1 Before the development starts, three copies of amended plans drawn to scale and dimensioned, 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 generally in accordance with plans by CH Architects Drawing Nos. TP03, TP05-TP08 all dated 18 November 2004 and TP-04 Rev A dated 23 June 2005, but modified to show:

(a)

modifications in accordance with those described by Traffix Group in the 4th paragraph on Page 11 of their report dated 19 July 2005;

(b)

retention of the existing low fencing across the front of the site;

(c)

an acoustic fence of a height of 2.1 metres along the southern and the rear abuttals to the rear play area, and along the entire northern boundary commencing at the rear and continuing up to the front of the proposed new building, in accordance with condition 7;

(d)

the minimum distance between the building and the closest edge of any drop-off car space at 1.0 metres and surfaced for a footpath/walkway; the minimum driveway width at 3.5 metres and a minimum landscaped garden bed for the existing cypress trees at 2.0 metres;

(e)

substitution of coloured concrete with brick or similar paving to the external driveways and parking areas;

(f)

vehicular entry crossover at least 3.5 metre wide, as measured at the property boundary;

(g)

signs such as "No Entry", "No Exit" and "Entry Only" installed at the entry and exit of the development.

(h)

the installation of continuous double lines along the Huntingdale Road centreline between the property boundaries to prohibit right turning vehicles into the development.

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

3 No more than a maximum of 45 children must be accommodated on the premises. The number of children between 1-3 years must not exceed a maximum of 15.

4 There is to be no more than 7 staff at the premises at any given time.

5 Hours of operation are restricted to Monday to Saturday between 7:30am and 6:30pm.

6 No staff is to park their vehicles on either Huntingdale Road or Leonard Street.

7 Before the use begins and/or the building is occupied, an acoustic fence to a minimum height of 2.1 metres above natural ground level, must be erected along the southern and the rear abuttals to the rear play area, and along the entire northern boundary commencing at the rear and continuing up to the front of the proposed new building. The design of the fence must be prepared either in consultation with or by a suitably qualified acoustic engineer. The details of the design and acoustic qualities of the fence must be to the satisfaction of the responsible authority.

8 All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties (including the load reserve). The on-site drainage system must prevent discharge from the driveway onto the footpath. Such a system may include either a trench grate (175mm minimum width) located within the property; and/or shaping of the driveway so that water is collected in a grated pit on the property; and/or another Council approved equivalent.

9 Stormwater discharge is to be detained on-site to the predevelopment level of peak stormwater discharge. Approval of any detention system is required from the City of Monash, the Responsible Authority, prior to works commencing.

10 The entire site's stormwater drainage must be directed to the south-west corner of the property where it must be collected and free drained via a pipe to the Council pit inside No. 151 Huntingdale Road in the rear easement via a pipe to be constructed to Council standards.

11 Driveways are to be designed and constructed using appropriate engineering standards to the satisfaction of the Responsible Authority. Coloured bricks or pavers must be used in the construction for the external driveways, to the satisfaction of the Responsible Authority.

12 The Northern access point must be constructed to operate as an exit only, to the satisfaction of the Responsible Authority.

13 The Southern access point must be constructed to operate as an entry only, to the satisfaction of the Responsible Authority.

14 Signs, line marking and traffic islands must be provided to direct and control the flow of traffic internal/external to the site, to the satisfaction of the Responsible Authority.

15 Prior to the commencement of any use, or any works authorised by this permit, the developer must demonstrate to VicRoads' satisfaction that they and their contractors have developed and maintained a:

(i)

Quality Management System

(ii)

Occupational Health and Safety System

(iii)

Environmental Management System

(iv)

Traffic Management System.

16 Before the commencement of any use, or any works authorised by this permit, the developer must:

(i)

Provide evidence that the contractor has a public liability insurance policy for at least $10 million, effective for the duration of the works.

(ii)

Provide VicRoads with the name, address and out-of-hours telephone numbers of the principal works contractor.

17 At least 21 days prior to the works commencing, the developer must prepared to VicRoads satisfaction a traffic Management Plan in accordance with VicRoads Worksite traffic management (Road works signing) Code of Practice showing the proposed provision for traffic and signage for the duration of the works.

18 The developer must pay the full cost of all works, drainage, service relocations and any other associated costs.

19 Prior to the commencement of works within the road reservation, a Road Use Permit must be obtained from the VicRoads Officer at 12 Lakeside Drive, Burwood East 3151 (Telephone 9881 8770).

20 The vehicular entry crossover shall be at least 3.5 metres wide, as measured at the property boundary.

21 Signs such as "No Entry", "No Exit" and "Entry Only" are to be installed at the entry and exit of the development.

22 Continuous double lines must be installed along the Huntingdale Road centreline between the property boundaries to prohibit right turning vehicles into the development.

23 Before the development hereby permitted starts three copies of a landscape plan generally in accordance with the landscape plan by Zenith Concepts dated July 2005 must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will form part of the permit. The landscape plan is to specify all species, size at planting and maturity. The landscape theme is to be in keeping with the neighbourhood. Trees with spreading canopies are to be included in the plan for the front setback and rear yard where possible, provided the existing trees in the rear yard are retained as indicated on the above plan. The Zenith plan must be modified to show retention of the existing front Cypress trees in the 2m deep garden bed between the two driveways.

24 An arborist is to be present on-site when the northern most crossover is dug to repair any damage done to the root system of the Council street tree. A written report from the arborist is to be provided to Council advising of their attendance and the works carried out in relation to any remedial actions taken. Barriers etc. are to be installed if considered required to prevent damage to the crossover.

25 Before the use commences operation the landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority. An automatic drip irrigation system must be provided to all landscaped areas.

26 Before occupation, all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.

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

•

The development is not started within two years of the date of this permit.

•

The development is not completed within four 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 months afterwards.

Mr John Cicero, Solicitor of Best Hooper, Solicitors

There was no appearance by VicRoads or Lorna & Cyril Williams.

1 This is an application for a 45-place child minding centre on land measuring 24.38m[1] x 43.01m depth and an area of 923m². The land enjoys a 3.09m slope north-east to south-west which is being utilised to cut in a basement car park for 7 staff cars.

2 Huntingdale Road is a four lane arterial road. The area is characterised by modest cream brick 1950's and 1960's dwellings. The basement projects 1.2m above natural ground level, rendering the building technically three storey, although it appears double storey. The upper level only contains a small footprint catering for a staff room, office, multi purpose room, laundry and amenities.

3 Seven permanent staff are required, calculated as follows:

4 The facility seeks to operate 8am- 6pm Monday - Saturday, six days per week, and proposes using the existing southern driveway. An existing red brick fence and Cypress hedge (florient) can remain, to retain an existing evergreen vegetated screen that already forms part of the character of the area.

5 An arborist report by John Galbraith confirms the Responsible Authority's Eucalyptus street tree will not be damaged by new northern crossover (therefore Council's fourth grounds for refusal is satisfied). Council's grounds of refusal are:

i

The location of the proposed child minding centre is inappropriate as it would be detrimental to the amenity of the area.

ii

The location of the proposed child care centre is inappropriate regarding vehicle access to the site.

iii

The proposed development does not cater adequately for vehicle movement on site and for adequate site arrangements for pick up and drop off of children.

iv

The proposed crossover would compromise the health of a street tree.

6 In this residential 1 zone, a permit is needed for use and development of a child care centre. Non-residential uses to serve local community needs are one of the zone's purposes.

7 On 2 June 2005 cl.22.09 was gazetted on "Non-residential use and development in residential areas". The "discretionary uses policy" from which the above cl.22.09 policy was derived, is still a Reference Document under the planning scheme even though it has effectively been incorporated into the planning scheme as cl.22.09. The "Guide to Child Care Centres" is not a reference document in the Scheme and (remarkably) only requires one drop-off parking space. CH Architects has suggested plan alterations to add four temporary car parking spaces for parent drop-off and a drive-through lane.

8 VicRoads had expressed satisfaction with the crossover and driveway access/egress off Huntingdale Road. It leaves the matter of internal drop-off spaces, layout and traffic circulation to the Responsible Authority.

9 The Responsible Authority is unhappy at the permit applicant's provision of four drop-off car spaces plus the drive through lane because they seek a 5th drop off car space calculated at 0.1 space per child which rounds up to 5 drop-off car spaces.

10 The subject site lies between three shopping centres, the Glen, Ashwood and Ashburton. The Policy basis seeks to:

•

Improv[e] local employment opportunities, reducing travel time for Monash residents, encourage home based businesses, retaining a range of public and private educational facilities.

•

Council supports such uses where it can be demonstrated that the use meets the zone purpose, and the built form is compatible with the residential scale and character of the surrounding area.

•

Car parking satisfies the needs of users without detriment to the local amenity.

•

To ensure that development is appropriate having regard to the residential environment of the surrounds and that the amenity of the neighbourhood is not adversely affected by a business conducted in a residential area.

•

To ensure that all built form in residential areas is respectful of residential character.

•

To ensure that the adequate and well-located vehicle parking is provided for all new developments.

12 The policy's locational criteria seek to (as relevant to this child care centre and location):

•

Locate discretionary non-residential uses in residential areas adjacent to existing activity centres and on higher order and busier streets and roads, and particularly on corner sites.

•

Provide appropriate buffers and interface between commercial, residential and industrial land uses.

•

..............

13 Clause 22.09's urban design criteria seeks to:

•

Apply creative design solutions that enhance the quality of all residential areas.

•

Maintain and enhance the established canopy treed environment throughout the municipality, continuing is significance in defining the garden city character of Monash.

•

Maintain a consistency of street setbacks and building height with existing residential neighbourhood and residential scale.

•

Landscaping to be consistent with garden character of the neighbourhood.

•

Buffering of car parking areas.

•

Retention of canopy trees.

15 The Council interprets the first dot point "locational criteria" under its clause 22.09 "Non-residential uses in residential areas" as mandating the following three cumulative[2] locational attributes, not just for child care centres but for any non-residential use:

(1)

adjacent to activity centres;

(2)

on a higher order and busier street or road;

(3)

particularly on a corner site.

16 If this is the way Clause 22.09 should be read, it would severely limit suitable sites or suitable uses such as this child care centre and would negate any need to continue with the next four dot points.

17 It is interesting to note that the wording of the 1997 Reference document "Discretionary Uses Policy" and "Locational Criteria" are different to its gazetted cl.22.09 (even though it formed its basis) in that it is

(1)

not cumulative and

(2)

accepts that a main road location is as good as abutting a commercial zone.

18 Huntingdale Road does fall within a "higher order and busier street or road", and I am satisfied that, location wise, cl.22.09-4's policy attributes are met.

19 The Responsible Authority did not raise any issues with the form of the building when considered against its neighbourhood character policy.

20 It is true that grassed front setbacks will be diminished by providing four drop-off bays and a drive-through, but this is where the balancing of conflicting policies comes into play, i.e. balancing landscaping criteria under cl.22.09-4 and need for local child care centres.

21 It is also one of the reasons for my requiring substitution of concrete with a more attractive paved surface, and retention of the existing front cypress trees which already form part of the neighbourhood character.

22 The Responsible Authority's drop off rate is calculated at 0.1 space per child while the Permit Applicant calculates it at 0.09.

23 The Responsible Authority wants a 4.2m wide drive-through rather than the 3.5m width offered. At 3.5m it leaves a 2.5m garden bed for front landscaping to the street, or more room for a pathway between the building and dorp off car spaces.

24 The Responsible Authority also wants a path between the drop-off car spaces and the building façade so no conflict occurs between taking children from the cars to the building with cars driving through the driveway.

25 Mr Donald James Robertson of the Traffix Group, applied a rate of 0.09 spaces generating four drop-off car spaces at this 45 child care centre, derived from his study of the Brentwood Child Care Centre at Berwick. Brentwood's figures are consistent with other child care centres. Berwick is an outer ring suburb, therefore generates comparable drop-off vehicles. He calculated 0.09 based on a combined peak staff and parent parking survey at Brentwood.

26 The Responsible Authority derived its rate of 0.1 from the Barrie Street, Cameron Avenue and Box Hill child care centre surveys.

27 The worst case scenario according to Mr Robertson is that at a time of over capacity, parents can park around the corner in Leonard Street and walk 50 metres to the front door. My site inspection revealed this is a reasonable proposition. There is plenty of room in Leonard Street and only a short stroll around the corner, off busy Huntingdale Road. That way, no blocking of the driveway occurs.

28 His alternative worst case scenario is that parents could double park in the driveway, blocking the four parked cars, while they took their child into the centre. Three extra cars could be accommodated in the length of the driveway and off Huntingdale Road's busy arterial that way.

29 Clause 52.06-3 of the planning scheme seeks a 3.5m wide driveway irrespective of the user of that space. The Responsible Authority's nomination of 4.2m wide aisle under the Australian Standard AS/NZS2890.1:2004 seeks a 4.2m wide aisle for Class 3a user only which reads:

"Short term high turnover parking etc. shopping centres".

30 This is not a shopping centre use.

31 As to safety of walking children into the centre, along the driveway, Mr Robertson admitted that if I was concerned with conflict between children and cars, one could provide a 0.8m path between the bay's "squeeze point" and the building. This translates into a reduction to 2.0m from 2.5m for the Cypress beds, or a setback to the entire building of 0.5 metres.

32 I do find a separation between car movements in the driveway and the movements of parents taking their children and strollers into the centre necessary. Therefore I require certain minimum distances for the front landscaping (2 metres), the driveway (3.5 metres) and the walkway (1.0 metre). If the building needs to be set back slightly to accommodate this, so be it.

33 Mr Robertson's further evidence confirmed that the 30-40 metres distance from the intersection with High Street Road is adequate to

(i)

allow the cancelling of one's left hand turn indicator when turning from High St Rd into Huntingdale Road; plus

(ii)

re-start the indicator to show a left hand turn off Huntingdale into the childcare centre.

34 It is trite planning law that residential zones are appropriate for child care centres.

35 Although SMA Projects v Port Phillip CC[3] holds that the purpose of policy, such as cl 22.09, is to guide the exercise of discretion and not to be elevated to law, I find it is complied with along this higher order and busier road.

36 On Council's 0.1 rate per child for parent drop-off spaces, the applicant is only a half a car space short and, when rounded off to 1 car space, there is, on a worst case scenario, short term accommodation around the corner in Leonard Street.

37 This location on a main road near the intersection of another main road is not in a residential 'hinterland'. Perkins Architects v Monash CC [2005] VCAT 628 distinguished.

38 cl.22.09-4 should not be restrictively read to render sites ineligible if they are not next to an activity centre and on a higher order and busier road and particularly on a corner site. It is not a cumulative requirement. Rather, these criteria or attributes should be read in the alternative.

39 An acoustic fence of 2.1m is a reasonable condition around all 3 sides and rear abuttals, to buffer the noise from outdoor play areas, and, in respect of the northern boundary, from noise from the internal rooms when the doors are open.

40 Amendments to the landscape plan prepared by Zenith Concepts to retain the front thick cypress landscaping will retain the existing neighbourhood character and the established canopy treed environment, in accordance with cl.22.09-4. So will retention of the mature substantial evergreen canopy trees in the rear yard, as indicated on the Zenith Concept Landscaping plan.

41 Paving the remainder of the entry driveways and car parks will be softer and more attractive than coloured concrete in this residential setting.

42 I accept and expand Mr Robertson's advice of a 0.8m wide footpath separate to the driveway, along which to walk children and pushers, to 1.0 metres, to ensure there is enough space for the parent, child and any pusher. If the building needs to be pushed back to accommodate this, so be it, on a safety first basis.

43 To conclude, this is a purpose built child care centre with a residential built form, good amenities and facilities, boasting basement parking for the entire staff, plus an extra almost 100% drop-off parking spaces for parents and good vegetative cover. All these elements taken together are to be lauded.