Bijan Makhmalbaf v Monash CC & Ors [2001] VCAT 965

1. This was an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the City of Monash to refuse to grant a permit (in Application No 27092) to extend the building at 420-422 High Street Road, Mount Waverley and expand its use as a Child Care Centre.

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"), Ms McKenzie requested the Tribunal to amend the application for permit by substituting revised plans for those which originally accompanied the application.

3. Copies of the revised plans had been forwarded to all parties under cover of a letter dated 4 April 2001 detailing the changes and foreshadowing the intention to seek approval for their substitution.

4. Ms McKenzie briefly outlined the nature and extent of the changes. These include an increase in the setback of the building from the rear boundary and minor internal changes.

5. There was no objection to the substitution of these plans. Being also of the opinion that such substitution was appropriate I made the amendment in the manner requested.

6. The subject site is located on the south side of High Street Road east of Stephensons Road. It has frontage of 42.88m and a depth of 42.67 m, yielding a site area of approximately 1740m2.

7. The site rises from the frontage and then has a significant slope to the rear. There is also a slope across the site. The land is developed with a single level purpose built child minding centre. It commences 10.25m from the frontage, 6m from the eastern boundary, 13m from the western boundary and 10.32m from the rear boundary. Outdoor play areas are located at the front, rear and within the eastern boundary. Car parking spaces are provided along the western side of the building. A further drop off area is adjacent to the entry.

8. The centre (operating as "Greenland") provides care for children from babies to kindergarten age. I noticed during my inspection that it also offers school holiday programs for older children.

9. High Street Road is a major arterial road (Category 1 Zone) that has clearways on its south side (during morning) and north side (during evening). There is a narrow nature strip adjacent to the subject site. A metal barrier has been installed to protect pedestrians.

10. The subject site is within an established residential area principally developed with detached dwellings. The site has abuttals to six properties. The properties to the west (No 418) and east (No 424) have dwellings with two levels. A Home Occupation is conducted in the garage at No 424. To the rear the site abuts two residential properties with frontages to Gwynne Street. There are minor sections of abuttal to a further two Gwynne Street properties with detached dwellings. There is a large church and associated residence on the property to the east of No 424.

11. On 21 August 1996 the Responsible Authority issued a planning permit (No 22880) for a "55-place Child Minding Centre with associated car parking and landscaping". The permit contained 28 conditions. These included a requirement for amended plan, an amenity condition, the restriction of the hours of operation to 7.00am-7.00pm Monday to Friday and the maximum number of staff not to exceed 8.

12. Ms Moser advised that after building works commenced it was brought to Council's attention that development had not been carried out pursuant to the endorsed plans. In effect the building was higher at the rear than permitted. Amended plans were ultimately approved.

13. I was also alerted to the fact that the raised playground at the rear of the site and the basement area were not shown on the endorsed plans.

14. It is proposed to extend the building at the rear to provide an additional 98m2 of floor area. The building would be set back 4m from the rear boundary and 9m from the western boundary. There would be windows looking west and south. The latter are indicated as highlight windows.

15. The extended building would facilitate an increase in the existing use - from 55 child places to 90 child places. Staff working at any one time would increase from 8 to 10.

16. The hours of operation would remain as set out in the current planning permit.

17. No additional outdoor playground area is proposed.

18. A revised car parking arrangement is proposed. Instead of the current 10 spaces a total of 14 spaces would be provided. Four spaces would be provided for parents to the west of the building. Three spaces for staff would be provided at the end of the driveway (in the south west corner of the site) and a further five spaces would be provided under the building.

19. Under the Monash Planning Scheme the subject site is zoned Residential 1 and not affected by any overlay controls. Within this zone a permit is required to use land for the purpose of a Child Care Centre. A permit is also required to construct a building or carry out works for a Section 2.

20. Clause 65.01 of the Planning Scheme directs the Responsible Authority, and this Tribunal, to consider certain matters, including the matters set out at Section 60 of the Planning and Environment Act 1987, the State and Local Planning Policy Frameworks, the purpose of the zone, the orderly planning of the area and the effect on the amenity of the area.

21. The purpose of the Residential 1 zone, stated at Clause 32.01, includes:

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

22. Council's Municipal Strategic Statement ("MSS") is at Clause 21. Ms Moser highlighted the Residential Strategic Objectives but advised that there are no specific provisions concerning Child Care Centre.

23. The Council has a Discretionary Uses Policy : Residential "C" Zone (1997) which it applies to the consideration of child care centres. It is a reference document in the Planning Scheme. The relevant objectives are:

* To make provision for child minding facilities to meet the needs of the local community.

* To ensure that any activities associated with a child minding centre do not adversely affect the amenity of the neighbourhood.

* To ensure that adequate provision is made for on-site parking, and that traffic circulation is catered for in a safe and efficient manner.

Child minding centres are encouraged to establish:

- abutting a main or secondary road to ensure any additional traffic movements generated are not significant given existing traffic volumes;

- such that residential properties are not isolated between the child minding centre and land used for another discretionary use;

- abutting an existing non-residential use or zone, e.g. commercial.

25. Clause 19 of the Monash Planning Scheme does not include a specific requirement for car parking associated with a Child Care Centre. However, Council's Discretionary Uses Policy states that it is a "performance standard":

To ensure adequate on-site parking to cater for the demand from staff and visitors, thereby eliminating the need to park on-street.

26. The stated "design standard" is one car space to each full-time staff member plus one space to each 2 part-time staff members plus one pick-up/drop-off space.

27. The policy also states that "building heights should not exceed a maximum of 8 metres above ground level..."

28. The Application for Permit was lodged on 30 May 2000. Following the giving of notice of the application nine objections were received. The Objectors included all abutting property owners. Ms Moser's written submission summarised the extensive grounds of objection.

29. The planning officer's recommendation that the application be refused was adopted by the Council's delegate. A Notice of Refusal to Grant a Permit was issued on 30 October 2000, with the following grounds:

1. The proposal is an overdevelopment of the site.

2. The proposal has been designed to minimum standards and as such presents as an overdevelopment of the site.

3. The proposed development is out of character with the existing development in the area particularly with regard to mass, bulk and scale.

4. The proposed development has an adverse impact on the amenity of adjoining properties.

5. The proposed development is not appropriate for the locality in regards to its adverse impact on the streetscape and general neighbourhood character.

6. The car parking layout does not provide for satisfactory vehicle movements.

7. Inadequate provision is made for vehicles to exit the site in a forwards direction.

30. The application for review, lodged on 12 December 2000 countered the matters raised in the grounds of refusal.

31. Lawrence and Ursula Ryan, V and T Mitropoulos, Gordon Field, Bruce McRae and Judith Ridgway all advised the Tribunal that they wished to be parties to the application for review. Each lodged a Statement of Grounds. By letter dated 10 April 2001 Mr Ryan advised the Tribunal that he did nor wish to proceed with his submission. I understand that the Applicant for Review has purchased the Ryan's property (No 17 Gwynne Street).

32. There is no question that the existing and proposed extended use is a valuable community use. While the MSS and local policies do not expressly address child minding facilities I acknowledge Mrs McKenzie's submission that those documents include provisions regarding community facilities and encourage services which support families. The use sits easily within the purpose statement for the Residential 1 Zone.

33. The site meets some of the locational criteria for the use in the Council's Discretionary Uses Policy. For instance, it is adjacent to a Main Road. In theory this allows for the resulting traffic to be integrated into the existing heavy traffic flows.

34. The Grounds of Refusal and Objectors' Statements raised a broad range of matters. However, only a limited number of matters were pursued at the hearing. In particular I note that given the location of the proposed building and the slope of the land any argument about the impact on the streetscape (included in the Council's grounds) cannot be sustained.

35. Essentially there are two main issues to be considered:

* The impact of the built form and increased use on the amenity of neighbouring properties - particularly to the west.

* The adequacy of the arrangement for vehicle access and parking of parent and staff vehicles associated with the additional use.

36. My understanding of the issues was assisted by an unaccompanied inspection after the hearing of the subject site, Mrs Ridgway's property and the general area.

37. With respect to setbacks a performance standard of the Discretionary Uses Policy is to "provide adequate space for landscaping and to protect the amenity of adjoining residential properties." Unfortunately the policy fails to provide any design requirements for setbacks other than from the frontage or a side street.

38. The substituted plan proposes to diminish the existing western setback from 13.13m to 9m (over a length of 11m) and the southern setback from 10.32m to 4m (over a length of 14.13m). Prima facie such setbacks are generous. As noted by Mrs McKenzie they are greater than the minimum setbacks which would apply if the land was developed for a single dwelling or multi units.

39. However, in this instance a consideration of the adequacy of the setbacks must focus on the nature of the topography. The subject site is lower than the property to the east but at a higher level than Mrs Ridgway's property to the west and the Gwynne Street properties. It is from these lower properties that the proposed extension would be primarily visible.

40. I acknowledge that for practical reasons it is desirable to retain the existing floor level. However, due to the slope of the land this would have the effect of maximising the bulk and height of the proposed extension.

41. The existing building was originally built higher than approved. As advised by Ms Moser Council's subsequent endorsement of the variation was premised on the generous setbacks. I accept Ms Moser's submission that it is unacceptable to now "fill in these setbacks". The extended building in this location would have a significant visual impact on abutting properties.

42. The extension would have a maximum wall height of approximately 5.7m and an overall maximum height of 7.4m (to the top of the roof). Although this complies with the building height limit of 8m in the Council's policy in this context I consider that the height is excessive.

43. Mrs McKenzie argued that the height is "not too dissimilar to many buildings in the area". In particular, she cited the dwelling at No 242 and the two storey extension at the rear of Mrs Ridgway's dwelling. Mrs McKenzie also submitted that the proposal is "residential in its scale and form". She also called for a comparison with an alternative multi unit development of the site - suggesting that given the site area and Main Road abuttal up to 6 units would be likely.

44. I am not persuaded by those arguments. While the extension would have a comparable height to the rear of Mrs Ridgway's dwelling it would not have a comparable appearance. I accept Ms Moser's submission that any two storey dwelling on the subject site would not be so extensive. Furthermore, if a building of the type proposed was, hypothetically, part of a multi unit development it would most likely be considered unacceptable in terms of height, bulk and lack of articulation.

45. In effect the Applicants have quashed objections with respect to the impact on No 17 Gwynne Street. In any event I note that substantial planting at the rear of that site largely screens views. Although not emphasised at the hearing I note that the southern elevation of the extension would be clearly visible from a number of north facing windows at the rear of the dwelling at No 19 Gwynne Avenue. Although there would be a good separation I consider that the building would have a particularly bland and bulky appearance from that outlook. Despite the proposed setback from the western boundary I accept Mrs Ridgway's submission that the extension would be a dominating element in the outlook from her kitchen, casual dining area and bedroom, as well as from the patio and back garden.

46. There is no planting within the southern boundary of the subject site and, as noted by Ms Moser, the landscaping along the western boundary has "been let go". Mrs McKenzie conceded that the landscaping needs attention and suggested that bare areas within the western boundary need planting. Ms Moser also highlighted the prospect of planting across the width of the southern boundary. Additional planting and maintenance could be the subject of permit conditions and would assist in screening the proposed development from neighbours. However, the lack of attention to this factor in the past does not engender confidence about a satisfactory outcome.

47. Ironically Mrs Ridgway has an "advantage" in having lived with the existing centre. I appreciate that her submissions with respect to the off-site impacts of the use are based on real experience. In particular Mrs Ridgway referred to the noise created by cars entering and leaving the centre. From 7am (with some staff arriving earlier) until 9am there is engine noise, banging doors, horns and the "beeping" of reversing trucks. There is intermittent noise during the day and then another peak for pick-ups between 3pm-6pm. The parking and access way is close to the bedrooms and living areas on the eastern side of Mrs Ridgway's dwelling. I accept that the "acoustic fence" required by the original permit does little to reduce the noise. It is just a thick paling fence.

48. I accept Mrs Ridgway's submission that the proposed increased use (from 55 children to 90 children) will "substantially exacerbate" these noises. The proposal amounts to an increase of nearly 64%. Even allowing for siblings delivered and picked up together a significant increase in vehicles would be involved. Unfortunately the noises associated with vehicles are concentrated in an area adjacent to Mrs Ridgway's dwelling. I consider that the proposed intensification of the use has the potential to lead to a level of noise which is more than a matter of "irritation" and amounts to an unreasonable level of noise which would substantially affect the enjoyment of Mrs Ridgway's property.

49. The car volumes would be significantly higher than those associated with any other residential use (including a multi unit development). Although vehicles would not use the site late at night or at weekends the intensive use at concentrated times (especially during the morning peak) is a feature not normally associated with residential uses. Mrs McKenzie drew my attention to the home occupation at No 242 with its parking on a large forecourt. While I have no detailed evidence about the conduct of that business I do not believe it is in any way comparable to the child care centre. Nor did I hear evidence about the church to the east, particularly its arrangement for parking. While it might generate intensive traffic at certain times it was not suggested that it relies on parking as close to neighbouring dwellings as the proposal I am considering.

50. Less concern was expressed about the noise likely to result from other aspects of the proposed use. Noise from inside the building was not mentioned. Although no additional playground area is proposed the use of the existing playgrounds would obviously intensify. This impact is more relevant to the neighbours to the south and east. I heard no detailed submissions on whether the increased playground use would be noticeable or detrimental.

51. On the matter of overlooking Mrs Ridgway submitted that due to the separation she now tolerates the overlooking from the kitchen window of the centre. However, she submitted that the two large windows proposed on the western elevation would unreasonably increase the ability to overlook her property.

52. The proposed windows are associated with a playroom and are 9m from the common boundary. Applying standards relevant to medium density housing the setback of the windows is probably acceptable. In any event the Applicant has indicated that the windows could be opaque to a height of 1.6m above floor level to prevent overlooking.

53. There was agreement between the parties that it is essential that vehicles associated with the use must be fully accommodated on the site. Although there is no prohibition for kerbside parking on High Street Road at some times Mrs McKenzie conceded that it was inappropriate to rely on it, especially as children are involved.

54. A total of 14 on-site spaces are proposed. This is 4 more than currently provided. Ms Moser submitted that this number accords with the relevant provision of the Council's Discretionary Uses Policy but argued that their location is not acceptable.

55. I note at the outset that in this instance it is inappropriate to be guided by the Council's policy. It only requires staff parking and one pick-up/drop-off space. It obviously assumes at least partial reliance by parents on on-street spaces. As highlighted by Mrs McKenzie this is an apparent flaw in the policy. It encourages centres to abut Main Roads yet requires only one off-street drop-off/pick-up car space.

56. While the proposal exceeds the policy requirement for just one pick-up/drop-off space (by providing four spaces and the driveway space adjacent to the entry) the extra provision is essential in this case.

57. Mrs McKenzie provided data supplied by the Applicant on the percentage of children dropped off in hourly intervals during the morning and applied these percentages to the proposed increased numbers of children. This suggested that 18 children would be dropped off between 7am-8am, 32 between 8am-9am and 40 after 9am. She also advised of surveys undertaken by Grogan Richards for a centre in Boroondara indicating that the time of stay when dropping off or collecting a child was 5-8 minutes. Mrs McKenzie submitted that the application of this data indicated that between 2 and 4 spaces would be required for use by parents dropping off or collecting children at the extended centre.

58. She highlighted that 6 spaces could be dedicated for parent use - 4 along the side of the building and 2 within the driveway area.

59. Reliance on such survey data is problematic. It obviously makes certain assumptions about consistent behaviour and cannot account for unusual events. I note, for instance, that during my inspection of the site at certain times there were 4 parents collecting children although Mrs McKenzie's model suggests that the current use generates a need for 1 to 3 spaces.

60. Ms Moser submitted that the current parking arrangement is straightforward - the spaces are easily accessible and obvious. However, during my inspection 2 vehicles parked so as to block the driveway section closest to the entry and one vehicle parked in the main driveway blocking all access to and from the rear of the site. There is currently no attempt to manage the use of the car parking area.

61. I accept that in theory the provision of six dedicated spaces for parents close to the entry could be adequate in number and would be sensibly located. However, in the light of my inspection of the existing arrangement I have serious reservations about whether the increased traffic as a result of the proposal (again, in the order of a 64% increase) could be catered for in a practical sense.

62. It is sensible that staff spaces be located to the rear of the site. However, Ms Moser provided a detailed critique of the layout of the car spaces proposed at the rear of the site and under the building. She concluded that the arrangement would be unworkable. I appreciate the details of her analysis but am prepared to accept that with some modifications the spaces for staff could be acceptable, if not ideal. As noted by Mrs McKenzie staff would be familiar with the nature of the spaces and, in some cases, the "couple of manoeuvres" required to access them. Some of the spaces would only be suitable for small vehicles. The entry to what is shown as space 14 could be enlarged.

63. My inspection revealed a further problem with the arrangement for vehicle access to the site. Despite the wide crossing the entry and exit is, to say the least, challenging. This is due to the slope of the land, the speed and volume of traffic on High Street Road, the narrow nature strip and the restricted sight lines (particularly to the west where a brick wall and vegetation impede views). I also noted that vehicles slowing, or waiting to turn into the site from the west cause a significant disruption to traffic flows. I am concerned that the proposed use would lead to a significant number of extra vehicles undertaking potentially dangerous manoeuvres and interrupting traffic flows.

64. In summary I have found that a number of marginal factors combine to make the proposed development and intensification of use unacceptable. Extra vehicles would inevitably increase the noise experienced at the property to the west. The building would diminish the existing setbacks and present an unattractive and dominating façade to a number of neighbours. I have serious reservations about whether the proposed access arrangement would allow vehicles to safely and conveniently enter, leave and park on the site.

65. Accordingly I will disallow the Application for Review and make the appropriate order.