The decision of the Responsible Authority is set aside. In permit application M/V 18153/2006 a permit is granted and directed to be issued for the land at 767-773 Mt Alexander Road, Moonee Ponds. The permit allows use and development of the land for an Indoor Recreation Centre (Children's Play Centre), Child Care Centre and 12 Dwellings in a four storey building with basement car parking (including a reduction in the required car parking and access to a road in a Road Zone) in accordance with the endorsed plans and subject to the following conditions:

1. Before the use and development starts, amended plans (three copies) must be submitted to and approved to the satisfaction of the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans identified as Job NO: 0648 drawing numbers DR01 Revision B; D01 Revision A; TP01 Revision B; TP02 Revision B; TP03 Revision B; TP04 Revision B; TP05 Revision B; TP06 Revision B; TP07 Revision B; TP08 Revision B; TP09 Revision B; TP10 Revision B; but modified to show:
   • (a) Extent of demolition of the existing building;
   • (b) The "non scalable screen" associated with the "children's out door area" on the south western façade of the building as an acoustic screen with a height of 2.1 metres and a minimum mass of 12 kilograms per square metre;
   • (c) The incorporation of acoustic protection measures to all dwellings within the building including acoustic attenuation of all building services and plant equipment in accordance with Condition 9;
   • (d) The location of all external plant and equipment including, but not limited to service units for heating cooling and hot water, solar panels, commercial kitchen exhausts, services shafts, waste chute, lift overrun, interceptor traps, television antennae and communication devices, service meters, clotheslines, car park mechanical exhaust and ventilation;
   • (e) A full schedule and A4 size colour board of exterior colours, materials finishes;
   • (f) The elevation plans specifying natural ground level, finished ground level, finished floor level and total building heights measured relative to a level taken from a defined point on the footpath at the frontage of the site or in relation to Australian Height Datum (AHD);
   • (g) The reinstatement of redundant crossovers and their replacement with footpaths, nature strips, kerb and channelling;
   • (h) Any modifications required by VicRoads;
   • (i) A landscape plan in accordance with Condition 35;
   • (j) A satisfactory head clearance for all protective entry sunshade canopies overhanging the public footpath;
   • (k) Bicycle parking facilities provided in accordance with the rates specified in Clause 52.34 of the Moonee Valley Planning Scheme with a minimum of 8 of the bicycle spaces provided within the Mount Alexander Road front setback.
   • (l) The provision of storage areas allocated to each dwelling;
   • (m) All vehicle accessway gradients in accordance with the relevant Australian Standard(s) shown in cross section;
   • (n) An annotation on the plans to show where and how the lift overruns and mechanical plant areas have been incorporated into the design of the development;
   • (o) The location of the cooking exhaust system(s);
   • (p) The allocation of car spaces to each dwelling identified by marking or providing signage to the car space(s) with an identifying number or address for each dwelling;

When approved, these plans become the plans endorsed with the permit.

1. The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
2. The sale of food and drink on the premises must only be for the users of the Indoor Recreation Centre (Childrens Play Centre).
3. There must be no food and drink sold for consumption off the subject site.
4. The cooking exhaust system(s) of the Indoor Recreation Facility (Childrens Play Area) and Childcare Centre must be provided with a filter system and appropriately sited to eliminate cooking odours, fumes and smoke to the satisfaction of the Responsible Authority.
5. Before the use starts a Waste/Recycling Management Plan must be submitted to and approved by the Responsible Authority. In the preparation of the Waste/Recycling Management Plan, specific provision must be made for the following items:
   • (a) How the collection of refuse and recycling material will be managed including the location for collection and whether collection is by private or public operators;
   • (b) What will be the frequency for the removal of such refuse and recycling materials;
   • (c) Whether waste/recycling management will include compaction of refuse and/or breaking of bottles and how the subsequent noise impacts from these activities will be mitigated.
   • (d) How it is intended to control the emission of odour caused by such refuse and recycling material when it is being stored within the subject site;
   • (e) Where the bins will be stored including details of screening and ventilation;
   • (f) That the bin storage areas are sufficient to cater for the amount of waste that will be produced;
   • (g) The type of bins which will be used on the subject site;
   • (h) Hours of bin collection not being outside the hours of:
     • (i) 7.00am - 8:00pm Monday to Saturday
     • (ii) 9:00am - 8:00pm Sunday & Public Holidays;
   • (i) Access routes for private waste collection vehicles that do not rely on reversing movements, if private waste collection is utilised.

Once this plan is approved it becomes part of the permit and must be implemented and continue to be implemented.

1. Prior to the commencement of the development a Construction Management Plan must be submitted and approved by the Responsible Authority detailing the construction activity proposed. The plan must include, but not be limited to:
   • (a) Hours and days of construction;
   • (b) Dust management;
   • (c) Parking and traffic movement of all workers' vehicles and construction vehicles;
   • (d) Works timetable;
   • (e) Any impacts upon adjacent roads and pedestrian walkways and providing for adequate movement and circulation of vehicles and pedestrians adjacent to the subject site during the construction phase;
   • (f) Access routes for construction vehicles;
   • (g) Location of any washbays;
   • (h) Temporary fencing works;
   • (i) Number of workers expected to work on the subject site at any time;
   • (j) Methods for limiting escape of dust and litter from the subject site.
   • (k) The commencement date of activities must be provided not less than 28 days prior to the commencement of each of demolition and construction.

The Construction Management Plan must be to the satisfaction of the Responsible Authority.

Once submitted and approved, the plan must be implemented to the satisfaction of the Responsible Authority.

1. Before the development starts a qualified acoustics expert must prepare an acoustic report and a copy must be provided to the Responsible Authority, that details the noise attenuation measures required to all habitable rooms within the dwellings to ensure minimal impacts from noise sources external to those dwellings. The recommendations of the acoustic report must be implemented to the satisfaction of the Responsible Authority prior to the completion of the development.
2. Environmental Audit
   • (a) Before the development starts (other than demolition) and prior to any certification or issue of a Statement of Compliance under the Subdivision Act 1988, either:
     • (i) A Certificate of Environmental Audit for the subject site must be issued in accordance with Section 53Y of the Environment Protection Act 1970; or
     • (ii) An Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must make a Statement in accordance with Section 53Z of the Act that the environmental conditions of the subject site are suitable for the use and development that are the subject of this permit.
   • (b) Where a Statement of Environmental Audit is issued for the subject site, the use and development, buildings and works that are subject of this permit must strictly comply with all directions, conditions, requirements and recommendations contained within the Statement.
   • (c) Where a Statement of Environmental Audit is issued for the subject site, prior to the commencement of the use, the certification or issue of a Statement of Compliance under the Subdivision Act 1988, or the issue of an Occupancy Permit under the Building Act 1993, a letter prepared by an Environmental Auditor appointed under Section 53S of the Environment Protection Act 1970 must be submitted to the Responsible Authority to verify that the directions, conditions requirements and recommendations contained within the Statement have been satisfied.
   • (d) Where a Statement of Environmental Audit is issued for the subject site a Section 173 Agreement pursuant to the Planning and Environment Act 1987 must be entered into between the land owner and the Responsible Authority if required by the Responsible Authority depending on the directions and conditions contained in the Statement. Where a Section 173 Agreement is required, the Agreement must be executed and registered on the title to the land prior to the earliest of the completion of the development, the commencement of the permitted use, or the certification or issue of a Statement of Compliance under the Subdivision Act 1988. The Section 173 Agreement must be to the satisfaction of the Responsible Authority and provide for the owner of the site to carry out the directions, conditions, requirements and recommendations contained in the Statement of Environmental Audit. All expenses involved in the drafting, execution and registration of the Agreement, including those incurred by the Responsible Authority, must met by the owner of the subject site.
   • (e) Prior to commencement of the development a copy of the Certificate or Statement of Environmental Audit, including the complete Environmental Audit Report must be submitted to the Responsible Authority in accordance with Section 53ZB of the Environment Protection Act 1970.
   • (f) A copy of the Certificate or Statement of Environmental Audit issued for the subject site must be provided to all prospective landowners and occupiers prior to the signing of a contract of sale, instrument of transfer, or a lease or a licence. Where a Statement of Environmental Audit is issued, the copy provided to each party must include a covering letter, which alerts the landowner and the occupier to the directions, conditions, requirements and recommendations contained within the Statement.
3. Lighting must be located, directed and shielded and of limited intensity that no nuisance or loss of amenity is caused to any person within or beyond the subject site.
4. Before the development starts, a Car Parking Management Plan prepared by an appropriately qualified traffic consultant must be submitted to and approved by the Responsible Authority. The Car Parking Management Plan must include:
   • (a) The provision of 67 car spaces with these spaces allocated as follows:
     • (i) 14 Resident car spaces
     • (ii) 4 Indoor Children's Play Centre Staff car spaces
     • (iii) 14 Child Care Staff/visitors car spaces
     • (iv) 35 Visitor car spaces
   • (b) Security arrangements for occupants of the development and their visitors, including the provision of an intercom system;.
   • (c) The management of loading and unloading of goods and materials for the non-residential uses on the subject site, to be carried out within a designated loading bay on the site and not to disrupt the circulation and parking of a vehicle on the subject site or on an adjoining roadway.;
   • (d) Lighting of parking areas, entries and exits;
   • (e) Proposed signage to direct occupants and visitors to their designated parking spaces;
   • (f) Unless the Responsible Authority has consented in writing, no parking fees being required for car parking.

Once this plan is approved it becomes part of the permit and must be implemented and continue to be implemented.

1. There must be not more than 110 children accommodated in the permitted child care centre.
2. The Childcare Centre must not operate outside of the hours of 7 a.m. to 7 p.m. Monday to Friday unless otherwise consented to by the Responsible Authority in writing.
3. There must not be more than 72 seats made available to the users of the Indoor Recreation Centre (Childrens Play Centre) for the supervision of children in the Childrens Play Area(s).
4. There must not be more than 6 staff present on the premises at any one time in association with the Indoor Recreation Centre (Childrens Play Centre).
5. Except with the further consent of the responsible authority the Indoor Recreation Centre (Children's Play Centre) must operate only between the following hours:
   • (a) 9 a.m. to 7p.m. Monday to Thursday;
   • (b) 9 a.m. to 9 p.m. Friday and Saturday;
   • (c) 10a.m. to 6 p.m. Sunday.
6. There must not be more than 100 children present in the Indoor Recreation Centre (Children's Play Centre) at any one time.
7. Standard concrete vehicular crossing/s must be constructed to suit the proposed driveway/s in accordance with the responsible Authority's standard specification and any vehicle crossing/s no longer required must be removed and the land, footpath and kerb and channel replaced all to the satisfaction of the Responsible Authority.
8. The permitted land and building must be drained to the satisfaction of the Responsible Authority.
9. All piping and ducting above the ground floor storey of the building must be concealed.
10. Prior to completion of the development all boundary walls in the development must be constructed, cleaned and finished to the satisfaction of the Responsible Authority.
11. Plan and equipment, including air conditioning units, must not be located on any of the balconies or terrace areas unless appropriately visually and acoustically screened to the satisfaction of the Responsible Authority.
12. Any service pits located within the proposed crossovers must be relocated to at least 1.0 metre from the crossovers at the owner's expense and to the satisfaction of the Responsible Authority.
13. The amenity of the area must not be detrimentally affected by the use or development, through:
    • (a) Transportation of materials, goods or commodities to or from the land.
    • (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 produces, grit or oil.
    • (d) Presence of vermin.
    • (e) In any other way.
14. The materials, colours, decoration and/or finishes to be applied to the exterior of the building or works as described on the drawings or schedules endorsed to accompany this permit must not be altered without the consent of the Responsible Authority.
15. The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plans must:
    • (a) Be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the use hereby permitted;
    • (b) Thereafter be maintained to the satisfaction of the Responsible Authority;
    • (c) Be made available for such use at all times and not used for any other purpose;
    • (d) Be properly formed to such levels that it can be used in accordance with the endorsed plans;
    • (e) Have the boundaries of all vehicle spaces clearly indicated on the ground in conformity with the endorsed plans.

1. All vehicular movements to and from the site shall be made in a forward direction and will be limited to left in and left out.
2. The vehicle crossover onto Mount Alexander Road shall be designed and constructed to the satisfaction of VicRoads and the responsible authority.
3. A traffic management plan is to be submitted and consented to by VicRoads prior to the commencement of any works in the road reserve.
4. Work site traffic management practices must be in accordance with the Australian Standard A.S 1742.3-2002 "Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads."

1. Prior to the commencement of the use the owner must relocate the power pole located at the proposed crossover on Mt Alexander Road at the owner's expense and to the satisfaction of the Responsible Authority.
2. The garden areas shown on the endorsed plans and planting schedule must only be used as gardens and shall be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed it must be replaced by a tree or shrub of similar size and variety. The Council's Planning Office must be advised of the completion of the landscaping so that a site inspection can be carried out.
3. No buildings or works (other than demolition) must be commenced until a landscape plan prepared by a suitably qualified and experienced person or firm has been submitted to and approved by the Responsible Authority. Landscaping in accordance with this endorsed plan and planting schedule must be completed before the building is occupied.
4. This permit will expire if:
   • (a) The development does not start within two (2) years of the date of this permit; or
   • (b) The development is not completed and the use does not start within four (4) years of the date of this permit.

Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date.

1. This is an application to review the failure of the responsible authority to grant a permit within the prescribed time in respect of a permit application for an Indoor Recreation Centre (Children's Play Centre), Child Care Centre and 12 Dwellings in a four storey building with basement car parking[1] at 767-773 Mt Alexander Road, Moonee Ponds. The responsible authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:
   1. The scale and intensity of commercial activity on the land as proposed is inappropriate as it is not within an area designated as preferred location for mixed use development under the Moonee Valley Planning Scheme and will result in an incremental creep of commercial uses along this strip of Mt Alexander Road located between two distinct activity centres conflicting with the strongly expressed State Planning Objective at Clause 17.01 of the Moonoee Valley Planning Scheme to concentrate commercial development into activity centres.
   2. The development's scale and intensity of use is excessive for an out of centre development.
   3. The proposal undermines the objectives of Clause 22.01-2 Moonee Ponds Activity Centre Policy which states that entertainment facilities including cinema, restaurant and family entertainment should be located adjacent to and physically integrated with the retail precinct.
   4. The proposal fails to satisfy the strategic vision for discretionary uses in residential zones contained at clause 22.02 and the residential Design Policy at Clause 22.06 of the Moonee Valley Planning Scheme and does not ensure that this section of Mt Alexander Road continues to fulfil its primary residential function and retain its residential character
   5. The development has not been appropriately conceived. It has little regard for on-site amenity considerations such as noise attenuation from the internal car park and from adjoining Mt Alexander Road, location of plant and equipment including air conditioning systems, heating systems, hot water systems, commercial kitchen exhausts, services shafts, car park mechanical exhaust and ventilation, services meter, grease interceptor traps and the like, no apparent separate and secure lift lobby for the apartments; poor corridor circulation pattern providing longer lengths of travel than necessary.
   6. The applicant has not provided an environmental audit to suggest that the site is suitable or can be made suitable for use and development of sensitive uses such as a child care centre and residential.
2. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.
3. The current proposal is a revision of an earlier proposal considered by Member Hewet in an application[2] decided in August 2006. In that decision, Mr Hewet considered the proposal satisfactory from a built form, car parking and amenity perspective. He concluded that the intensity of the proposed mix of uses was unsatisfactory from a zone and planning policy perspective.
4. The table below is a comparison of the land use mix of the current and former proposals.

1. At the conclusion of the hearing the Tribunal gave oral reasons for its decision to set aside the decision of the responsible authority and direct the grant of a permit. A summary of the Tribunal's reasons are set out below.
2. In this application there are essentially two issues, both identified by Mr Hewet in his earlier decision they are:
   1. Built form, and;
   2. The scale and intensity of the mixed use development.

1. Council took the position that the built form issue had been resolved by Mr Hewet in his decision. The current proposal in built form terms is very similar to that considered by Mr Hewet. Mr Hewet decided that the design and development overlay defined the way in which the planning policy framework, as it relates to built form, should be considered. Mr Hewet decided that when assessed on this basis, the proposed building satisfactorily responds to the planning policy framework.
2. Respondent objectors continued to oppose the proposed building on the basis of its scale and built form. We accept Mr Hewet's assessment. We adopt it and note that the positive assessment of council's consultant urban designer supports this conclusion.

1. We consider that there are three elements to the issue of the scale and intensity of the proposed mix of uses, they are:
   1. Out of centre development;
   2. The character of the mix of uses proposed;
   3. The direct amenity effects.
2. In the amended proposal, the uses other than dwellings are reduced to the child care centre and the child play centre. The child care centre is in our view a use that is often associated with, and located within, residential areas. Therefore, it is only the child play centre which would raise any "out of centre" development issues. A child play centre is not a land use which one ordinarily associates with a successful activity centre. Child play centres require relatively large floor areas, and it is likely that the cost of such floor space within a successful activity centre would be prohibitive. Indeed, the information provided to the Tribunal suggests that many of the centres are in fact located within industrial zones, presumably for this reason.
3. We do not particularly agree that there is a strong synergy between the child care centre and the child play centre as suggested by Mr Gobbo. Nevertheless we do think that there is a synergy between the child play centre and the neighbouring residential area[4]. Conversely, we do not think that there is any particular synergy between a child play centre, and the land uses normally found within a successful activity centre.
4. It is our conclusion that the inclusion of a child play centre, in the mix of uses on this site, does not raise any particular "out of centre" planning related issues.
5. The applicants in our opinion have substantially changed the character of the mix of uses proposed by deleting the shop, by deleting the licensed café[5] and by reducing the hours of operation. There remains a mix of uses on the land that all have a specific relationship with the zone or more particularly the residential area i.e:
   1. The apartments are dwellings which add to the diversity of housing in the area;
   2. The child care centre and the child play centre are community uses (albeit commercial in character) providing services to families in the residential area.
6. In relation to the direct amenity effects we make the following observations:
   1. We are satisfied on the basis of Ms Dunstan's evidence that the use will have no unreasonable offsite impacts associated with traffic or car parking;
   2. The noise of children in the child care centre is a noise type which might reasonably be expected within a residential area. In this case the noise occurs in an environment with relatively high background noise levels.

The suggestion that the proposed coloured glass screens adjacent to the right of way be adjusted in height and weight so that they act as an acoustic barrier is in our view a good suggestion[6].

If the planning scheme provisions can be interpreted to require a loading bay for the proposed uses, then we think it is a requirement which in the context of this application could be waived. Nonetheless, a loading bay is in fact proposed although its dimensions are somewhat less than that prescribed by the planning scheme. It is our view that the proposed facility is an adequate response to the likely loading and unloading needs of the child care centre and child play centre.

1. It is our overall conclusion that the proposed mix use and development is responsive to the site and the planning policy context.

[1] Including a reduction in the required car parking and access to a road in a Road Zone.

[2] Application for Review P312/2006 Nikolaou v Moonee Valley CC