1. In permit application no. PL07/018145, the decision of the Responsible Authority is set aside. A permit is granted and is to be issued. The permit relates to the land at No. 222-234 Serpells Road, Templestowe. The permit will allow the use and development of the land for a child care centre in accordance with the endorsed plans. The permit is subject to the conditions contained in Appendix 1.

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 school traffic and pedestrian activity, insufficient on-site car parking and a poor design response.
2. I issued an interim decision in relation to this proceeding on 11 March 2008. In response to my directions, a revised set of plans was filed by the Applicant (TP03 Revision F and TP04 Revision F). Submissions in response were filed by Mr A M Cornell, Mrs S Barnes, Mr R Nicol, Ms L Müller & Mr R Dowling, M J Walsh, A Perrin, S James and Maddocks lawyers on behalf of the Responsible Authority. No party requested the hearing be re-convened and I have had no reason to direct a further hearing.
3. In reaching a final determination, I have:
   • considered all supplementary material and submissions filed with my leave, although I do not recite the contents;
   • considered the submissions presented during the earlier phase of these proceedings including comments on permit conditions;
   • proceeded on the basis that the circumstances of the review site and applicable planning controls and policies as relevant to this permit application are unchanged as my attention was not drawn to any variations that might be relevant to a final determination.

1. Changes to the plans upon which my interim order was based are described in correspondence from Best Hooper solicitors dated 18 April 2008. A letter from TTM Consulting was attached. I refer to these as the "revised plans".[1] Some of the main changes stated include:
   • reduction in the number of child care centre places to 120.
   • reduction in the number of car spaces from 29 to 23.
   • alterations to the car park layout to increase the landscape buffer to the street to 7.189 metres and to relocate 15 spaces to the east side of the building with a 1.2 metre high screening wall.
   • modifications to the building's floor area and variations to the roof.

Have the revised plans addressed the Tribunal's concerns?

1. In my interim decision I sought revisions to the proposal to address my concerns. Those concerns included:
   • the extent of parking in the frontage of the site and close to the street.
   • the need for better internal manoeuvrability within the site for parking, noting the absence of a vehicle turning area on-site.
   • a benefit in enhancing the building's visual interest.
   • the need for revisions to on-site parking, including the potential for staff parking to the side or rear and secured pedestrian access to the rear in the event of carer's/parents also dropping or collecting children from the adjacent school.
2. Submissions in response to the revised plans contended the changes do not address my concerns because of matters such as:
   • vehicle conflict associated with car spaces no. 1 and 2.
   • inaccuracies such as 22 spaces being shown on the plans not 23 as stated - that is, there is a total of 10 spaces for staff not 11.
   • lack of turning area within the site - possible removal of bay nos. 12 or 23 could provide for that purpose meaning the loss of another space.
   • problems with car space no. 3 given trees nos. 48 & 49 that are stated as being retained.
   • no disabled persons parking.
   • concerns about dangers to users and pedestrians of the parking area.
   • issues about the location, or absence of, pedestrian paths and sightlines with the feature stone wall.
   • uncertainty about materials and finishes for the building, walls and fences.
   • institutional design with no substantive changes made.
   • dominance of parking to the site frontage remains.
   • insufficient landscaping between the staff car park and building.
   • insufficient landscaping along the eastern site boundary and frontage.
   • relocation of the school crossing has not been addressed.
   • works would be outside the approved building envelope.
   • details of the number of babies are not shown for the cot room and certain elements on the plans are not scaled/dimensioned.
3. A procedural issue about the timing of service of the revised plans was raised by Mr Cornell but I am not persuaded any party has been disadvantaged by late service.
4. The correcting plan was filed by the Applicant without my leave. I have not sought an additional round of submissions with respect to that corrected plan as the changes or corrections are inconsequential to my determination; corrections would have been directed by me to be made through permit conditions even without any suggestion by the Applicant that was possible.
5. After considering the revised plans and submissions, I have decided to set aside the Council's decision and direct that a permit be issued. The improvements made in the revised plans respond sufficiently to the issues raised in my interim decision, subject to some further variations. I have found the proposal would produce an acceptable outcome when tested against the applicable provisions of the Manningham Planning Scheme.
6. The grounds relied upon by those opposing the proposal can be divided into several topics, which I address as follows.

1. In my interim decision, I referred to 19-23 spaces being required for 120 child care places in the context of this application. I think some parties have interpreted this to mean 19-23 for carers/parents alone, whereas it is a total figure including staff. I indicated 16-19 spaces for a 100 place centre.
2. The revised plans show 22 spaces, not 23 as the plan numbering and related written material states. That can be corrected as there is room to the south of the staff car park for an additional space(s). However, there are various elements of the revised parking layout that I think are problematic:
   • I do not consider the layout provides for convenient turning within the site for carers/parents and thus car space no. 12 should be removed to enable an improved area for turning in this front part of the site.
   • the retention of tree no.49 is impossible with the location of car space no. 3 and tree no. 48 may also be impacted by the revised car park layout.
   • car spaces no. 1 and 2 are close to the entry and may give rise to a conflict point. Even if removal of trees no. 48 and 49 was agreed to by the Council via the Section 173 agreement, using this area for landscaping would be better visually and functionally than the car spaces close to the site's entry and a bend.
   • there is no bay for persons with disabilities.
   • the Council referred to the need for parking spaces to have an overhang of 0.4 metres (a matter I think can be dealt with in detailed design).
   • the staff spaces appear to be only 4.7 metres deep (although there are issues with scaling the plans).
3. I think realistically eight car spaces can be provided to the north of the building and space no. 4 widened to service persons with disabilities. A total of eight spaces for pick-up/drop-off and 11 for staff would be acceptable for a child care centre with 100 places in this location, consistent with the findings in my interim decision. In forming that view, I am mindful that is scope for parents/carers to also use staff spaces during drop-offs and pick-ups and for some of the front car park to be used by casual and part-time staff in non-peak times. There is room for a turning area to also be provided at the southern end of the staff parking area.
4. By a permit condition, I will require the facility to be limited to 100 places but with an ability for minor variations to be allowed by Council through a secondary consent. Consideration of any request can be informed by the extent of parking use once the use is operational.

1. The revised plans provide for a 7.1 - 7.3 metre wide landscape strip along the site frontage increasing to 8 metres at the north-east corner. Although that is at the lower end of the 7-10 metres referred to in my interim decision, I find this area to be acceptable to reduce the extent of hard surface.
2. As stated in my interim decision, I think there are good reasons for removal of the pines and their replacement with a new landscaping treatment that offers generous low and mid level vegetation. Their poor condition means several pines are likely to need to be removed in any event. Ultimately, this is a matter for the Council and there is sufficient space with the landscape treatment to provide additional lower level planting if the pines are kept.
3. The Council sought additional areas for landscaping along the eastern boundary (from 2.384 increased to 2.5 metres) and between the staff car park and building (from 0.81 metres to 1.5 metres including an area of overhang for vehicles). I am satisfied the area along the eastern boundary is sufficient for landscaping and is wider than the 1.5 metres referred to in the local policy at Clause 22.01 where there is an interface with a residential property.
4. I think continuation of the low level feature wall proposed to the north of the car park, but also adopted for the eastern side of the staff car park, would be desirable although an alternative may be agreed with the Council. This is a matter that can be examined in detailed design through a final plan for the Council's endorsement. I do not consider the feature wall to be an unreasonable obstruction to sightlines but would also have no issue if it was lowered to one metre in height, below the usual eye height for a driver.

1. The revised plans were criticised for a lack of pathways, such as from the east and the position of the western pathway to service users of the front parking area.
2. The westerly pathway would assist those walking to the site from the local area and there would be room for a pathway between the car spaces and building to service those arriving by car. The addition of a pathway from the east would be desirable to again service those coming by means other than a car.
3. There is no indication in the revised plans and associated material of any arrangements that have been considered for secure access to the rear of the site for those who might also be dropping/collecting children from the adjacent School. This is another detailed matter that can be provided for through the refined and finalised design should it be feasible.
4. There may be scope to also provide a secure access point for staff along the eastern side of the building thereby minimising pedestrian movement within the parking areas. This too can be assessed in a final design for the Council's endorsement.

1. The statement of changes refers to variations to the roof form and narrowing of the building but this is challenged through Mr Connell's supplementary submission.
2. In my interim decision, I found the building form to be generally acceptable and said additional visual interest could be achieved. On my assessment, it is correct that the change that has been made to the design is to the breadth of the building across the site. That results from the revisions to the building footprint. The outcome is an improvement in my view when considered together with the wider landscaping setback to the front of the site and additional planting I will require to the north-west corner in place of several car spaces. The roof form could still be varied together in detailed design and even though the revised plans have not included significant changes I do not find this fatal to the proposal when considering the other benefits from changes to the site layout and building.
3. I am satisfied for other aspects of materials and finishes to be finalised in conjunction with the Council, as often occurs in permit applications.

1. I finally briefly refer to other matters raised in submissions.
2. First, Mr Walsh submitted the building envelope presents a bar to the grant of a permit for reasons contained in his supplementary submission. I made findings on this question in my interim decision wherein I did not accept the submission made by Mr Walsh.
3. Second, the plans have no scale and do not scale at 1:100 taking into account dimensions that are marked. This needs to be reviewed. I have assessed the revised plans based on the marked dimensions. Numbers for the cot room can be confirmed via conditions.
4. Third, the relocation of the School crossing is a matter the Council proposed be dealt with by a permit condition. I will require that change as proposed by the Council.

1. For the above reasons, I find that the proposal is acceptable having regard to the site's context and directions of the Scheme as detailed in my interim decision. The revised plans have not addressed all of the matters raised in my interim decision and valid issues have been identified in the supplementary submissions. However, the outstanding concerns can be addressed through permit conditions. I will limit the number of child care places to 100. Commensurate variations to the building floor area will ensure sufficient space is available for pathways to be added and other minor changes made to the plans.

The permit will allow the use and development of the land for a child care centre in accordance with the endorsed plans.

1. Before the use and development starts, amended plans must be submitted to and approved by the Responsible Authority. When approved, the plans will then form part of the permit. The plans must be drawn to scale with dimensions and two copies must be provided. The plans must be generally in accordance with the plans prepared by GSA Architects (Ref. No.06077/ TP03 Revision F and TP04 Revision F dated April 2008) but modified to show:
   • (a) Confirmation of a scale on the plans.
   • (b) A total of eight car spaces along the northern part of the site by deleting car spaces nos. 1, 2 and 3 (replace with landscaping) and providing a turning area by the removal of car space no. 12.
   • (c) Adaptation of car space no. 4 into a disabled parking bay.
   • (d) No less than 11 car spaces along the eastern side of the building, including increasing the depth of spaces to a minimum of 4.9 metres, and the addition of a turning area at the southern end of the staff car parking area.
   • (e) Relocation of the school crossing 15 metres east of its existing location unless an alternative is to the satisfaction of the Responsible Authority.
   • (f) Provision of pedestrian pathways:
     • (i) between the northern car parking bays and the building; and
     • (ii) to service pedestrians accessing the site from the east.
   • (g) Fencing abutting the eastern boundary between the driveways of the St. Charles Borromeo Primary School and the driveway of the land to be feature stone wall or similar, to a height of approximately one metre, unless an alternative design response (with or without a fence) is to the satisfaction of the Responsible Authority.
   • (h) Signage to identify no standing areas on school days in accordance with VicRoads guidelines.
   • (i) A schedule of materials, colours and finish of all external walls, roofs, fascias, window frames and paving (including car parking surfacing) specifying the use of muted tones. Variations are required in materials and finishes, and the roof profile, to provide greater visual interest.
   • (j) The access ramp at the main entry to have a minimum grade of 1:20.
2. The use and development as shown on the approved plans must not be altered without the written consent of the Responsible Authority.
3. Prior to the commencement of the development, an amended landscaping plan must be submitted to the Responsible Authority for approval. Such plan must show the provision of nine (9) indigenous trees to be planted on the site as required by Clause 2.5 of the Section 173 Agreement registered on the title to the land.
4. No vegetation, apart from that shown on the approved plan as vegetation to be removed may be felled, destroyed or lopped without the written consent of the Responsible Authority.
5. The owner must ensure that contractors/ tradespersons who install services or work near the vegetation to be retained are made aware of the need to preserve the vegetation and to minimise impacts through appropriate work practices.
6. The recommendations of John Patrick Pty Ltd relating to fencing, mulching, drip irrigation and construction of parking bays (as contained in the report dated December 2007) must be implemented to the satisfaction of the Responsible Authority.
7. Before the use of the building starts, landscaped areas must be fully planted and mulched or grassed generally in accordance with the approved plan and to the satisfaction of the Responsible Authority
8. Before the development starts, three copies of a Construction Management Plan must be submitted to and approved by the Responsible Authority. When approved the plan will form part of the permit. The plan must address, but not be limited to the following:
   • (a) Hours of construction;
   • (b) Methods to contain dust, dirt and mud within the site, and the method and frequency of clean up procedures;
   • (c) The protection measures for trees to be retained;
   • (d) A liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced;
   • (e) The movement of construction vehicles to and from the site must be regulated to ensure that no traffic hazards are created in and around the site;
   • (f) Measures to minimise the impact of construction vehicles arriving at and departing from the land;
   • (g) An outline of requests to occupy public footpaths or roads, and anticipate disruptions to local services;
   • (h) The measures for prevention of the unintended movement of building waste and hazardous materials and other pollutants on or off the site, whether by air, water or other means; and
   • (i) The measures to minimise noise and other amenity impacts from mechanical equipment and demolition/construction activities, especially outside of daytime hours.

The Construction Management Plan must be implemented and complied with at all times to the satisfaction of the Responsible Authority unless with the further written approval of the Responsible Authority.

1. Before the development starts, a Waste Management Plan must be submitted and approved to the satisfaction of the Responsible Authority. When approved the plan will form part of the permit. The Plan must include, but not limited to the following:
   • (a) Calculations showing that sufficient space are provided for the proposed number of garbage and recycling bins.
   • (b) The size and location for the storage of general waste and recyclables on the ground/basement floor and details of screening from view.
   • (c) The consideration of the ease of taking the fully laden bins to the collection point(s).
   • (d) Private contractor options, if applicable, detailing the methods of collection with regard to site and road network constraints and the potential requirement to manoeuvre garbage trucks, including a collection plan approved by the proposed collection agencies that meets Council's Wast Management Plan.
   • (e) Confirmation of the hours and frequency of pick-up for general and recyclable waste, with regard to potential noise impacts to the surrounding neighbourhood.
2. The Waste Management Plan approved under Condition 9 of this permit must be implemented and complied with at all times to the satisfaction of the Responsible Authority unless with the further written approval of the Responsible Authority.
3. Before the development starts, plans must be submitted to and approved by the Responsible Authority, showing the relocation of the existing school crossing 15 metres east of its existing location, including necessary pedestrian fencing between the driveways of the St Charles Borromeo Primary School and the driveway for the subject land, and the installation of "No Standing 8-9am, 3-4pm School Days" signage in accordance with VicRoads guidelines, to the satisfaction of the Responsible Authority.
4. Before the development starts, the relocation of School Crossing, the pedestrian fencing and the installation of signage shown on the endorsed plans must be undertaken at the sole cost of the Owner and to the satisfaction of the Responsible Authority and VicRoads where appropriate.
5. The owner must provide on site storm water detention storage, to limit the Permissible Site Discharge (PSD) to that applicable to the site coverage of 35 percent of hard surface or the pre existing hard surface if it is greater than 35 percent. The PSD must meet the following requirements:
   • (a) be designed for a 1 in 5 year storm; and
   • (b) storage must be designed for 1 in 10 year storm.
6. Before the development starts, construction plans for the on site storm water detention storage system must be submitted to and approved by the Responsible Authority. The detention system must be maintained thereafter in accordance with constructions plans by the owner to the satisfaction of the Responsible Authority.
7. Stormwater must not be discharge from the subject land other than by means of drainage to the legal point of discharge. The drainage system within the development must be designed and constructed to the requirements and satisfaction of the relevant Building Surveyor. A connection to Council maintained assets must not be constructed unless a Miscellaneous Works Permit is first obtained from the Responsible Authority.
8. The whole of the land, including landscaped and paved areas must be graded and drained to the satisfaction of the Responsible Authority, to prevent ponding and to minimise overland flows onto adjoining properties.
9. Except with the prior written consent of the Responsible Authority, the number of children who may attend the centre at any one time must not exceed 100.
10. Except with the prior written consent of the Responsible Authority, the number of staff who may work at the centre at any one time must not exceed 15.
11. Except with the prior written consent of the Responsible Authority, the child care centre must only operate between the hours of 7.00am and 6.30pm on Monday to Friday only.
12. The operator of the centre must through proper management and supervision techniques, ensure that excessive noise is not generated by external play activities, to the satisfaction of the Responsible Authority
13. All children's play equipment must be maintained and kept in a safe condition to the satisfaction of the Responsible Authority.
14. The external play areas must be kept in a neat and tidy condition to the satisfaction of the Responsible Authority.
15. At all times the number of car spaces available on site must not be less than 19.
16. Parking areas and access lanes must be kept available for these purposes at all times and must be maintained to the satisfaction of the Responsible Authority.
17. The operator of the approved use must ensure that staff vehicles are parked in designated car spaces to the satisfaction of the Responsible Authority.
18. This permit will expire if one of the following circumstances apply:
    • (a) The development and use are not started within two (2) years of the date of this permit; or
    • (b) The development is not completed within four (4) years of 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 (3) months afterwards.

[1] The plans were sought to be corrected by a letter from Best Hooper dated 21 May 2008, filed without leave. I had detected errors in any event such as inaccurate references to numbers of car spaces.