(b) Condition 17 is deleted and replaced with the following:

1. 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 120.

(c) Condition 23 is deleted and replaced with the following:

1. At all times the number of car spaces available on site must not be less than 23.

Mr J Cicero, solicitor of Best Hooper. Mr M O'Brien, traffic engineer of TTM Consulting (Vic) Pty Ltd, gave evidence.

Mr M Walsh, Mr A Cornell and Ms L Muller in person.

Permit No. PL07/018145 was granted at my direction in mid 2008.[1] That allowed the use and development of the land for a child care centre, with 100 places, and a minimum of 19 on-site car spaces. The proponent seeks to amend that Permit to allow an additional 20 child care places and a minimum of 23 on-site car spaces based on plans marked as Revision J. The Revision J plans address most matters referred to in Condition 1 of the Permit.

Use and development of the land for a child care centre under Clause 32.03.

Clause 52.06 with respect to car parking provision.[2]

Clauses 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 65 (general decision guidelines).

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 land is vacant with mature trees including a row of five pines along part of the frontage. It is opposite a residential property and a monastery. To its west is a vacant lot for which a 60 bed nursing home has been approved by another division of the Tribunal. 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.

The site and locality were inspected for the previous case.

BAMFA Properties v Manningham CC [2008] VCAT 364; BAMFA Properties v Manningham CC [2008] VCAT 925; Application P616/2008 De Nova v Manningham CC.

1. In early 2008, I considered an Application for Review lodged by BAMFA Properties to use and develop the subject land for a child care centre with 150 places. I issued an interim decision in relation to this proceeding on 11 March 2008 and ultimately a final decision on 27 May 2008. That resulted in Permit No. PL07/018145 issuing for a child care centre for 100 places. The permit required a number of changes to the car park layout so as to achieve a minimum of 19 car spaces on-site.
2. Subsequently, the permit holder has applied to the Tribunal for an amendment to the Permit to increase the number of child care places to 120 and to provide a minimum of 23 on-site car spaces based on Revision J plans. The Council and Respondent Objectors oppose the request on grounds that the amendments would be detrimental to the amenity of the area, would cause an unreasonable increase in traffic affecting the surrounding road network and parking, and would cause an unreasonable increase in noise to adjoining residential properties. They contend that the request seeks to re-run matters already decided upon by the Tribunal and is inappropriate in its timing in the context of the Tribunal's earlier findings.
3. The circumstances of the subject land and applicable planning controls and policies considered by me last year are unchanged other than with respect to the recent approval of a 60 bed aged care facility abutting the site.

1. The amendment request is made under Section 87A of the Planning and Environment Act 1987. This proceeding differs from one made under Section 87 where there are a number of tests with respect to an application to cancel or amend a planning permit. Section 87A was introduced in September 2007 to give flexibility to amend permits at a permit holder's request without the need to be tested against the same hurdles or tests in Section 87. The potential latitude in such requests is broad as discussed by Deputy President Gibson in Bestway Group.[3] The test for a request to cancel or amend a permit issued at the Tribunal's direction is, in the words of the Act, if the Tribunal "considers it appropriate to do so" [s. 87A(1)].

1. The parties referred to my decisions and their interpretation of them. My interim decision identified a number of concerns with respect to the initial proposal for a 150 place child care centre. Some parties said I had multiple concerns including with respect to low density character of the area, the condition of Serpells Road and traffic conditions in a complex setting.
2. My decision explains that the determinative issues were the layout of the site and number of car spaces for a 150 place centre. That is apparent from the findings in my interim decision and in my conclusion. I recognised the site's setting and, taking into account the physical and planning contexts, my concerns were the streetscape presentation and the size and functionality of the car park. I said the changes required to address those concerns would be expected to reduce the number of child care places:[4]

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.

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.

1. My interim decision found 19-23 spaces would be required for 120 child care places in the context of this site and facility. I referred to 16-19 spaces for a 100 place centre. Those figures provided for the centre's peak needs including staff. Revised plans filed by the Applicant to respond to my interim decision sought to provide 23 on-site spaces to cater for 120 child care places but the revisions did not satisfy my concerns for reasons explained in my final order.[5] Again, that decision makes clear that the number of child care places I allowed was directly linked to the layout and manoeuvrability issues on-site. I was satisfied that 19 on-site car spaces could be provided and, because of the local circumstances where the higher of a range of parking supply figures should be adopted due to limitations on on-street parking[6], I limited the use to 100 child care centre places. I allowed for an increase in the number of places above 100 to be considered by the Responsible Authority as a secondary consent.[7] I said consideration of any request can be informed by the extent of parking use once the use is operational. That was in the context of 19 available on-site car spaces.

Have the amendments requested essentially been considered before?

1. This question is central to some submissions advanced by the parties opposing the amendments. They contended the Tribunal has considered, and rejected, a proposal with 23 car spaces and thus this proceeding should fail in accordance with the concept of "repeat appeals".
2. I am not persuaded to accept these submissions. The Revision J plans are not the same as the Revision F plans upon which my final decision was based, or even a corrected plan filed without my leave by the Applicant before a final decision was made by me.[8] The key point is that the Revision F plans did not, and the Revision G plan with purported corrections would not, have addressed all of my concerns with respect to tree protection, landscaping, manoeuvrability and turning areas on-site. That is why I said:

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.

1. That is, even with corrections, flaws remained.
2. I do not agree that an increase in child care numbers should be precluded until such time as a centre is operational. As I have said, that possibility was provided for in the context of a facility with 19 on-site spaces wherein more than 100 child care places might be considered if parking demands demonstrated on-site parking was not fully utilised and there were no other problems arising with respect to on-site or off-site impacts.
3. Rather, the critical question is whether the Revision J plans, which have a revised layout, address the matters of concern and can appropriately service a child care centre of the size requested. While of frustration to local residents, it is not unreasonable for a permit holder to seek to vary a Permit and plans. Any such request must be fairly tested on its merits.

1. Having considered the submissions and evidence presented by the parties, I am persuaded that the requested amendments are appropriate. I set out my reasons next.

1. The layout in the Revision G plans shows 23 spaces with two turning bays. It addresses the concerns identified in my final decision with respect to:
   • dimensions of car spaces;
   • removal of conflict points;
   • provision of a disabled persons bay; and
   • tree protection and increased landscaping to the site's frontage/entry.
2. Eight spaces are shown along the northern part of the site as I had said was achievable. One turning bay is not in the location sought by Condition 1(b) but the alternative location is acceptable based on Mr O'Brien's evidence.
3. I do not intend re-visiting my findings with respect to the quantum of spaces. I previously found 23 spaces would be satisfactory having assessed the proposal against the decision guidelines in Clause 52.06. There is no reason for me to depart from that conclusion.

1. I do not accept the Council's submission that the proposed amendments would give rise to additional noise impacts, including to residents of the recently approved aged care facility should it be built, that justify refusal of the Application. The nursing home has been approved mindful of the Permit for the child care centre. An extra 20 child care places will not make an appreciable difference. The interface is acceptable. Moreover, there are no other nearby dwellings that I consider would be unreasonably adversely affected by an additional 20 children on-site or the additional noise associated with traffic and parking activity on-site.

1. I do not accept submissions that the additional 20 child care places and four extra on-site car spaces would give rise to an unacceptable impact on the amenity of the area. I have previously acknowledged the traffic pressures at specific times, the formation of Serpells Road, and on-street parking conditions and limitations. For those reasons, I sought parking to be provided at the higher end of the probable range as well as easy and convenient room on-site to manoeuvre vehicles. I also adopted conditions proposed by the Council relocating facilities in Serpells Road and introducing no-standing areas. I am satisfied that an acceptable outcome would be achieved based on the relevant provisions and policies contained in the Planning Scheme.
2. I also do not consider the visual impact of several additional car spaces along the eastern portion of the site is problematic, as was contended by Mr Connor. Landscaping and/or fencing will assist to limit views to parking areas even though planting will take time to mature.

1. I finally refer to several other matters raised in submissions.
2. First, Mr Walsh submitted a path to the north-east of the site would create conflict point. This matter was required by Condition 1(f)(ii) of the Permit and is not sought to be amended. I record that I remain firmly of the view that a pathway in this location is desirable.
3. Second, Mr Connor was critical of the layout of the child care centre with respect to several external play areas. As he highlighted, the licensing requirements through the Department of Human Services will deal with detailed matters when considering a license for a facility. I am not persuaded there are fundamental flaws in the design that should cause the proposal to fail at this point in the process.
4. Third, I note the Revision J plans do not address all of the changes required by Condition 1 as discussed at the hearing. Notable is that Condition 1(f) is not provided for although it was included on plans endorsed by the Council on 15 October 2008.[9] It is appropriate to maintain the requirement for feature fencing in accordance with Condition 1(f) and it would also be appropriate to maintain a condition with respect to materials and finishes when new plans are endorsed.
5. I will replace Condition 1 with a new Condition that refers to the Revision J plans but requires modifications to the plans to provide for the fencing/landscaping treatment along the eastern boundary and a schedule of materials and finishes. Other changes required by Condition 1 of the Permit are provided for on the Revision J plans and thus those parts in Condition 1 do not need to be retained. However, none of the notations on the plans should be deleted and this is a matter to which the Council will need to be mindful when endorsing a revised set of plans.
6. Finally, it was also pointed out to me at the hearing by Mr Connor that the Permit issued by the Council at my direction only refers to use and not development in the description of what the permit allows. This is an error as my order of 27 May 2008 and Appendix 1 to that order makes clear that a permit was granted for "the use and development of the land for a child care centre in accordance with the endorsed plans" [emphasis added]. The Council should correct this mistake in issuing an amended permit in accordance with my order in the current proceeding.

1. For the above reasons, I will allow the Application and will direct amendments to Permit No. PL07/018145.

[1] Application for Review No. 1947/2008.

[2] 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 [Tribunal on review].

[3] Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 860 at paragraph 14.

[4] BAMFA Properties v Manningham CC [2008] VCAT 364 at paragraphs 44 and 45.

[5] BAMFA Properties v Manningham CC [2008] VCAT 925 notably paragraphs 12-14.

[6] BAMFA Properties v Manningham CC [2008] VCAT 364 at paragraph 35.

[8] This point is referred to in paragraph 8 and footnote 1 of BAMFA Properties v Manningham CC [2008] VCAT 925.

[9] The endorsed plans do not comply with Condition 1(b) because only seven spaces are shown along the northern part of the site not eight as required by the condition. I note the endorsed plans include a materials and finishes schedule but I am seeking for a new schedule to be endorsed as part of the new Condition 1 so that all documents are linked through this amended Permit.