The decision of the Responsible Authority is set aside. A permit is granted and directed to be issued for the land at 50 Cooper Street, Essendon.

Use and development for the construction of a two storey childcare centre and basement car park in accordance with the endorsed plans.

1. Before the use and development starts, or any trees or vegetation removed, 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 submitted with the application but modified to show:

(a) All boundary fences surrounding the ground floor play area at the rear of the building to have a minimum height of 1.8 metres and to be acoustically treated.

(b) The upper floor outdoor play area acoustic screen fence to have a minimum height of 1.5 metres and be constructed as follows:

* Screens must consist of a solid membrane having a minimum surface weight of 10kg/m2. Suitable materials would include fibre cement sheet, villaboard or plywood. The screen must be faced with sound absorptive material which is exposed to the play area.

* A suitable absorptive material would be 50mm fibreglass or polyester (minimum density 48kg/m3) faced with open weave fabric or perforated plaster, timber, metal or steel mesh. The perforated facing material must have a minimum open area of 22%.

(d) All north facing windows to be acoustically treated.

(e) The north facing upper floor windows of Room 4 and the south facing windows of Room 3 to be fixed and screened to a height of 1.7 metres above floor level.

(f) The location of all air conditioning/heating units to be clearly shown.

(g) A directional sign not exceeding 0.3m2 in area that is visible and prominent from Cooper Street directing people to the basement car park.

(h) A notation on plan indicating the trees planted that will be non-scalable.

(i) The installation of rubber matting, vinyl or similar covering over the floors of play areas attached to the building.

Once approved these plans become the endorsed plans of this permit.

2. The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

3. The site shall be so ordered and maintained so it will not prejudicially affect the amenity of the locality by reason of appearance.

4. All external lights must be of a limited intensity to ensure no nuisance is caused to adjoining or nearby residents and must be provided with approved baffles, so that no direct light or glare is emitted outside the site.

5. Floor levels shown on the endorsed plan(s) must not be altered or modified without written consent of the Responsible Authority.

6. The loading and unloading of goods from vehicles shall only be carried out within the boundaries of the site and shall not be conducted before 7.00am or after 7.00pm on any day.

7. The management shall use every endeavour to ensure that the collection of refuse shall not cause any disturbance to nearby residential properties. In this respect, the management shall restrict the hours of collection to the following times:

and shall endeavour to ensure that the compaction of this refuse and the breaking up of bottles does not occur whilst the vehicle is stationary at the site.

8. The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan shall:

(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 plan;

(e) be drained and sealed with an all weather seal coat to the satisfaction of the Responsible Authority;

(f) have the boundaries of all vehicle spaces clearly indicated on the ground in conformity with the endorsed plan.

9. 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.

10. The use may operate only between the hours of:

unless the Responsible Authority consents in writing.

11. Goods must not be stored or left exposed outside the building so as to be visible from any public road or thoroughfare.

12. No equipment, services and agricultural features other than those shown on the endorsed plan shall be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.

13. Not more than thirteen (13) staff being twelve (12) carers and one (1) cook shall be present on the premises at any one time. The limitation in this condition does not apply to a work experience student or a university external placement of a student.

14. Not more than ninety (90) children may be present on the site at any one time.

15. Provision shall be made for the storage and disposal of garbage to the satisfaction of the Responsible Authority. All garbage storage areas must be screened from public view.

16. All wastes must be disposed of to the satisfaction of the Responsible Authority and no liquid waste or polluted waters shall be discharged into the storm water drainage system.

17. Noise emitted from the premises must not exceed the applicable permissible noise levels determined in accordance with the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trace) No. N-1.

18. The amenity of the area must not be detrimentally affected by the use of 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;

19. No building or works shall be commenced (and no trees or vegetation shall be removed) until a landscape plan prepared by a suitably qualified and experienced person or firm has been submitted to and endorsed by the Responsible Authority. This plan when endorsed shall form part of this permit. This plan shall show:

* A survey of all existing vegetation, abutting street trees, natural features and vegetation.

* Buildings, outbuildings and trees in neighbouring allotments that would affect the landscape design.

* Planting within and around the perimeter of the site comprising trees and shrubs capable of:

Ø providing some upper canopy for landscape perspective

Ø minimising the potential of any overlooking between habitable rooms of adjacent dwellings.

* The proposed design features such as paths, paving, lawn and mulch.

* A planting schedule of all proposed vegetation (trees, shrubs and ground covers) which includes, botanical names, common names, pot size, mature size and total quantities of each plant.

* The planting of trees along the northern and southern boundaries, capable of a spreading canopy and 2.0 metres high at the time of planting.

* The planting of trees with a spreading canopy within the front setback of the building.

Landscaping in accordance with this approved plan and schedule shall be completed before the building is occupied.

Once approved these plans become the endorsed plans of this permit.

20. The garden areas shown on the endorsed plan and schedule shall 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 may be required to be replaced by a tree or shrub of similar size and variety.

The Council's Planning Office must advised of the completion of the landscaping so that a site inspection can be carried out. A further inspection will be carried out 6 months after the completion of the landscaping to ensure that species have been adequately maintained.

21. A 1.8 metre high acoustic screen fence must be erected around the boundaries of the land (with the exception of the frontage) all at the cost of the applicant/developer and thereafter maintained all to the satisfaction of the Responsible Authority.

The fence must be in accordance with a design and specifications prepared by a suitably qualified person to be submitted to and approved by the Responsible Authority, prior to the construction of the fence.

The fence must be erected prior to the occupation of the building for the use hereon permitted.

22. This permit will expire if one of the following circumstances applies:

(a) The development is not commenced within two (2) years from the date of issue of this permit.

b) The use is not commenced within three (3) years from the date of this permit.

c) The development is not completed within four (4) years from the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

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For the Applicant for Review: Mr Gary Testro, Lawyer. Mr Testro called Mr Lorenzo Rigoni, Town Planning Consultant, Mr Don Robertson, Traffic Engineer and Ms Elizabeth Hui, Acoustic Consultant to give evidence.

For the Responsible Authority: Ms Lorraine Stupak, Town Planning Consultant, on behalf of Moonee Valley City Council.

For the Respondent Objectors: Ms Fay English, Mr John Laino, Mr Soo Lan Seng, Mr Greg Avdoulos and Mr William Annand appeared in person and presented written and oral submissions.

1. This was an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the City of Moonee Valley to refuse to grant a permit (in Application No. MV/15377/2002) for the land at 50 Cooper Street, Essendon to be used/developed for the purpose of a two storey child care centre and basement car park.

2. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (`VCAT Act'), Mr Testro requested the Tribunal to amend the application for permit by substituting the names of the owners, Simon and Nicole Attard for the name of the designer, Roy Hodgson Design and Drafting, which had been used on the original application. There was no objection to the substitution of the names and the Tribunal agreed to make the amendment in the manner requested.

3. The subject site is located on the eastern side of Cooper Street, four properties to the south of Mary Street, Essendon. The site is regular in shape and has a frontage of 20m, a depth of 50 metres and an area of 1,011m2. The site is currently occupied by a single storey weatherboard Californian bungalow with a hipped tiled roof.

4. The Tribunal finds the following description of the site and locality, taken from Ms Stupak's written submission, to be an appropriate one:

The site is relatively flat with only a slight fall of approximately 0.5 metres from the Cooper Street frontage to the rear of the property.

Access to the site is gained via a 3 metre wide driveway and crossover located close to the site's northern boundary. The site is relatively flat with scattered vegetation, none of which is proposed to be retained.

The subject site shares boundaries with 4 other residential properties, to the north, south and east.

To the north of the site is a multi-dwelling development comprising 5 single storey dwellings. This development has a front setback from Cooper Street of 7.9 metres and extends for the length of the site.

The abutting property to the south of the subject site is a single storey weatherboard dwelling which is setback 9.6 metres from the Cooper Street frontage.

To the east of the site are 2 residential properties which have their frontages to Roberts Street. Both properties contain single storey dwellings and have their areas of private open space located adjacent to the subject site's eastern boundary.

Across the road on the West tide of Cooper Street are more residential dwellings including a number of multi-dwelling developments, which are becoming more common along the Cooper Street streetscape. The surrounding dwellings comprise a number of different architectural styles and range from single and double storey dwellings with hipped and pitched roofs, to Californian bungalows and multi dwelling developments. Street setbacks are varied and Cooper Street is a slightly wider than average collector road.

5. The Tribunal adopts the following description of the proposal, taken from Mr Rigoni's written submission:

It is proposed to demolish the existing dwelling on the land and develop a purpose built building to be used for the purpose of a 90 place childcare centre. The childcare centre incorporates basement car parking and four rooms contained over the ground and first floor levels.

The childcare centre has been purposely designed to adopt a residential appearance, with architectural elements including hip terra cotta roofing, gable facade and California Bungalow style front entry. The child care centre is proposed to have a transitional frontage setback ranging from 6.85 to 7.49 metres from the Cooper Street front property boundary. The building will have a maximum wall height of 6.19 metres above ground level with the two storey component oriented to the front of the property.

A new vehicle crossover is proposed to be sited at the centre of the site frontage, which will provide vehicle access to a basement car park accommodating 15 car spaces. Planter boxes on either side of the basement ramp assist in softening and integrating the access arrangement with the streetscape. To promote practical accessibility the car park entry adopts a 5.5 metre width with a gradient ramp of 1:8 at the entry and 1:5 at the descent. The car park also incorporate a lift in addition to two separate stairwells to the ground and first floor. The car park is also featured by an electronic sign to the entry in order to indicate the availability of car parking spaces. The existing vehicle crossing situated to the north west corner of the entry is proposed to be removed with the footpath and naturestrip reinstated.

The ground floor is featured by a separate pedestrian entry to the reception and Childcare Centre Co-ordinator office. The kitchen is centrally sited and in vicinity to the lift, in order to provide effective service to rooms 1 and 2 situated on the ground floor and rooms 3 and 4 situated on the first floor. Situated to the rear of the kitchen are rooms 1 and 2 which each accommodate up 30 children. Room 1 is to accommodate 5 to 6 year olds, whilst room 2 is to accommodate 4 year olds. A communal toilet and bathing area will serve each room. External access is provided to a ground level terrace area situated to the east of the building. The terrace area will be sited underneath the first floor terrace area situated above. The ground floor terrace area is to be treated with 1200mm powder-coated screens along the side (north and south) and rear (east) elevations set 1500mm above floor level. Access to the rear ground level play area is provided via a pair of low 1:12 gradient pedestrian ramps. The ground floor of the centre is proposed to setback 1.75 metres from the respective side (north and south) boundaries.

The first floor of the childcare centre is to accommodate room 3 (toddler room 3 year olds) and room 4 (babies room up to 2 years of age). Each room is proposed to accommodate up to 15 children. Access to the first floor is achieved via a lift with separate stair access available. The rooms are also featured by joint access to a communal toilet and bathing area. External access is provided to a first level terrace play area, with shade sails proposed to provide solar protection for children. The first floor is setback 4.65 metres from the north side boundary, and has setbacks ranging from 2.155 and 3.150 metres from the south side boundary. The terrace area has setbacks ranging from 4.65 to 2.0 metres from the north side boundary and will be similarly treated with 1200mm powder-coated screens set 1500min above floor level to the side (north and south) and rear (east) elevations.

The hours of operation will be from 6:00am to 6:00pm Monday to Friday and will include a maximum of 12 staff members plus 1 cook between 10: 00am to 2:00pm. The four rooms will include a total of 90 registered places comprising:

The building will incorporate a selected "red" coloured face brick work at ground level with texture render finish to the first floor. The front facade is featured by a California Bungalow style entry with leadlight panels to the central window. The roof will be set on a 26-degree "orange" terracotta tile hip roof form. A feature of the childcare centre facade is a front gable with texture render and oregan battens.

6. The relevant planning controls were fully set out at pages 8-13 of the Responsible Authority's submission, which I adopt for the purposes of this determination.

7. The subject application for permit (No. MV/15377/2002) was lodged with the Responsible Authority on 23 August 2002. Following the giving of notice of the application, 23 objections were received. The grounds for objection were summarised by Ms Stupak as follows:

8. At its meeting on 10 December 2002 the Council's Town Planning Committee considered the proposal and decided to refuse the application on the following grounds:

1. The scale and visual bulk of the proposal is inappropriate and out of character with the surrounding area.

2. The proposal will increase traffic levels in the locality and will result in a loss of amenity and create safety hazards for local residents.

3. The proposed development will result in an increase in noise to the detriment of abutting neighbours and the local area.

4. The loss of amenity to residential properties is contrary to the objectives of the Discretionary Uses Policy in Residential Zones as outlined in Clause 22.02 of the Moonee Valley Planning Scheme.

9. The subject application for review was lodged on 22 January 2003. The stated grounds for review were that:

1. The development proposed is appropriate to the site and will compliment the existing neighbourhood character of the area.

2. The proposal will not have an adverse traffic impact on the locality.

3. The proposal will not have an adverse noise impact to the abutting neighbours and the local area.

4. The proposal satisfies the objectives of Clause 22.02 - Discretionary Uses Policy in Residential Zones of the Moonee Valley Planning Scheme.

10. Subsequent to the hearing the Tribunal inspected the subject site as well as the surrounding area.

11. The principal issues for consideration in respect of this application for review can be considered under the following headings:

12. The subject site is zoned Residential 1 under Clause 32.01 of the Moonee Valley Planning Scheme. Within the zone a childcare centre is an unspecified Section 2 use under Clause 32.01-1 and a permit is required to construct buildings and works for a Section 2 use.

13. Under the Residential Land Use Objective of the Municipal Strategic Statement at Clause 21.6, the relevant strategy seeks to ensure:

That new development enhances the character of each neighbourhood and to protect the amenity of existing and future residents by ensuring that non-residential uses are compatible with residential activity.

14. Clause 22.02, discretionary use policy in residential areas, is used by Council to guide non-residential development within residential areas. The Council's primary objectives in preparing the policy include:

* To provide a higher degree of certainty for developers and residents.

* To protect the existing residential character of the City by promoting and encouraging development in an orderly and proper manner.

* To ensure that development of discretionary uses caters for the needs of the community without unduly intruding on the existing residential amenity standards.

15. It was Council's submission that the application failed to adequately respond to the fourth objective, in particular that:

... the child care centre will unduly intrude on the existing residential amenity standards of Cooper Street by its adverse impacts on noise, overlooking, traffic impacts and is not an appropriate response to the neighbourhood character by designing a building which is excessively bulky and will visually intrude into the streetscape and rear spaces of abutting properties.

16. The locational criteria that will be used to decide where non-residential uses are best situated are set out at Clause 22.02-2 of the policy. In summary, such uses will be encouraged to locate within existing shopping centres, but where they are to be located in residential areas, the preferred locations are: corner sites that adjoin or have access to a road zone or sites abutting non-residential land uses or commercial or industrial zones. Where loss of residential property is involved you should be justified on the basis of community need or demand for the use. The policy also states that Council will not encourage the concentration of non-residential uses.

17. The specific uses mentioned under the policy include: medical centre, restaurant and take-away food premises, convenience shop, service station, motels, place of assembly and place of worship, hotel and tavern. Each of these uses have distinct characteristics which set them apart from a child care centre and which lend weight to the locational criteria and constraints that Council might seek to apply in considering a permit. In my view, such measures are less relevant to a child care centre.

18. The Tribunal has long recognised that child care centres are appropriately located within residential areas. I note in particular the recent decision referred to by Mr Testro: Matthews v Glen Eira CC [2002] VCAT 1338 (1 November 2002) and Graham Jones Architect v Boroondara CC [2002] VCAT 1398 (25 October 2002).

19. Although construction of the centre will involve the loss of an existing houses, I am satisfied on the basis of the evidence provided by Mr Testro on behalf of the owners that there is a need and demand for the proposed centre.

20. The proposal does not seek to concentrate non-residential uses nor does it result in the isolation of other existing residential properties.

21. In terms of the ability of the proposal to preserve the site's residential character, I have found that the proposal will portray a residential appearance. The design adopts the materials found on many of the more substantial dwellings in the immediate area with red bricks to the ground floor, rendered walls to the first floor, a terracotta tiled roof and rendered and battened gables.

22. Although the majority of dwellings in the neighbourhood are single storey, double storey single dwellings and multi dwelling units are also evident. The design of the centre meets the relevant residential setbacks and concentrates the whole of the building bulk within the front half of the site. It can therefore be regarded as being designed to a residential scale. Further, the façade and presentation of the building to the street and the provision of basement car parking ensure that the proposal will make a positive contribution to the streetscape and character of Cooper Street.

23. Concerns regarding noise were expressed by several of the objectors, but notably by Mrs English on behalf of her fellow residents in the single storey units at 52 Cooper Street on the north side of the subject site. In particular, objection was raised to the noise likely to be generated by the children during the scheduled outdoor play times, which will usually occur between 9.30am and 11.20am in the morning and 2.30pm and 4.30pm in the afternoon. Apart from the hours of use of the playground, the second principal concern arose from the fact that the toddlers play area is proposed to be situated at the rear of the building on the first floor level and therefore would tend to propagate the noise over a wider area. The evidence of Ms Hui was that the impact of the noise of children playing could be minimised by the provision of acoustic treatment to the boundary fences surrounding the ground floor playing area at the rear of the building and by the provision of an acoustic screen fence 1.5m high to the first floor outdoor play area. In addition Ms Hui recommended that rubber matting, vinyl or a similar covering be installed over the floors of play areas attached to the building at both the ground and first floors. Conditions of the permit will require these measures to be installed.

24. Ms Hui advised that the sound of children playing will be audible at the adjacent properties and inside those dwellings with windows open. However, with windows closed, the sounds of children would be greatly reduced. I agree with Ms Hui's conclusions and the findings of earlier decisions of the Tribunal that the noise of children playing is not generally considered offensive and that child care centres do not have an unreasonable noise impact on residential areas.

25. Concerns in relation to potential overlooking were raised in relation to the north and south facing windows on the upper floor of the centre. Even though the upper floor would be occupied by children under the age of three, there was concern that teachers or parents visiting the centre might have unobstructed views into adjacent residences or private open space. The plans indicate that the north facing windows of Room 4 already have sill heights 1.7m above floor level. In relation to Room 3, a condition of permit will require the south facing windows to have sill heights of 1.7m. However, the north facing windows of Room 3 overlook the play area at the rear of Room 4 and are in any case prevented from overlooking neighbours to the north by the 1.5m high acoustic screen that will surround the first floor play area.

26. Car parking is provided in the basement of the centre which is accessed by a centrally located two-way ramp 5.5m wide and 15 car parking spaces, one of which is for disabled parking. I accept the evidence of Mr Robertson that the car park has been designed to be attractive to parents to use to drop off and pick up children by creating a wider than usual central access aisle and by having 11 of the spaces 2.8m wide compared to the standard 2.6m required by the Moonee Valley Planning Scheme. Staff parking spaces are proposed to be located near the rear of the car park area with parking for parents available closer to the entrance and the lift to the ground and first floors. An electronic sign advising of the availability of parking spaces at the top of the ramp will enable parents to be confident that space is available within the car park.

27. Mr Robertson was able to demonstrate that the provision of 15 spaces will satisfy the anticipated peak parking demands for all but a short time around 9am when on-street parking will be required to the extent of one vehicle space. Despite this evidence, residents remain sceptical of the willingness of parents to use basement car parking when on-street parking is available and suggested that basement parking would be less safe for children.

28. I agree with the submissions made on behalf of the applicant that the operator of the facility will have some ability to influence parent behaviour in relation to this matter. Negotiating such parking spaces has become an everyday part of most drivers' lives in the metropolitan area. If properly managed, the facility should be seen as an advantage rather than a disadvantage. Vehicles entering or leaving the car park will do so at low speeds and given the adequacy of the central aisle should not pose a hazard for other parents with young children moving from their car towards the lift or the stairs. In many respects it can be regarded as a safer environment than a collector street with vehicle parking on both sides of the road carrying a traffic volume of 4,000 vehicles a day.

29. I adopt the evidence of Mr Robertson that the traffic impact of the proposed child care centre on the operation of Cooper Street, including a collection of refuse and the delivery of foodstuffs, is anticipated to be minimal and that there are no traffic engineering reasons why a permit should not be granted for the proposed development.

30. In summary I have found that the proposed use and development of a two storey child care centre with basement car parking at 50 Cooper Street, Essendon is not contrary to the objectives of the Discretionary Uses Policy in Residential Zones in Clause 22.02 of the Moonee Valley Planning Scheme. In particular, the scale, design and materials of the proposed building are regarded as appropriate and in character with the surrounding area. The increased noise of children playing or the small amount of increased traffic on an already busy collector street, are not unreasonable amenity impacts in a residential area with a frontage to Cooper Street.

31. Accordingly I will direct that a permit issue.

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