1. Leave is given to the Applicant to substitute for the permit application plans, the plans marked as TP01 - TP04 inclusive all Revision D.
2. By close of business on Monday 31 March 2008, the Applicant must notify (in writing) the Tribunal and other parties to this Application for Review whether or not amended plans will be prepared to respond to the Tribunal's direction. If no reply is received, or if the Applicant states it does not intend to prepare such plans, the Tribunal will proceed to make a final determination in relation to this Application for Review.
3. If the Applicant intends to prepare amended plans, documents must be prepared, filed and served no later than four weeks from the date of the Applicant's stated intention to prepare such plans. [An application may be made to the Tribunal for an extension of time]. The amended plans and any accompanying submissions must be filed and served by the Applicant. A statement of changes must be supplied. Service is required on the Responsible Authority and all Respondent Objectors to this proceeding. A statement of service must be filed with the Tribunal.
4. Within three weeks of the date of receipt of revised plans and accompanying submissions on behalf of the Applicant, any party may submit to the Tribunal submissions in writing in relation to that material. Submissions must be confined to the changes proposed to the layout and not to matters upon which findings have been concluded as set out in these reasons. A copy of any submission filed with the Tribunal must be served at the same time on other parties to this Application for Review.
5. Any party to the Application for Review may request that the proceeding be brought on for further hearing in order that submissions may be made orally. In absence of such a request, and unless the Tribunal of its own volition determines that a further hearing is required, the Application will be decided on the basis of all written and oral submissions presented at the Hearing on 18 February 2008 (and statements of grounds filed prior to that time) and the supplementary material filed in accordance with the above directions.

Mr J Cicero, solicitor of Best Hooper. He called Mr M Negri, town planner, and Mr D Hancox, traffic engineer, to give evidence. A statement of evidence by Mr J Patrick, landscape architect, was filed. No party sought to cross-examine Mr Patrick.

Mr P Jewell of Jewell Partnership on behalf of D Perrin, A Perrin, M Tong, W B Tong & D Tong.

Mr M J Walsh, Mr A Cornell, Mrs S Barnes and Mr R Nicol all in person.

1. A child care centre with 150 places is proposed on a site fronting Serpells Road in Templestowe. As a review against the Council's decision to refuse the permit application was lodged by the permit applicant, the Tribunal must decide whether a permit should be granted. The Council and local residents oppose the proposal on grounds variously relating to increased traffic congestion, potential conflict with traffic and pedestrian activity generated by two proximate schools, insufficient on-site parking and a poor design response. These grounds are challenged by the permit applicant.
2. Having considered all written and oral submissions with regard to the provisions of the Manningham Planning Scheme, and having inspected the locality at peak school times, I have decided that the proposal in its current form is not acceptable. However, I am affording the Applicant an opportunity to revise the plans to attempt to address my concerns. My reasons follow, noting that I do not recite all of the material presented as all documentation is held on the Tribunal's file.

1. Located on the south side of Serpells Road, the review site is 4,000 square metres in area and has a street frontage of around 53 metres. The site is vacant with a number of mature trees including a row of five pines along part of the street frontage. The land was subdivided following a planning permit issued by the Council in 2005 wherein the review site and a second 4,000 square metres lot were separated from the St Charles Borromeo Primary School. Building envelopes and a Section 173 agreement apply to the two lots fronting Serpells Road. For the review site, the agreement has restrictions including confining buildings and works to the building envelope and preventing vegetation removal outside the building envelope unless (in relation to both matters) the written consent of the Responsible Authority is provided. There is also a requirement for planting a minimum of nine indigenous trees prior to the occupation of a building.
2. The review site is opposite a residential property and a monastery. To its west is the second vacant lot for which a permit applicant has been lodged for a 60 bed nursing home. There is a dwelling next to the west. To the east of the review site is the driveway to the St Charles Borromeo Primary School that contains some parallel parking and leads to a large paved car park in front of the School. Next to the east is a dwelling and then another dwelling on the south-west corner of Serpells Road and Tucker Road. Further to the south is the Serpell Primary School.

1. Approval is sought to use and develop the land for a 150 place child care centre. The centre would operate from 7am-6.30pm Monday to Friday with up to 15 full-time employees and 5 part-time staff. The building would be single storey with 29 car parking spaces provided within the front setback to Serpells Road. One access point is proposed, widening the existing crossover. A school crossing would be relocated.
2. Existing trees on the land would be retained, other than nos. 55 and 56 that the Council has already agreed can be removed. A landscape plan was tendered through Mr Patrick's evidence. That plan provides for the retention of the pines but the evidence was that it would be preferable for the five pine trees across the site frontage to be removed. Other trees that are proposed for retention, in accordance with the Section 173 agreement and an arborist's report, would be fenced from the childrens' play areas.

1. A permit is required to use and develop the review site for a child care centre under the Low Density Residential Zone of the Manningham Planning Scheme.[2] Parking requirements are at Clause 52.06.[3]

Is the use of the site for a child care centre acceptable in principle?

1. Some parties do not regard the review site as potentially suitable for a child care centre, as a matter of principle, given the land's location within a Low Density Zone rather than a Residential 1 Zone. They highlight the fact that the Low Density Zone does not include the following purpose that is found in the Residential 1 Zone[4] - "In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs". That point is made to lend weight to the argument that commercial uses of the type proposed are not directed to low density settings such as the review site.
2. It is correct that the Zone purpose does not expressly provide for the proposed use but, as a Section 2 (innominate) use, there is a discretion that may be exercised to grant a permit if an acceptable outcome would achieved in the terms required by the Manningham Planning Scheme.
3. Clause 21 explains that the low density areas of municipality offer a lifestyle choice with a more spacious and attractive environmental setting than might be found in more intensively developed residential areas. It is evident through submissions in this case that these qualities are valued by nearby residents. Low density residential areas may not typically be selected for community facilities (commercial or not) because, if those low density areas are large, there may not be the concentrated catchment or required infrastructure to support a facility.
4. In this case, the review site is within a large pocket of low density land surrounded by Residential 1 zoned land within an established suburb. The site for the proposed child care centre also abuts a school that in turn abuts another school and large recreation reserve. I do not think, as a matter of planning principle, a facility such as a child care centre can be automatically excluded from a low density area and instead it will be the nature of the area (including infrastructure such as roads and other factors such as character) that will be relevant to deciding if a specific proposal can be allowed.
5. Local policy at Clause 21.13 seeks to manage change in low density areas, including an increasing intensity of development, but the policy does not express any specific discouragement of child care centres. The local policy at Clause 22.05 of the Manningham Planning Scheme relating to child care centres is also silent as to the type of zone where such uses are preferred or discouraged. Rather, Clause 22.05 identifies two criteria for the preferred locations for child care centres:
   • Near other community based facilities while avoiding areas where external sources of noise and air pollution or other hazards may unreasonably impact on the amenity of a facility or its users.
   • Where safe and convenient vehicle and pedestrian access can be provided.
6. The review site abuts other community based facilities, being the schools that in turn abut a recreation reserve. There is nothing about the review site that suggests that facility would not offer an acceptable level of amenity for its users. Thus, the proposal performs satisfactorily when tested against the first criterion included contained in the local policy. It is a matter of significant debate between the parties involved in this proceeding as to whether the second criterion would be satisfied. I consider vehicle and pedestrian access to the site later in these reasons, but, if the permit application can satisfy this other arm of local policy, there would be no reason to conclude the site is inappropriate in principle or would be inconsistent with the direction of local policy.
7. Some residents submitted there are other child care facilities with vacancies in the nearby area demonstrating there is no great or overwhelming need for the proposed facility.
8. This is not a ground I can uphold. There is no policy within the Scheme that calls for need to be demonstrated and there are a number of cases where the Tribunal has considered the relevance of the question of need.[5] The primary finding has been a demonstrated need for a facility or use may be a relevant factor in a decision but lack of a need will rarely, if ever, be a ground for refusing to grant a planning permit.

Is the built form outcome of the proposal acceptable?

1. Some Respondent Objectors oppose the proposal in terms of its built form outcome particularly the lack of landscaping around the site's frontage and extent of hard surfaced car park. This was a matter pursued mainly by Mr Jewell and Mrs Barnes, the latter expressing concern about the visual impact when viewed from her property opposite the review site (a submission addressed later in these reasons). Mr Jewell submitted the proposal is not site responsive and fails when tested against the relevant policies at Clause 22.01 relating to design and development.
2. In response, and relying on the evidence of Mr Negri and the landscape plan tendered through Mr Patrick's evidence, Mr Cicero submitted the proposal responds well to the site and context. He submitted the building is set well back on its lot and is single storey in scale, retains trees as sought by the Council (although the pines could be removed and replaced with a more suitable species), provides for additional landscaping and respects the existing character.
3. The building envelope applying to the review site through the Section 173 agreement gives the impression of a very large single dwelling with a driveway.[6] The envelope provides for the driveway, an 18-24 metre building setback from the street, and retention of nominated trees. The child care centre proposal involves development outside the nominated and approved envelope. It proposes the parking area forward of the building, with a setback from Serpells Road of 1.5 metres.
4. The area is characterised by a range of built forms including substantial homes on large blocks with very deep front setbacks. Some lots have high solid front fences and some dwellings or buildings are essentially concealed or considerably softened by dense plantings. The unformed road verges and shoulders add to a "rustic" feeling referred to by Mr Jewell.
5. I have assessed the design aspects of the proposal against the policies at Clause 19.03, 22.01 and 22.05. The latter two are the more specific and useful in this case.
6. The local policy at Clause 22.05-3 includes built form and design matters, upon which I summarise my findings as follows:

The layout of buildings and design of outdoor areas meet the needs of people with limited mobility.

External play areas be designed and located to provide a high standard of amenity with consideration to slope, solar orientation, shade techniques, external noise sources and landscaping.

Policy is met by layout of the facility in terms of siting of play areas, shading provided by retained trees and new landscaping.

High solid fences located along the site's frontage be avoided.

The visual and acoustic privacy of adjoining properties be maintained through the sensitive siting of car parks, play areas, windows, doors and the use of appropriate design techniques.

Discussed below. Policy is met to an acceptable level.

1. Clause 22.01 provides a more extensive set of policy criteria for siting and design. One of the first listed is "The form of development and activity levels generated by the proposal be compatible with surrounding land use." While a child care centre will have more weekday activity than nearby residential uses and probably the monastery, the level of activity is not inconsistent with other surrounding land uses, notably the two schools. I return to this matter again below in relation to access and parking issues.
2. The building's single storey scale and very deep front setback ensure that these components of the proposal are generally acceptable even though the building might have a commercial presentation and long flat roof profile. I expect the visual interest in the building could be enhanced as sought by Clause 22.01. That may be through varied finishes and some modifications to the roof profile, such as to accentuate a skillion form along the longer western wing of the building.
3. More contentious, I believe, is the proposed treatment to the front of the site (outside the building envelope). That comprises the extent and position of all parking to service the proposed use as well as landscaping associated with the parking area. Among the most relevant policies from Clause 22.01-3 to my consideration of this and related landscape matters are:

Appropriate canopy trees be included throughout the development, where appropriate.

Indigenous and other mature vegetation, including ground-storey, be retained on-site wherever possible.

Canopy trees are provided around the side and rear boundaries. Pine trees retained to the site frontage and trees retained in other locations as required by Section 173 agreement.

The Section 173 agreement requires nine indigenous trees to be planted on the lot before the occupation of any building constructed on the land. The landscape plan prepared by Mr Patrick includes many blackwood, she oak, red box and yellow box. The requirement for nine trees can be satisfied and exceeded and species selection can be confirmed or if necessary revised in conjunction with the Council.

Enhanced planting opportunities are required in the site's frontage and along the eastern boundary abutting the front setback area.

A respectful interface be created with residential areas by:

• Providing adequate setbacks to ensure the preservation of existing streetscapes adequate landscaping buffers...
• Providing a planting strip of a minimum width of 1.5 metres along the residential boundary where car parking areas and driveways abut residential properties, in order to screen the parking area.
• Designing the car parking layout to minimise any adverse impacts to nearby properties.

Adequate setbacks provided to side and rear around child care centre. Landscape setback provided to west side of driveway.

As noted above, insufficient landscape setback provided to east side of car park.

A 1.5 metre setback provided from front title but little opportunity for new planting given existing pines. Only two new trees added to eastern end of the pine row.

Greater landscape area to the front of the site required to screen/soften parking and hard surface area.

Car parking areas and driveways contribute to the functioning, safety and appearance of the development by:

• Requiring paved surfaces and other hard standing areas to be constructed with dark coloured concrete or bitumen, coloured patterned concrete or brick paving capable of adding visual interest to the development and compatible with the character of the area.
• Landscaping car parking areas with appropriate canopy trees, where practical, and maintaining them in accordance with an approved landscape plan.
• Being setback a minimum of 1.5m from the boundaries of the site to provide sufficient space for landscaping.
• Being designed and landscaped to blend in with the character of neighbourhood.

No details provided of paving finish but this could be addressed by permit conditions.

Pines and raised ground level to the site frontage would result in front parking area being clearly visible from the street. Deeper landscape area is required to respond to the character of the area and objectives for low density areas.

Trees retained as required around car park but little new planting provided for on east side, abutting driveway to School.

Other landscape setbacks around the building are acceptable and more than 1.5 metres.

Maintenance can be addressed via a permit condition.

1. Thus, the proposal achieves many of the aims of local policy. However, I am less satisfied as to the extent to which the front parking area can be said to "blend with" the character of the neighbourhood in a situation where paving to the front of sites is currently limited or substantially concealed. I form that view aware that the front of the site has been used for parking on gravel previously. A 1.5 metre setback from the street frontage is, in my view, inadequate to respond to the area's character and Scheme objectives for the low density area even though I note the local policy does not expressly seek a deeper landscape area to street frontages.
2. I have not referred to local policies relating to main roads. Serpells Road is a busy collector but it is not a Road Zone under the Planning Scheme. A policy relating to main roads at Clause 22.01 is for a high standard of landscape treatment to be achieved in frontage setback areas by locating parking underneath or to the rear of buildings and planting large canopy trees within a front setback area to complement the boulevard theme. The same policy is not adopted for non-main roads but the design and development policy seeks adequate setbacks to ensure the preservation of streetscapes and adequate landscaping buffers. In my view, the expanse of paved parking to the front of the site, setback 1.5 metres from the street frontage, would not produce an acceptable streetscape outcome. That is because of the limited depth of the landscape strip, the high and poor condition of pine canopy that would not conceal nor particularly soften the presentation of a car park, and the inability to plant beneath the pines.
3. I understand the Council's preference for the pines to be retained. Although they may make a contribution to the streetscape, they do not provide good screening for parking to the front of the site. An arborist report describes them as being senescent and/or in decline, one is dead and one is almost dead.[7] I agree with Mr Patrick that a better outcome could be achieved by removing the pines and introducing a new landscape that, in time, could screen a parking area and provide strong canopy.
4. To assist my consideration of the question of parking within the site's frontage, I inspected many of the child care centres identified on a plan tendered by Mr Cornell to compare their streetscape appearance. The contexts differ to the review site as they are not all in the same zone (some are in the heart of residential areas off main roads), but most rely on some form of paved parking within their frontage. They are smaller than the proposal here and the older centres appear to have some reliance on on-street parking to varying degrees. In some instances, parking in the frontage is well concealed by front boundary planting (eg. Aloha Gardens that is in a court and another centre in Anderson Creek Road near Reynolds Road that is on a main road). One with obvious paved parking to its frontage is also in Anderson Creek Road, but has a smaller parking area than proposed in this case and is accessed off the service road.
5. I am mindful of these comparative situations and the lack of policy expressly discouraging parking within the site's frontage. Nonetheless, a deeper front setback to the street is required to ensure a much stronger landscaping solution is achieved than shown in the current proposal. That is whether or not the pines are retained. I am not able to direct shared use of the driveway into the School as suggested in some submissions, but I agree with Mr Jewell that reducing parking in the front setback would be desirable. Providing more parking to the side or rear of the land would free up the site's frontage for much improved landscaping. Staff parking is an obvious candidate for relocation in this manner. For centre users, providing a setback to aisles and parking that is more in the order of 7-10 metres from the street would offer more planting space and avoid the parking appearing to be perched above the footpath. The building should not be brought closer to the street.

1. The substituted plans show 29 on-site car spaces. Based on Mr Hancox's evidence, that would be sufficient for a child care centre of the size proposed. Respondent Objectors challenge the basis of Mr Hancox's assessment including the comparability of centres used in the analysis.
2. There is no prescribed parking rate for a child care centre in Clause 52.06. The rates included in the Council's Clause 22.05 are a ratio of at least 1 car space per staff member and 1 car space per 7 children or such lesser number if car parking is available within driveway areas where on-way vehicle access is proposed or unrestricted on-street parking is conveniently available. Although lawful on-street parking abuts the site and the area is used casually for school drop-off/pick-up, it is not well formed and the gravel footpath is uneven. This off-site resource should not be relied upon in this case. I also note the Council's conditions seek for this area to become no-standing should a permit issue.
3. For 150 places and up to 20 staff, the local policy would seek 41 on-site spaces. For 100 places and up to 15 staff, the policy would result in a need for 29 on-site spaces. That compares with the empirical assessment by Mr Hancox of a peak generation of 27 spaces for a 150 place centre. Mr Hancox's assessment does not allow for any sharing of trips, such as in association with the Primary School, and thus could be said to be conservative.
4. While there are aspects of the empirical analysis that may be able to be criticised (as the case studies are not necessarily good matches with the circumstances of the review site), there is a sound argument to allow a lesser number of on-site car spaces than required by the local policy. One of the main reasons would be that not all staff would be on-site at the time of peak parking demands by carers/parents - some staff are part-time and casual and arrive during the day to assist, for example, with lunches.
5. A coincidence of peak parking for the proposed centre and schools may occur in the morning rather than the afternoon. I find the circumstances of the site justify a significant on-site parking provision to accommodate that morning peak given many people will drive and the limitations associated with on-street parking. I am also influenced by the fairly intensive level of activity associated with multiple facilities in this area. Service vans and deliveries tend not to occur at peak times.
6. Given changes to the parking layout to address manoeuvrability and landscaping issues (as discussed in these reasons), a total of 19-23 on-site spaces would be required to serve a facility with 120 child care centre places in this location or 16-19 spaces for 100 places. That is derived from the higher rates in the evidence (potentially 0.16 - 0.19 spaces per child)[8] for child care centres in areas with greater reliance on cars for drop-off and pick-up and limited availability of on-street parking options, also mindful that some centres appeared not to be at capacity. Supplying the higher figure is necessary in the circumstances of this site.
7. Parking for staff does not need to be directly at the front of the site and could be relocated to the side or rear of the land. I note also the prospect that some/additional staff could be attending to administrative duties rather than caring for children and on-site parking should accommodate these persons. The amount of staff parking required will be linked to the size of the facility that I expect will be reduced as a result of my findings (ie. requiring increased landscaped areas and reduced building areas). An ability to access the child care centre from the abutting school car park might be beneficial if able to be secured - that is with the aim of minimising the extent of car movement if shared trips occur.

1. A number of criticisms were raised about the car park layout to which Mr Hancox responded in evidence. On those matters I find as follows:
   • Adequacy of sightlines for vehicles entering and departing the site. My assessment is that sightlines are sufficient. I note Mr Hancox's evidence that the applicable standards are met or exceeded even though I also appreciate that some vehicles may speed around the road bend to the east of the review site.
   • Absence of a turning bay within the site. This is a valid criticism of the car park layout. Given the road conditions, the prospect of reversing within the site would add to the complicated vehicle situation and is not preferred. A revised parking layout must include an area to enable vehicles to turn within the site and facilitate cars moving in a forward motion.

Would there increased traffic congestion and danger to pedestrians/others?

1. This is one of the main issues raised by residents. They described existing parking and vehicle congestion and convergence having regard to through traffic and delays and queues created by school traffic, cars turning into the school, and the school crossing. They fear existing problems will be exacerbated by more traffic coinciding with high volumes of through and School traffic, jeopardising driver and pedestrian safety. I was referred to several accidents that had occurred in the area.
2. On the evidence before me, the desirable capacity of traffic on Serpells Road is drawing close to a level of 3,000 vehicles per day that was identified by Mr Hancox. I was told the current weekday average measured by the Council is 2,580 vehicles per day. The proposal (at 150 places) would add 300-350 vehicles per day (excluding multi-purpose trips to the child care centre and school) plus an estimated 120 vehicles per day for the proposed nursing home. If these figures are accepted, then the average per day would be at or above 3,000 vehicles per day.
3. School peak make a substantial contribution to traffic and delays and, should school numbers grow, that may worsen. Examples of poor and discourteous driver behaviour were described to me and no doubt occur. Even so, I find the proposal (with fewer places to accommodate changes to the layout as discussed) can be accommodated within the constraints of the existing situation involving the school crossing, driveway to the School, and bus stop. The Applicant has not opposed relocating the school crossing as sought by the Council's proposed conditions.

Would the proposal have unreasonable off-site impacts to the abutting residential properties?

1. Two issues were raised by the parties in relation to potential off-site amenity impacts upon residents. On these matters I find as follows:
   • Noise. I do not consider the proposal would result in a level of noise that would impact unreasonably upon any nearby residents. The site does not directly abut any dwelling and the weekday-only use would ensure that there would be no impacts at weekends. Children are not outside all day and play areas are a distance from the closest homes.
   • Views from the Barnes property. I have referred above to Mrs Barnes' concern about the visual impact of the car park. Her home enjoys a large open front setback. Views would be possible to the car park as the ground level is raised and the pines do not provide low level screening. I am satisfied that the visual impact of the car park would be diminished with changes to the front of the site that I have canvassed previously in these reasons.

What about compliance with the Section 173 agreement?

1. I have referred to a Section 173 agreement that applies to the land. Mr Walsh submitted the proposal would breach the terms of the agreement and it is premature to seek approval for the proposal that in turn would require further permission under the terms of the agreement.
2. I note the need for a variation to the agreement should a permit issue but that is a matter upon which the Council can decide. It is not a factor that warrants rejection of the permit application. Even if the Council decided not to vary the agreement, such a decision is open to review. Thus, the need to vary the agreement to enable the proposal to proceed is not, in my view, a bar to allowing a proposal that has been found to be acceptable in terms of the requirements of the Manningham Planning Scheme.

1. The proposal for a child care centre on the review site performs satisfactorily in terms of general location principles, however, the low density setting and existing traffic and parking situation together require careful consideration of the impact of the proposed development.
2. For reasons set out above, I find that, in its current form, the proposal is not acceptable. It is necessary to achieve an enhanced presentation to the front of the site with more landscaping and better internal manoeuvrability. Reconfiguring the layout to at least relocate staff parking away from the site's frontage would assist to allow a much deeper landscape setback. There is also a need to provide a turning area on-site. The changes I consider are required may result in a reduction in the size of the number of child care places. I also think the building's visual interest could be enhanced.
3. I consider that there is scope for amendments to the proposal to achieve an acceptable outcome. I have therefore decided to afford the Applicant an opportunity to prepare revised plans to respond to my concerns and provide the parties to this proceeding with an opportunity to comment prior to a final decision on this Application being made. Directions are set out in my order.

[1] Based on plans that I substituted at the commencement of the hearing. The substitution request was not opposed other than by Mr Walsh who objected on the basis that the revised plans had not been considered by the Council. I gave an oral ruling as to why I would allow the substitution. I said, inter alia, the Tribunal's practice requirements had been met and noted Ms Maglitto's advice that the Council delegate had sufficient time to review and form a position on the plans.

1. [2] Pursuant to Clause 32.03. Relevant Clauses are 11, 12, 14, 15, 17.02, 18.02, 19.03, 21 (Municipal Strategic Statement), 22.01 (Design and Development Policy), 22.05 (Child Care Centres Policy) and Clause 65 (general decision guidelines).

[3] A child care centre is not specified in the table to this Clause. Where a use is not included in the table at Clause 52.06-5, an adequate number of car spaces must be provided to the satisfaction of the responsible authority.

[4] This purpose is also contained within the Residential 2 and 3 Zones.

[5] Notable is Shell Company of Australia Pty Ltd and Ors v City of Frankston and Anor 8 APAD 127 at 135.

[6] The expectation that the lot would be a house lot is clear from the officer report assessing the subdivision application. However, that does not prevent an alternative use and development being considered in accordance with the Planning Scheme's provisions.

[7] Arboricultural Inspection and Report by N Archer, dated 24th April 2007, referring to trees #1 - 6 inclusive.

[8] This coincidentally is identical to data referred to be Member Cimino in Lappin v Banyule CC [2007] VCAT 143.