The order of the Tribunal is that the decision of the Responsible Authority is set aside.

A permit is granted for the use of the land at 13 Old Diamond Creek Road, Diamond Creek as a Child Care Centre, the removal of vegetation and the erection and display of signage, generally in accordance with the endorsed plans and subject to the following conditions:-

1. Before the use or development commences, amended plans to the satisfaction of the Responsible Auth must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided.

The plans must be generally in accordance with the plans substituted by the Victorian Civil and Adminstrative Tribunal at the hearing commencing on 21 July, 2004, but modified to show:

a) The driveway be widened to 5.5 metres wide at the fenceline with appropriate flaring to the pavement edge on Old Diamond Creek Road;

b) The layout of access and parking on the site be modifeid in accordance with the findings of the Traffic Engineering Assessment report (specifically page 6 of the report) undertaken by TTM Consulting Pty Ltd (dated 28 January 2004). All site plans submitted (including the Land Management Plan) must reflect the amended layout for access and parking;

c) The deletion of any reference regarding effluent disposal areas and a notation that the development will be connected to sewer;

d) The notation of the rear (northern) third of the land as being fenced off and allowed to revegetate.

e) The Landscape Plan amended to include the following:

i) Planting schedule detailing indigenous species of local provenance appropriate to the site, particularly in the northern and eastern extens of the site;

iii) Details and cross-sections on the retaining walls and/or batter treatment to all aras of the site;

iv) Tree Protection Zones and Tree Protection Fencing for trees proposed to be retained.

f) The removal of the signage proposed to be located at the front of Old Diamond Creek Road.

g) A schedule of colours and materials for the proposed buidling extension. The colours and materials must be subdued, non-reflecive and sympathetic to the natural environment.

i) Fencing to the satiafaction of the responsible authority.

Such plans shall be to the satisfaction of the responsible authority and when approved shall be endorsed and form part of this permit.

2. The layout of the use and the development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3. The maximum number of children in care at any one time for the child care centre shall not exceed 90, unless otherwise approved by the Responsible Authority in writing.

4. The maximum number of staff for the child care centre presenton the site at any one time shall not exceed 13, unless otherwise approved by the Responsible Authority in writing.

5. The child care centre may operate only between the hours of 7.00 am and 7.00 pm Monday to Friday, unless otherwise approved by the Responsible Authority in writing.

6. Before the use commences, areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plan(s). The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the the Responsible Authority.

7. Vehicular access and egress to the subject land from the roadway must be by way of a 5.5 metre wide vehicle crossing constructed to the requirements of the responsible authority to match the width of the access lane noted above and to provide two way vehicles movement that will use the crossing. The responsible authority must approve the location, design and construction of the crossing.

8. The use and development hereby permitted shall not cause any nuisance or loss of amenity in any adjacent or nearby land by reason of the discharge of drainage. Stormwater is to be absorbed on-site, generally in accordance with the Shire of Nillumbik's "Drainage to Unserviced Allotments" document, or otherwise to the satisfaction of the Responsible Authority.

9. Landscaping and planting of the subject land shall be carried out and maintained thereafter to the satisfaction of the Responsible Authority in accordance with the endrosed Landscape Plan. Planting shall be completed within 6 months of the practical completion of the buildings and works hereby approved to the satisfaction of the Responsible Authority.

10. Before the development commences, trees marked on the plan as being retained must have a Tree Protection Zone defined on a plan to the satisfaction of the Responsible Authority. Unless works have already been shown on endorsed plans within the periphery, the zone for each tree shall be marked to extend to at least around the periphery of the foliage canopy to include the drip line of each tree. If works are shown on the endorsed plan within the periphery, then the tree protection zone must be taken in to only the minimum amount necessary to allow the works to be completed. In addition the fencing must be shown as being erected to a minimum height of 1.5 metres and including signage clearly marked 'tree protection zone - no entry' on all sides.

11. Before the development commences the tree protection fencing must be erected to the satisfaction of the Responsible Authority.

12. Once erected the fences must be maintained in good condition to the satisfaction of the Responsible Authority and may only be removed upon completion of all development works.

13. The following actions may NOT be undertaken in any tree protection zone as identified on the endorsed plan to satisfaction of the Responsible Authority:

* no materials or equipment may be stored within the zone.

* nothing is to be attached to any tree (including temporary service wires, nails, screws or any other fixing device).

* no open cut trenching or excavation works (whether or not for laying of services) may be undertaken within the zone.

* no changes shall be made to the soil grade level within the zone.

14. All contractors working at the site must be instructed by the site supervisor of the reasonsn for the Tree Protection Zone and associated conditions.

15. Prior to the commencement of the use and development hereby permitted, the owner of the land shall enter into and comply with an agreement with Yarra Valley Water for the provision of sewerage.

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

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

* The development is not commenced within two years of the date of this permit;

* The development is not completed within four years of the date of this permit;

* The use is not commenced within four years of the date of this permit.

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

18. Before the development starts a Management Plan for the operation of the Child Care Centre, to the satisfaction of the Responsible Authority, must be submitted and approved by Responsible Authority. When approved the Management Plan will be endorsed and then form part of the permit. A copy of this Permit must be included as a Schedule to the Management Plan. Three copies must be provided. The ManagementPlan must provide for:

(a) The number of children allowed to be located within any of the external play areas at any time, including the exclusion of children from the northern section of the site which is to fenced off and allowed to revegetate.

(b) The staff to children ratio required to be present during supervision of children in the outdoor play areas to comply with the Children Services Regulations 1998, and otherwise to be not less than one staff member per 15 children at any one time.

(c) The Management Plan being amended from time to time with the approval of the Responsible Authority, following consultation with residents of abutting properties.

19. Before the development starts a Vegetation Management Plan to the satisfaction of the Responsible Authority, must be submitted to and approved by Responsible Authority. When approved the Vegetation Management Plan will be endorsed and then form part of the permit. A copy of this Permit must be included as a Schedule to the Management Plan. Three copies must be provided. The ManagementPlan must provide for the implentation of the recommendations contained in the evidence of Mr S Cook and Mr R Greenwood presented to the Victorian Civil and Administrative Tribunal at the hearing on 12 July, 2004.

The implementation of the management plan and the ongoing maintenance of the vegetation on the site must be carried out to the satisfaction of the responsible authority.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr S Caldwell, town planner appeared on the first two days of the hearing and Mr J Livingston, town planner, appeared on the third day.

Ms S Brennan of counsel appeared on behalf of T Bruwer, F Moretti and B Skiffington, C Demiris, C & G Tripney, D & S Herbert, C & C Kalogirou.

Mr S Neofitou, town planner, appeared on behalf of M & F Lennox.

1 This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a permit application for the use of the land at 13 Old Diamond Creek Road, Diamond Creek as a Child Care Centre, the removal of vegetation and the erection and display of signage. The Responsible Authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:

2. The environmental values of the site will be detrimentally compromised by the proposed use and development.

3. The proposed use is contrary to the purpose and decision guidelines of the low density residential zone.

4. The proposal is contrary to the objectives and decision guidelines of the Environmental Significance Overlay - Schedule 1.

5. The proposal is contrary to the direction of the Council's Municipal Strategic Statement.

6. The proposal is contrary to the objectives of the State Planning Policy Framework.

2 During the course of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, Mr Scally requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application.

3 Copies of the revised plans had been circulated to parties attached to a witness statement, rather than in accordance with the Tribunal's practice direction for the amendment and substitution of plans. It is apparent that the evidence of the witnesses relied upon by the applicant had been prepared on the basis of the revised plans.

4 The changes to the plans included the reduction in the size of the eastern car park, the location of a new car park in the front setback of the existing building on the site, and the adoption of a different planting schedule in the landscape plan. I made the amendment in the manner requested but in view of the fact that the amended plans had some implications for the extent of vegetation removal, and in response to an objection from Ms Brennan, Mr Neofitou and Mr Caldwell, I granted leave for the parties to seek further advice on the vegetation removal implications of the amended plans. The hearing proceeded on the basis that submissions and town planning and traffic evidence would be presented on the first two days of the hearing, and the evidence relating to environmental issues, including vegetation removal issues, would be heard at a reconvened hearing.

5 It is proposed to use the site for the purpose of a child care centre catering for up to 90 children. The existing dwelling on the land will be extended but will remain single storey. Two car parking areas are proposed to be provided. One car park providing 10 parking spaces is proposed to be located near the eastern boundary of the site and is intended to be used by parents dropping off and picking up children. A second car park providing 8 spaces is proposed between the front property boundary and the existing dwelling and is intended to be made available for staff.

6 A number of outbuildings currently located on the eastern part of the site are proposed to be removed.

7 A total of 13 staff are proposed and the intended hours of operation are 7.00 am to 7.00 pm.

8 A total of 37 trees are designated for removal. The submitted landscaping plan provides for the planting of 97 "tall trees" and a total of 790 new plants.

9 Two signs are also proposed to be erected and displayed. One sign (2.08 metres x 1.05 metres) is proposed near the south east corner of the site, facing Old diamond Creek Road. The second sign (1.4 metres x 1.2 metres) will face Diamond Creek Road and is to be located near the north west corner of the site.

10 Mr Caldwell provided the following description of the review site and its environs which I adopt;

The site is located on the north side of Old Diamond Creek Road. The rear of the site backs onto the Diamond Creek Road reservation. The site is irregular in shape, has an area of 4,175 square metres and generally falls from south (front) to the north (rear). The site has a frontage to Old Diamond Creek Road of approximately 73 metres

The site contains a single storey brick dwelling, setback approximately 16 metres from the Old Diamond Creek Road frontage. The site has two existing crossovers and driveways. The one to the west side of the frontage provides vehicular access to an existing carport. The second one, which is at the east side of the frontage provides vehicular access to the existing double garage which adjoins the dwelling. The site contains two sheds and one large machinery shed, all located to the east side of the dwelling.

A 9-hole mini golf course is located in the north-western corner of the site. A chain wire fence separates the putting green area from the rest of the site. The side and rear title boundaries have post and wire fencing. The frontage along Old Diamond Creek Road has a picket fence.

The whole of the site is reasonably well vegetated, consisting mainly of mature Eucalyptus (including Red Box, Red Stringybark, and Long Leaf Box), providing for an attractive bushland setting.

Directly adjoining the site to the west is a small Council owned environmental reserve. Bordering the site to the north is vegetation in the Diamond Creek Road reserve. Both of these areas contain good quality remnant vegetation.

The land to the east of the subject site contains low density residential development similar to the subject site. In general, the lots are developed with single dwellings which are surrounded by gardens vegetated with a mixture of medium sized native trees, shrubs, weeds, and slashed grass. The relatively generous side setbacks, significant amounts vegetation and relatively low density of development on the lots affords them a quiet and leafy ambiance which approaches the semi-rural in nature.

This is despite of the occasional and somewhat subdued drone of vehicular traffic along Diamond Creek Road to the north of the lots. This occasional drone is certainly audible in the rear yards of the lots, but not at their frontage to Old Diamond Creek Road. It seems likely that the noise would not be readily noticeable indoors.

The land to the south of Old Diamond Creek Road is zoned Residential 1 and most of it has recently been subdivided provided for conventional residential allotments. The land to the north of the subject site (north side of Diamond Creek Road) is zoned Environmental Rural Zone - Schedule 3. This area contains large sized allotments generally used for rural type uses and hobby farms.

11 The review site is zoned Low Density Residential under the Nillumbik Planning Scheme. The purpose of the zone is;

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

To provide for low-density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all wastewater.

12 A child care center is an unspecified section 2, permit required use in the zone.

13 A permit is required under clause 32.01-4 to construct or carry out buildings or works associated with a section 2 use.

14 There are no decision guidelines specified in the zone relevant to the consideration of an application to use land or to construct or carry out works.

15 Advertising controls are at clause 52.05. The Low Density Residential Zone is in category 3, high amenity areas, at clause 52.05-9. The proposed signs require a permit and the purpose of the clause is;

To ensure that signs in high-amenity areas are orderly, of good design and do not detract from the appearance of the building on which a sign is displayed or the surrounding area.

17 The site is also affected by an Environmental Significance Overlay Schedule 1 (ESO1). The purpose of the overlay is to identify areas where development of land maybe affected by environmental constraints and to ensure that development is compatible with identified environmental values. The Statement of Environmental Significance in the schedule to the overlay is;

Much of the Shire is heavily vegetated and supports a diverse range of native fauna and flora. Some species are listed under the Flora and Fauna Guarantee Act. There are specific sites occurring on both private and public land that have been identified as being of particular importance within the Sites of Faunal and Habitat Significance in North East Melbourne (Beardsell 1997). Identification, protection and enhancement of the environmentally significant sites and strengthening of connecting habitat links will assist in the maintenance of biodiversity within the Shire and surrounding areas.

18 The Environmental objectives to be achieved are;

To protect and enhance sites of faunal and habitat significance identified in (Beardsell 1997) Sites of Faunal and Habitat Significance in North East Melbourne.

To protect and enhance regional and strategic habitat links identified in (Beardsell 1997) Sites of Faunal and Habitat Significance in North East Melbourne.

19 A permit is required to construct a building and to construct or carry out works, and to remove, lop or destroy vegetation. Under the schedule to the overlay the responsible authority must consider as appropriate the following;

The effect of the proposed subdivision, building or works on the identified faunal and habitat values of the land.

The role of native vegetation in contributing to faunal and habitat value.

The need to protect native vegetation that forms part of a habitat link.

The need to protect native vegetation that contributes to soil stability and water quality.

The need to require the establishment/maintenance of native vegetation elsewhere on the land.

How the design and materials used for a building or works may affect the movement of fauna.

Management objectives for the site as detailed in (Beardsell 1997) Sites of Faunal and Habitat Significance in North East Melbourne.

Whether the subdivision or development is located in, or may impact on, an Ecological Reference Area or a Critical Conservation Area.

Whether the subdivision or development will have an impact on the identified faunal habitat values of the site, and the degree and extent of that impact.

Conditions that should be applied to avoid or mitigate potential impacts of the subdivision.

20 A Wild Fire Management Overlay also applies to the site however and a permit is required under the overlay to construct a building and to construct or carry out works. An application must be referred to the Country Fire Authority. I was advised however that it is intended to remove the overlay from this locality pursuant to Amendment C11 to the Nillumbik Planning Scheme. No issues of relevance to the overlay were raised during the hearing.

21 Both Mr Caldwell in his submission and Mr Trickey who was called to give evidence by the applicant, provided me with a detailed summary of the applicable policy framework, as it applies to the consideration of this application, and it is not necessary for me to repeat that material here. In broad terms the most relevant aspects of the policy framework emphasizes the conservation of native flora and fauna and the need to ensure that the integrity of streetscapes and natural landscapes are protected from the adverse impacts of inappropriate uses and developments. The Low Density Residential zones is to be applied to existing low density residential areas to protect the character of those areas and to establish a transition between the areas of more intensive urban development and rural areas. The Neighbourhood Character Policy at clause 22.12 seeks to ensure that developments respect local community and environmental values. The policy divides the municipality into precincts and the review site is located within a "Rural Precinct" the key characteristics of which are described as follows;

Generally unsealed roads, no footpath or kerb treatments.

Strong canopy trees along roadside, natives and some exotics (eg. pines).

Significant native and indigenous vegetation, with some exotics, and substantial trees occurring at a density of for every 50m 2 -100m 2 .

22 The statement of desired character emphasizes the encouragement of development which nestles into the environment with minimal disturbance to land form.

23 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. I inspected the subject site and its locality unaccompanied by the parties.

24 Ms Brennan called Mr S Muek, botanist of Biosis Research, to give evidence. Mr Muek presented a written report and gave oral evidence, and was made available for cross examination.

25 Mr Scally called Mr L Trickey, town planner of Maunsell Australia Pty Ltd, Mr M O'Brien, traffic engineer of TTM Consulting Pty Ltd, Mr R Greenwood Horticulturalist of Greenwood Consulting, and Mr s Cook, zoologist, to give evidence. Each witness presented a written report and gave oral evidence and was made available for cross examination.

26 The grounds of the Council's opposition to this application were best summarized by Mr Caldwell in his written submission when he said that;

Council believes that the clear intent of the planning controls applicable to the site is the preservation of the land for low density use complimentary to the specific environmental attributes of the land and the distinctive character of lots on the northern side of Old Diamond Creek Road. Council does not believe that a relatively intensive child care use of the land is consistent with this intent, and this view appears to be supported by objector parties.

27 In support of the submission that the Low Density Residential zone is not a suitable location for a child care center, both the Council and the objectors placed considerable emphasis on a comparison between the purposes of the Low Density Residential zone with that of the Residential 1 zone. The purpose of the Low Density Residential zone has been outlined previously and it is clear that the zone is intended to provide for a density of development which, in the absence of reticulated sewerage, can treat and retain all wastewater on each lot. In contrast the purpose of the Residential 1 zone is;

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

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

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

28 It was Ms Brennan's submission that the distinction that can be drawn between the purposes of the two zones is significant because they point to the achievement of very different land use and development outcomes, and therefore amenity and neighbourhood character outcomes for each zone. Ms Brennan said;

The differences between the Residential 1 and Low Density Residential zones extend beyond the range of permitted uses ......the purpose of the zone is materially different, the Low Density zone contemplates lot sizes of a sufficient size to treat and retain waste water, the lot size in the Low Density Residential zone is at least 0.4 hectare, and the guidelines in relation to subdivision of land are significantly more detailed in the Low Density Residential zone. One of the consequences of these variations is the influence on neighbourhood character associated with larger lots; that is, land in Low Density Residential zones exhibits larger lots, often with more trees, where dwellings and outbuildings are secondary to the natural landscape, creating a semi rural feel. The residents object outright to the assertion that the only difference between their land and a conventional residential subdivision is that reticulated sewerage need not be provided to their lots.

29 Ms Brennan then reviewed a number of Tribunal decisions on child care centers and advised that no reported decisions related to child care centers in the Low Density Residential zone. Ms Brennan acknowledged that the Tribunal had over many years consistently held that child care centers are an appropriate use in a residential zone subject to the use being appropriately located. It was Ms Brennan's submission that this general statement of principle only applies in residential areas where the zone purpose explicitly supports this and that the application of this principle should be limited to conventional residential zones such as Residential 1, Mixed Use and Township.

30 The proposed use is a use for which a permit maybe granted in this zone and it seems to me that if the Council's and the objector's submissions are correct, there would be little point in including any section 2, permit required uses in the table to clause 32.03-1. The fact that the purpose of the Low Density Residential zone does not make any reference to non residential uses in the same way that the Residential 1 zone does, cannot be interpreted to mean that the planning scheme does not contemplate non residential uses from locating in this zone. The purpose of the zone is in fact quite clear, and that is it is intended to be applied in circumstances where reticulated sewerage is not available and larger than conventional lots are required to treat and retain wastewater on each lot. Beyond that, the zone provides for a wide range of uses other than residential, for which a permit can be granted and the zone purpose neither encourages nor discourages these uses in the zone.

31 There are many very good reasons which underpin the long established principle that child care centers are appropriately located in residential areas, not the least of which is that, notwithstanding the commercial basis of their operation, they provide a community service and it can be expected that the need for them is generated by at least some of the residents of the locality within which the center is located. That child care centers are the type of use which can also make a contribution to developing a community's sense of belonging has also been recognized by the Tribunal. In Zammit v Shire of Melton and Libella Dion Pty Ltd (1993/28050) the Tribunal found that;

.......It does not seem appropriate to expect that all of the community facilities which may be required by the population in this newly developing suburb will be provided only in the centers nominated in the structure plan, particularly given the distances between such centers. There would seem to be opportunities for limited local facilities to be established which would contribute to developing a sense of belonging to a local area because of their ready accessibility. A child minding center would seem to be one such facility which could make that sort of contribution.

32 I can see no reason why the benefits to the community as a whole of locating child care centers in residential areas ought to be limited to residential areas zoned Residential 1 and excluded from residential areas zoned Low Density Residential.

33 I agree with the Council and the objectors to the extent that in the Low Density Residential zone, larger than conventional lot sizes will inevitably influence and define the character and amenity of a locality and the appropriateness of a child care center use must be assessed in terms of its impact on that amenity and character. My view in this respect is consistent with another of the Tribunal's consistent and long held principles that the appropriateness of a site's location is paramount in determining whether or not a permit ought to be granted.

34 In forming my view that the proposal is appropriate to the site and the locality, I think it is significant that the Low Density Residential zone within which the review site is located, comprises a relatively narrow strip of land located between a developing, conventional residential subdivision on the south side of Old Diamond Creek Road and a rural area to the north, beyond Diamond Creek Road which runs along the rear boundary of the Low Density Residential zone. In terms of defining the character of the area, the Council and the objectors placed greater emphasis on the rural area to the north and the role the review site plays as part of a buffer between the rural and the urban . Mr Scally on the other hand, placed more emphasis on the site's interface with the residential subdivision to the south in support of his submission that the proposed use and development is an appropriate response to the character of the area.

35 The site clearly has an interface with two distinct areas but the influence of the developing residential area directly to the south on the character of the review site cannot be underestimated. The significance of this influence is that it reinforces my view that the review site is located in an area which is increasingly residential in character and I think that its inclusion in the Rural Precinct under clause 22.12 does not, or at least no longer accurately reflects the character of this locality.

36 I am also satisfied that the amenity impacts of the proposed use are capable of being adequately managed and contained within acceptable limits. From the objector's perspective, the principal amenity impact is that of noise generated by both the external play areas and the car park located on the eastern side of the site.

37 Ms Brennan again referred me to a number of Tribunal decisions in which the issue of noise of children playing has been addressed and it was correctly noted that the Tribunal has consistently held that any adverse impact is a necessary trade off for the provision of community facilities. Ms Brennan regarded this as a reasonable proposition in conventional residential areas where the zone purpose encourage such uses but it is not reasonable in the circumstances of this site where the uses are not encouraged and where higher standards of amenity ought to prevail.

38 I have dealt with the issue of the zone purposes above. With respect to the submission that higher amenity standards ought to apply in this location than those which apply in a conventional residential area, I agree with Mr Scally that as a consequence of the larger lot sizes existing in this locality, the amenity impacts arising from the use are better able to be absorbed on site than they on smaller lots in conventional, higher density residential areas. It is significant that all of the decisions of the Tribunal referred to me by Ms Brennan which have held that noise impacts of child care centers are acceptable in residential areas, have related to sites in Residential 1 zones where there are likely to be more direct and sensitive interfaces between neighbours than that which applies in this site context.

39 The review site has one direct interface with a neighbouring residential property to the east, and I am satisfied that the review site is sufficiently large to enable the main external play areas to be located away from the eastern boundary so as to minimize the neighbouring property's exposure to noise impacts. I accept Mr Scally's submission that a management plan would also be useful in preventing children's access to the north eastern section of the site, an area in which revegetation is to be encouraged. Other plays areas on the site are sufficiently removed from any sensitive interfaces so as not to create any unacceptable disturbance.

40 The fact that the review site has only one abuttal to a neighbouring residence is of some significance in itself in forming my view that the site is an appropriate location for the intended use.

41 I am also satisfied that adequate car parking is capable of being provided on site to accommodate both staff and parents dropping off and picking up children. I accept Mr O'Brien's evidence on this matter. It is significant that because of the area of the review site, off street car parking for eighteen vehicles are capable of being provided, a circumstance which is difficult to achieve on a site in a conventional residential area and where greater reliance must inevitably be placed on on street parking. Part of the car parking is proposed on the eastern part of the site (10 spaces) but it is set back some five metres from the boundary and is separated from that boundary by existing planting which is to be enhanced by additional planting. In this context and also having regard to the use of that car park which will be used by parents dropping off and picking up children in the mornings and evening, I do not think that acoustic fencing is necessary to contain the amenity impacts of the car park to acceptable levels.

42 It is now necessary for me to consider the environmental effects of the proposed use and development.

43 The Council's and objector's concerns in this respect relate to the extent of tree removal, the failure of the applicant's to minimize removal, and the prospect that additional tree removal beyond that currently applied for will be required.

44 I was assisted in my deliberations on this matter by the evidence of Mr Cook and Mr Greenwood. Mr Cook assessed the fauna and faunal significance of the site as being degraded and of low fauna value. It was Mr Cook's evidence that;

The subject site does not form part of a Regional Habitat Link as identified by Beardsell (1997). This is largely due to the lack of significant vegetation remnants to the west of the site

........the habitat remaining on the subject site is degraded and of low faunal value. This is demonstrated by the high ratio of introduced faunal species present on the site during the site visit.........This high proportion of exotic species compared to the surrounding area is indicative of a highly modified and low quality habitat for native fauna.

The planned development leaves what remains of the original habitat largely intact, and with replacement of the ground and understorey layers and a weed control program administered under net gain (i.e clause 19, Nillumbik Planning Scheme), there should be an increase in the habitat value of the subject site and the adjacent woodland for native fauna species.

45 Mr Cook went on to identify a number of actions and management practices which if implemented as part of net gain strategy for the site will increase its habitat value and ".....assist to some extent in preventing some of the potential deleterious impacts of local gardens on the adjoining bushlands outlined by Beardsell."

46 Mr Greenwood undertook an assessment of the impact of the removal of the 37 trees and of the compensatory benefits to be derived from the proposed new plantings and site management practices, and concluded that;

Without external intervention the existing woodland will continue to degrade and within approximately 25 years very little of the existing woodland will remain.

While it is proposed to remove 37 trees from the site these will be more than replaced by the new plantings of species specific to the local plant community. Furthermore it is possible that some tree removal may be required to allow the regeneration of understorey plantings.

The proposed development will, while resulting in the loss of a small proportion of the area available for revegetation, offer the opportunity for a significant Net Gain in the quality of the locally indigenous vegetation on this site.

The proposed development will reduce the spread of weed species into the surrounding areas.

All of the appropriate Net Gain criteria for this site have been met or exceeded.

47 Mr Greenwood's net gain assessment was criticized by Mr Muek primarily on the basis that it did not follow adopted procedures for calculating net gain, and the proposal failed to achieve a net gain outcome because it did not minimize the loss of vegetation. Mr Muek also ascribed to this site a higher degree of fauna and faunal significance than either Mr Cook or Mr Greenwood, on the basis of the site's inclusion in the ESO which is based on the Beardsell (NEROC) study.

48 I did not find Mr Muek's evidence to be of any great assistance to me. He had not undertaken an assessment of the site as Mr Cook and Mr Greenwood had done and his evidence amounted to little more than a conclusion that any removal of vegetation from a site covered by the ESO is in conflict with the ESO and could not achieve a net gain outcome.

49 On the basis of the evidence of Mr Cook and Mr Greenwood, which I prefer to that of Mr Muek, I am satisfied that the implementation of the landscape treatment, replanting regime and site management practices recommended by them will achieve outcomes which are consistent with those sought to be achieved by the ESO and will contribute to an improvement in the fauna and faunal values of this degraded site.

50 I received submissions to the effect that the use of the land for a child care center is inappropriate on a site covered by an ESO because the intensity of the use and the need for vegetation removal leads to adverse environmental effects which would not otherwise arise if the land was put to a less intensive use. It follows from my findings outlined above that I do not agree with these submissions. The degraded condition of this site has occurred during a period in which it has been used for residential purposes (a single dwelling) and I think there is some merit in Mr Scally's submission that the continued use of the land for such purpose provides no impetus for the implementation of the actions recommended by Mr Cook and Mr Greenwood which are needed to improve the condition of the site. The grant of a permit for the proposed use does provide the opportunity for the imposition of conditions requiring the recommended works to be carried out.

51 Concern was also expressed about the size and location of the proposed signage. In my view the sign facing Old diamond Creek road is appropriate in terms of identifying the site and the use, but I do not think the sign facing Diamond Creek Road is necessary for that purpose. I have imposed a condition requiring that sign to be removed.

52 With respect to permit conditions, I granted leave to the parties to make submissions on the draft conditions and I received submissions from the Council and the objectors. I have considered these submissions in preparing the conditions included in the Order.

53 The decision of the responsible authority is set aside and it is directed that a permit issue in accordance with the attached Order.