increased to 2.0 metres.
   • (b) An entry into the premises direct from Wilson Street as shown in the plan included in Appendix A of the Statement of Evidence of Mr D Crowder (June 2011) to the Victorian Civil and Administrative Tribunal in Application for Review P391/2011.
   • (c) Changes to the basement access and car park layout in accordance with the plan included in Appendix B of the Statement of Evidence of Mr R Symons (June 2011) to the Victorian Civil and Administrative Tribunal in Application for Review P391/2011.
   • (d) The addition of a sight triangle on the east side of the basement entry measuring 2.5 metres (depth) by 2 metres (street frontage) comprising a translucent glazed fence insert.
   • (e) A convex mirror positioned near the foot of the ramp to the basement car park.
   • (f) Details of any security door to the basement.
   • (g) Changes arising from the Waste Management Plan referred to in Condition 10.
   • (h) Details of plant and equipment none of which is to be on the roof.
   • (i) Details of any venting for the basement and air conditioning for the premises that must be located to minimise any adverse impacts on abutting residential properties.
   • (j) The Wilson Street elevation to be modified to show more 'domestic' and less 'commercial architectural' detailing in response to the details evident in the streetscape. The redesign must include additional south facing windows.
   • (k) A landscape plan showing the planting for all open space areas including at least two canopy trees planted within the front setback to Wilson Street, and at least two canopy trees planted within the rear setback in accordance with the requirements of Condition 5.
   • (l) A continuous landscape edge along the north-west boundary adjacent to No. 71 Wilson Street by relocating the two external storage areas shown on the boundary and replacing them with additional canopy trees.
   • (m) Water Sensitive Urban Design storm water treatment measures in accordance with Condition 11.
   • (n) Works in accordance with the recommendations of a suitably qualified and experience acoustic engineer in accordance with the requirements of Condition 12.
2. The use and development permitted must always accord with the endorsed plans and must not be altered or modified without the further written consent of the Responsible Authority.
3. The use must only operate between 7.30am and 6.30pm Monday to Friday.
4. The number of child care places must not exceed 60 unless with the written consent of the Responsible Authority.
5. All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
6. The walls on the boundary of the adjoining properties shall be cleaned and finished to the satisfaction of the Responsible Authority.
7. Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must show:
   • (a) A survey (including botanical names) of all existing vegetation in excess of two metres in height to be retained and or removed.
   • (b) Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.
   • (c) Details of surface finishes of pathways and driveways. Details should show porosity of surface finish and any footings or sub surfaces.
   • (d) A planting schedule of all proposed trees including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
   • (e) All species selected must not be environmental or noxious weeds.
   • (f) The landscape plan must also indicate that an in ground irrigation system is to be provided to all landscaped areas.
8. Before the occupation of the development starts or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
9. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.
10. Prior to the endorsement of plans under Condition 1, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Plan will be endorsed and then form part of the permit. Three copies of the Plan must be submitted. The Plan must include, but is not limited to, provision on the land for the storage and collection of garbage and other solid waste. The area must be graded and drained and screened from view to the satisfaction of the Responsible Authority. All waste material must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created. The Waste Management Plan must be implemented to the satisfaction of the Responsible Authority. The Waste Management Plan must not be modified unless with the prior written consent of the Responsible Authority.
11. In accordance with the requirements of Clause 22.10 of the Bayside Planning Scheme:
    • (a) Before the development starts, detailed plans to the satisfaction of the Responsible Authority must be submitted to and be approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must show:
      • (i) The type of water sensitive urban design stormwater treatment measures to be used;
      • (ii) The location of the water sensitive urban design stormwater treatment measures in relation to buildings, sealed surfaces and landscaping areas;
      • (iii) Design details of the water sensitive urban design stormwater treatment measures, including cross sections;

These plans must be accompanied by a report from an industry accepted performance measurement tool, which details the treatment performance achieved and demonstrates the level of compliance with the Urban Stormwater Best Practice Environmental Management Guidelines 1999.

(b) The water sensitive urban design stormwater treatment system as shown on the endorsed plan must be retained and maintained at all times in accordance with the Urban Stormwater - Best Practice Environmental Management Guidelines 1999, to the satisfaction of the Responsible Authority.

1. Before the development starts, an acoustic report to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the report will be endorsed and will then form part of the permit. The report must be generally in accordance with the recommendations contained in the Statement of Evidence of Mr T Marks, Marshall Day Acoustics ( dated 22 June 2011) to the Victorian Civil and Administrative Tribunal in Application for Review P391/2011 detailing the type, size and location of acoustic fencing including to noise from the front play area and basement access ramp to the satisfaction of the Responsible Authority. The fencing must be positioned along the common boundary with No. 71 Wilson Street. The report must also address the acoustic qualities of first floor balcony, floor surfaces and window/door glazing.
2. Following the completion of all approved buildings and works and prior to the use commencing, a final Commissioning Report must be prepared by a suitably qualified acoustician and submitted to the satisfaction of the Responsible Authority that demonstrates that the premises meets the accords with the recommendations and requirements of the acoustic report referred to in Condition 9.
3. Before the development begins, three sets of detailed plans indicating the method of stormwater discharge to the nominated Legal Point of Discharge (and Stormwater Detention Systems where applicable) must be lodged with Council's Engineering Services department for approval.
4. The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:
   • (a) transport of materials, goods or commodities to or from the land appearance of any building, works or materials;
   • (b) appearance of any building, works or materials;
   • (c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
   • (d) presence of vermin;

1. This permit will expire if one of the following circumstances applies:
   • (a) the use and development is not started within two years of the date of this permit.
   • (b) the use and development is not completed within four years of the date of this permit.

The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date .

[1] Car parking provision must be to the satisfaction of the Responsible Authority.

[2] In reaching my decision, I have considered all submissions and evidence presented but do not recite all of that material here.

[3] At the hearing, Ms Bowdern said that several conditions had been omitted from the Notice of Decision to Grant a Permit with respect to hours of operation and a requirement for a waste management plan.