1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicant to:

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

TP.01.01 to TP.01.03, TP.02.01, TP.02.02, TP.04.01, TP.04.02, TP.06.01 to TP.06.03

1. In application P2766/2017 the decision of the responsible authority is affirmed.
2. In planning permit application P480/2017 no permit is granted.

• Colleen Peterson (town planner) of Ratio Consultants
• Brett Young (traffic engineer) of Ratio Consultants
• Darren Liu (acoustic engineer) of Acoustic Control
• Dr Peter Yau (arborist) of PSY Inv
• Stephen Schutt (landscape architect) of Hansen Partnership

Adrianne Kellock, Town Planner of Kellock Town Planning

Use and development of the land for a two storey child care centre for 84 children.

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Clause 32.08-2 to use land within the General Residential Zone for a Child care centre

Clause 32.08-8 to construct a building and construct or carry out works associated with a Section 2 use, on land within the General Residential Zone.

Clause 52.05-9 to display business identification signage.

Clauses 9, 10, 11, 15, 16, 21, 22.01, 22.02, 22.03, 22.04, 22.05, 32.08, 42.02, 52.05, 52.06, 55 and 65.

The land is a rectangular allotment, with a frontage to Bungay Street of 30.48 metres, a depth of 45.72 metres, and an overall area of 1394 square metres. The land is presently vacant of any buildings.

The Tribunal inspected the site and surrounding area prior to the hearing, on 7 June 2018.

1. D B Empire Pty Ltd (the 'Applicant') seek a review of the decision of Banyule City Council to refuse to grant a permit for the use and development of a child care centre on land at 63 Bungay Street, Watsonia (the 'review site'). The Council's grounds of refusal raise concern regarding the suitability of the location for a child care centre, the impact on neighbourhood character, the provision of landscaping, the impact on existing trees, and the acoustic impact on nearby residential properties.
2. The Applicant relies on grounds that essentially seek to refute the Council's grounds of refusal.
3. A number of nearby residents have lodged statements of grounds opposing the proposed child care centre, though none of the residents have sought to become parties to the proceeding. In addition to the Council's concerns, the residents' statements of grounds address the need for a child care centre, the likely traffic and car parking impacts, and a range of direct amenity impacts.
4. Prior to the hearing the Applicant circulated amended plans which reduced the size of the child care centre, and made a number of changes to the proposed layout.
5. The issues or questions for determination are:

1. Is the proposed use appropriate for this location? 2. Is the proposal an appropriate response to the surrounding neighbourhood character?

1. Does the proposal appropriately respond to the existing trees on the site and adjoining properties?

1. Will there be any unreasonable off-site amenity impacts? 2. Does the proposal appropriately provide for car parking and traffic movements?
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Banyule Planning Scheme, I have decided to affirm the Council's decision, and direct that no planning permit be granted. My reasons follow.

IS THE PROPOSED USE APPROPRIATE FOR THIS LOCATION?

1. The Council submits that while child care centres are commonly located in residential areas, this location is not an appropriate one for this land use, having regard to the quiet residential location, and absence of a direct relationship to a main road, activity centre or public transport.
2. The land is located within the General Residential Zone, one of the purposes of which is:

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

1. The Council's local policies seek to provide guidance on the appropriate locations for non-residential land uses. Clause 21.04-2.1 sets out the following land use policy:

To provide appropriate opportunities for business activities outside Activity Centres.

• ...
• Protect residential areas from unsuitable intrusions of non-residential uses that may have a detrimental impact on residential amenity.

1. Policies for Community facilities are provided at Clause 21.04-4, and includes the following guidance:

To provide facilities located so as to be easily accessible to users, but with minimal negative impact on the amenity of the surrounding area.

• Ensure that cultural, health, educational and institutional uses are located in accessible places according to need, but also that it has minimal impact on the amenity of the surrounding area.

1. Finally, and perhaps most relevantly, Clause 22.04 contains the Council's Non-residential use and development in residential zones policy. Much of this policy is relevant and has assisted my assessment in this proceeding. Of note is the following at Clause 22.04-3:

It is policy that proposals are assessed against the following criteria:

• Non-residential uses should be located where there is a demonstrable need for the proposed facility or service.
• Commercial uses (including multi-practitioner medical centres) should be located in or adjacent to commercial centres.
• Recreational, religious and community uses and single practitioner medical centres should be located in or adjacent to commercial centres unless they predominantly serve local community needs.
• Educational uses should be located close to public transport and to minimise traffic impacts on local streets.
• Non-residential uses should be discouraged from locating in residential areas if there are suitable sites in nearby commercial centres.
• The development and expansion of larger non-residential uses should be planned strategically and undertaken in accordance with the provisions of an approved master plan.

• Where it is appropriate that a non-residential use locate in a residential area having regard to the Primary Location Criteria, the non-residential use should be:
  • located on a corner lot and/or road in a Road Zone
  • within easy walking distance of public transport
  • in an existing non-residential building where possible.
• Non-residential uses should not isolate dwellings from the surrounding residential area.

1. In applying these policies it is important to remember that none specifically apply only to child care centres. As such, none of the policy statements consider the appropriate or desirable locations for the establishment of child care centres in residential areas. Instead, the policy has been written in a broad way so that it can be applied to a wide range of non-residential land uses that are potentially permissible in the residential zones. This is an understandable approach by the Council, but it must be understood and recognised that different non-residential land uses have different locational requirements, different levels of reliance on positioning adjacent to main roads, public transport and activity centres, and different levels of amenity impacts on residential interfaces. As such broad policies such as those referred to above must be applied in a flexible manner.
2. I find that the review site is an appropriate location for the establishment of a child care centre. I make this finding for the following reasons. Firstly, I agree with the findings of previous Tribunal decisions that a child care centre is a community land use that serves predominantly local community needs. In particular, I rely on and agree with the following analysis from the Tribunal decision of PHHH Investments Pty Ltd v Bayside CC [2015] VCAT 922:

[15] There is another perception that the proposed use, because it is by a private provider, is a commercial use with no community value, and that it is a purely commercial intrusion into a residential area.

[16] It is not uncommon that community and education facilities are provided by private providers, as in the case of hospitals, medical and allied health services, as well as childcare centres. A service provided privately does not negate its value as a community and education facility.

1. While the policy at Clause 22.04 seeks to restrict the potential location of commercial uses within residential zones, it also recognises that community uses that serve predominantly local community needs, such as this child care centre, should not be restricted as to their location proximate to activity centres, as set out in the policy quote below.
   • Recreational, religious and community uses and single practitioner medical centres should be located in or adjacent to commercial centres unless they predominantly serve local community needs.
2. The policy therefore identifies the need to be more flexible in the policy encouragement for suitable locations for non-residential uses that provide a community service and serve a local community need, as compared to those that simply serve a commercial purpose. This identification provides support for the proposed use to occur on the review site.
3. Secondly, while the review site does not abut a main road, it does exist in a neighbourhood that has a mix of residential and non-residential land uses. Particularly I refer to Loyola College, which is sited on a sizeable parcel of land that accommodates most of the northern frontage of Bungay Street. As a result of this adjacent school, Bungay Street does not have a consistent residential character. It is also clearly subject to non-residential vehicular traffic at school drop-off and pickup times, as evidenced by the traffic calming measures and parking restrictions already implemented in the street. The establishment of a child care centre in Bungay Street will therefore contribute to the current mix of residential and non-residential land uses that already occur in the street.
4. Thirdly, a child care centre is a land use that can only draw a limited level of benefit from a potential location adjacent to public transport and activity centres. One of the reasons why non-residential land uses are encouraged to be positioned within or adjacent to activity centres is to encourage multipurpose trips, where people can access a range of services in the one trip to an activity centre. However, parents or guardians using child care centres generally drop off or pick up their children on the way to or from work, and would not regularly combine such a trip while also accessing a range of other services. Further, it is common that most people accessing child care centres at the start or the end of the day would do so by car, rather than via public transport, although I do accept that staff to a child care centre may appreciate being able to travel to work via public transport. For these reasons I consider that there is not the same planning desire to co-locate a child care centre with an activity centre, as would be the case for other non-residential land uses.
5. Fourthly, a child care centre is a land use that can integrate well with a residential area. It can have a built form that is similar in style and scale to existing dwellings, it can provide appropriate setbacks to its boundaries, it can provide a landscaped presentation around its perimeter, and it can limit its off-site impacts in a reasonable manner. In relation to this last point, it is noted that child care centres mostly operate during daytime hours during the week, and therefore do not create off-site amenity impacts at times in the evenings and on weekends when the surrounding residential properties are more commonly occupied, and when residential amenity is most highly valued.
6. Fifthly, the location of the review site and its potential use as a child care centre satisfies a range of the locational policies from the Banyule Planning Scheme which I have set out above. In particular:

1. The review site is clearly in an accessible location, as evidenced by the extent of traffic that currently uses Bungay Street to access Loyola College. 2. The review site is located proximate to a number of schools, and as such this location provides the opportunity for multipurpose trips for parents with children at both a school and in child care.

1. The evidence of Mr Peterson is that there is a demonstrated need for additional child care places in this neighbourhood, even having regard to the two recent approvals for child care centres nearby to the review site.

1. Is unlikely that there is a suitable site for a child care centre in nearby commercial centres, that can be available at a competitive price that enables a child care centre to be run successfully. 2. While the proposed child care centre will not be located in an existing non-residential building, as the review site comprises two existing vacant allotments, it will be located on land currently not used for residential purposes. Therefore, it will not result in the demolition of existing residential dwellings that contribute to the character of this neighbourhood.
2. Finally, I am not persuaded by the Council's submissions that the proposed land use will isolate the residential properties located on the western side of the review site. Those residential properties will continue to have residential abuttals to its south, west and north, albeit across roads to the north and west. Isolation of residential properties occurs when some properties are surrounded by non-residential land uses, and that clearly won't be the outcome here.
3. For these reasons I find that the review site is an appropriate one for the establishment of a child care centre.

IS THE PROPOSAL AN APPROPRIATE RESPONSE TO THE SURROUNDING NEIGHBOURHOOD CHARACTER?

1. The Council submits that the proposed development fails to achieve an appropriate built form and landscape outcome for the review site, and fails to provide an acceptable degree of change to the surrounding neighbourhood.
2. Policy at Clause 21.06-1 seeks:

To ensure that development respects and contributes to the desired future character of residential neighbourhoods and the identity of Activity Centres and Neighbourhood Centres, in a manner that supports varying degrees of housing change.

1. The review site is located within an area identified for incremental change, where the following vision applies.

Development must make a positive contribution to the desired future neighbourhood character, including opportunities for tree protection and planting.

1. The review site also falls within Garden Suburban Precinct 1, under the Residential neighbourhood character policy at Clause 22.02 of the Banyule Planning Scheme. The following Statement of preferred future neighbourhood character specifically applies to that part of the Garden Suburban Precinct 1 that is located within the General Residential Zone Schedule 2:

These areas will protect and enhance the garden suburban character of the precinct with an emphasis on protecting trees and creating new opportunities for vegetation throughout sites. They will provide for a mix of well-designed single dwellings and medium density dwellings in garden settings, with space around and between dwellings to create an attractive, treed landscape setting.

1. In addition, the site is contained within a Vegetation Protection Overlay, though the overlay does not apply to this application, as no planning permit is sought under the overlay to remove any trees.
2. There is an emphasis in the policy framework from a character perspective on the importance of landscaping to the character of this neighbourhood. I find that the proposed development is an appropriate response to this emphasis on the importance of landscape. I make this finding for the following reasons. Firstly, the proposal seeks to retain the three existing canopy trees on the review site, though the extent to which the proposal is successful in this approach will be addressed separately below. The retention of the three existing trees on the review site is an important first step in responding appropriately to the policy guidance provided by the Banyule Planning Scheme, as well as the Statement of preferred future neighbourhood character for the General Residential Zone Schedule 2, and the application of the Vegetation Protection Overlay to the review site and surrounding properties.
3. An important second step is the provision of suitable setbacks around the review site to allow the creation of a landscaped garden setting for the proposed child care centre. The amended plans circulated prior to the hearing provide for an increased front setback that varies between 8.9 and 9.5 metres. At the hearing the Council fairly conceded that this increased setback will allow the establishment of a garden setting at the front of the site to respond to the landscape character of the surrounding neighbourhood. I agree with the Council's assessment on this matter. Not only will the front setback allow for the successful retention of two large canopy trees in the front setback, but it will also provide space for a generous garden setting, including the planting of additional canopy trees in the front setback.
4. An appropriate landscape setting is also to be established along the eastern boundary of the review site, through the retention of two existing canopy trees in the north-eastern corner of the review site, and the provision of opportunities for the planting of additional canopy trees in locations along the eastern boundary. Along the western boundary it is proposed to retain a very large and significant canopy tree on the review site, and provide for the protection of another large canopy tree that exists next to the boundary on the adjoining property to the west. The retention of these two canopy trees restricts the ability to plant significant amounts of additional landscaping underneath the canopies of these trees. However, a generously sized garden bed is proposed in the north-western corner of the review site, and other opportunities for landscaping are created between car parking spaces 4 and 5, and in the south-western corner of the review site. Through the combination of new plantings and the retention and protection of existing canopy trees, an appropriate landscape outcome is also achieved along the western interface.
5. The southern boundary of the review site abuts two adjacent properties, and it is reasonable for the landscaping outcomes along this interface to respond to the changing context to these two residential properties. The property at 66 Princess Street is developed with a large outbuilding[2] at the very rear of its site, and as such has a limited outlook from the main dwelling and the area of secluded private open space towards the review site. In response, there is the potential for a less generous landscape setting to be provided to this interface. In comparison, the adjacent property 64 Princess Street has a large open rear yard which provides for clear views towards the review site.
6. I agree with the Council's submission that the landscaping response adjacent to the property at 64 Princess Street is currently underwhelming and should be more generous. I acknowledge the difficulty in planting new canopy vegetation in the south-west corner of the review site given the presence of a canopy tree on the adjoining property to the south. However, new vegetation growing to around 6 metres in height should be established between the siting of the proposed child care centre building and the rear boundary of the property at 64 Princess Street. While such landscaping is not currently proposed in this location, I am persuaded by the evidence of Mr Schutt that there is sufficient room for the planting of such vegetation. That planting could occur either within the easement that runs along the rear boundary, or between the easement and the proposed building. If I were minded to direct the grant of a permit for the establishment of a child care centre on the review site, I am satisfied that a set of appropriate conditions can achieve a reasonable landscaping outcome to this interface.
7. Subject to this one change, I am satisfied that the extent of landscaping proposed around the perimeter of the review site will achieve an appropriate landscape outcome, including the provision of landscape buffers that is sought under Clause 22.04 of the Banyule Planning Scheme.
8. In terms of the other components of the proposed development, I find that they are appropriately responsive to the surrounding neighbourhood character, for the following reasons:

1. The proposed built form is two storeys in height, and therefore of a height expected in a residential neighbourhood, where one and two storey buildings currently prevail. The proposed height is appropriately arranged and articulated across the site, with the first floor having a larger setback from the street, and being of a smaller size than the ground floor component of the building. The overall height of the building is 7.9 metres, with wall heights not exceeding 6.4 metres. Such heights are similar to those found on nearby two storey dwellings, and when coupled with the level of articulation proposed, will result in a built form that will sit comfortably in this neighbourhood. Indeed, the built form associated with this proposed child care centre will sit more comfortably in the existing character of the neighbourhood than the larger built forms associated with the nearby Loyola College. 2. A range of relatively generous setbacks are proposed to the boundaries of the review site. The ground floor of the proposed building is set back 4.8 metres from the eastern boundary and 3.6 metres from the southern boundary of the review site. The car park sits between the ground floor of the proposed child care centre and the western boundary of the review site. The more relevant setbacks are those to the first floor. The first floor of the building is setback just over 4.0 metres from the eastern boundary, with the outdoor first floor play area to come as close as 3.27 metres from the eastern boundary. To the southern boundary the first floor play area has a setback of between 5.0 and 6.0 metres, with the internal components of the building setback a total of 16.9 metres. To the western boundary the first floor play area has a setback which varies between 3.9 and 6.1 metres, and the internal components of the building are setback between 7.2 and 9.8 metres. The range of setbacks proposed, particularly those to the side boundaries of the review site, reflects the spacing of dwellings from boundaries that occurs elsewhere in this neighbourhood. The range of setbacks will also achieve the policy objective of achieving a garden setting for this neighbourhood, with spaces between dwellings to create a treed landscape setting.

1. The proposed building adopts a range of colours and materials that reflect the surrounding housing stock. The streetscape presentation of brickwork to the ground floor and horizontal weatherboards to the first floor reflect that these are the predominant materials used in the surrounding housing stock, particularly that housing stock which represents the original housing in this suburb.

1. The proposed building also adopts a skillion roof form and a gable end presenting to Bungay Street, so as to reflect the predominant pitched roof forms found in the surrounding neighbourhood. 2. The car parking is set behind the frontage of the review site, and therefore will have a reduced visual impact on the streetscape presentation of the review site. 3. The proposed level of signage is reasonably constrained such that it won't have a significant visual presence in this neighbourhood.
2. I acknowledge that the proposed building on the review site will not appear as a single detached dwelling, but rather will appear as a child care centre that seeks to take on some of the characteristics of the surrounding housing stock. I find that to be an appropriate response when considering the particular floor space and accommodation requirements of a child care centre. The key question here is not whether the proposed child care centre will appear as a single detached dwelling, mimicking the scale and presentation of dwellings found elsewhere in Bungay Street. Rather, the appropriate question is whether an appropriate level of design skill has been employed to ensure a built form outcome which will integrate, and not contrast, with the existing residential character of this neighbourhood. For the reasons set out above I find that the proposed development has achieved this outcome, and is an appropriate response to the character of the surrounding neighbourhood.

DOES THE PROPOSAL APPROPRIATELY RESPOND TO THE EXISTING TREES ON THE SITE AND ADJOINING PROPERTIES?

1. The review site contains three existing canopy trees (trees 4, 5 & 9), and the review site abuts an existing large canopy tree adjacent to its western boundary (tree 8). The proposal seeks to retain and protect all four of these canopy trees, as well as other smaller trees that are found on adjoining properties near the boundaries of the review site. At the hearing there was no dispute that the proposal will provide for the retention of trees 4 and 5 in the north-eastern corner of the review site, through the provision of appropriate setbacks to the proposed built form. Rather the focus of the hearing was on whether the proposal will provide for the protection of tree 9 located near the western boundary of the review site, and of tree 8, located on the opposite side of the western boundary.
2. Arboricultural evidence was provided by Dr Yau. It is his written and oral evidence that trees 8 and 9 will be able to be retained on-site, as:
   1. there will be no excavation within the tree protection zones of both of these trees, with the car parking located within the tree protection zones of these trees to be constructed above grade; and,
   2. the car parking areas within the tree protection zones are to be constructed of porous material that will allow water to infiltrate the tree protection zones of these trees.
3. While it was Dr Yau's evidence that the proposal provided for these outcomes, in response to my questions it emerged that these outcomes have not been achieved by the proposed design. Firstly, the proposal includes the construction of two columns within the tree protection zone of tree 9 and one column within the tree protection zone of tree 8. Clearly, these columns will require the excavation of land within the tree protection zones of both of these trees. While it is widely acknowledged that some disturbance can occur within the tree protection zones of large canopy trees, my concern here relates to the apparent absence of substantial flexibility to relocate the columns, should their position coincide with a substantial tree root.
4. In his oral responses to my questions Mr Yau conceded that the chances of finding a significant root through these column locations is a matter of 'pot luck.' He also opines that the columns may be able to be moved sideways if a large root is encountered upon excavation. However, it is my observation that a sideways movement of these columns is simply not possible, due to the location of the columns between car parking spaces. A movement further away from each tree is also not possible as this would place the columns within the car parking aisle, and a movement closer to the western boundary and the trees may be restricted due to the need to leave clearance to allow car doors to open in the adjacent car parking spaces.[3] It is evident that the potential impact of these columns on these two substantial canopy trees was not considered by Dr Yau until it was raised in my questions, as evidenced by the absence of any reference to these columns in the written evidence. Further arboricultural investigation, including potential trenching, may be required to ascertain whether indeed the proposed column locations could proceed without encountering significant roots.
5. Secondly, the extent of permeable paving proposed for the review site is not presently extended to the extent of the tree protection zone for tree 9, as depicted on the landscape plan prepared by Mr Schutt. However, this is a minor matter which can easily be rectified by a simple change to the landscape plan.
6. Thirdly, it is evident that the extent of tree protection zones for both trees 8 and 9, and thus the extent of permeable paving required by Dr Yau, extends well into the area over which the first floor play area is to extend. As such, we would have the rather absurd situation of permeable paving being provided in a location where it was completely roofed, and could not possibly provide for rainfall to infiltrate into the soil below. Again, clearly this is something that was not contemplated by Dr Yau before my questioning, with it being evident that he was confused as to the extent of the first floor play area relative to the tree protection zones of trees 8 and 9. Dr Yau's response to my questions was somewhat haphazard, indicating that potentially water will run off the edge of the first floor play area into a garden bed, that water would defuse from a wet patch to a dry patch of ground, but also indicating a clear preference that the roofed area should be repositioned beyond the tree protection zones of the trees. Mr Carey added to the range of responses by suggesting in re-examination that a sprinkler system could be installed on the underside of the roofed play area, a suggestion that was supported by Dr Yau.
7. I am not persuaded that this is a proposal that has appropriately been assessed in terms of its impacts on trees 8 and 9. It is clear that the arboricultural assessment has been undertaken on some significant false assumptions and that the impact of this proposed building is greater than that anticipated by Dr Yau in his written evidence and oral evidence in chief. While Dr Yau did his best to come up with solutions on the run to the issues identified in my questions to the witness, I remain unconvinced that the solutions put forward will actually achieve the protection of trees 8 and 9.
8. In particular, I am not persuaded that there is the flexibility with moving column locations relied upon by Dr Yau in the event that a major root is encountered in the proposed column locations. I am also not persuaded that Mr Carey's suggestion of a sprinkler system to water the soil under the permeable paving under roofed areas, to be a practicable solution. Firstly, it relies on a continuous and maintained irrigation system for the life of these trees, which are each given a long safe useful life expectancy by the arborist. Secondly, it would rely on the use of Melbourne's finite drinking water for such irrigation, noting that no rainwater collection tanks are currently proposed for the review site.
9. Both trees 8 and 9 are large native trees, which have a significant presence in this neighbourhood, and contribute to the valued landscape and canopied character of this neighbourhood. Both of these trees require a planning permit under the Vegetation Protection Overlay for their removal or destruction. No planning permit has been sought here to remove either of these two trees. Further, as tree 8 is a neighbouring tree, its removal is not an option for this Applicant. As such, it is appropriate that trees 8 and 9 both be protected in an appropriate manner from the potential impacts of the proposed development on the review site. For the reasons set out above, I have not been persuaded that the potential impacts of the construction of this child care centre on trees 8 and 9 have been appropriately considered by Dr Yau.
10. For these reasons I find that the proposed use and development of the land for a child care centre cannot proceed until the arboricultural impacts of the proposal on trees 8 and 9 have been properly and fully considered and assessed.
11. While this means that I will not be directing the grant of a planning permit in this proceeding, I will proceed to make findings on the other remaining matters in dispute.

WILL THERE BE ANY UNREASONABLE OFF-SITE AMENITY IMPACTS?

1. Off-site amenity impacts are generally measured in terms of visual bulk, overlooking and overshadowing. For a child care centre, it is also appropriate to consider the potential impact by way of noise. Car parking and traffic impacts will be considered separately below.
2. In relation to the potential impacts by way of visual bulk, I have already described above the range of setbacks proposed to the ground and first floors from the various residential interfaces. The range of setbacks and relative heights proposed to the first floor far exceeds that required under Standard B17.[4] While I acknowledge that this Standard does not apply to child care centres, it is a helpful comparison as this site could be developed with multiple dwellings, with setbacks and wall heights that comply with Standard B17. This standard therefore sets a useful benchmark for the type of built form which has been established to be acceptable in terms of visual bulk impacts in a residential setting. The proposed setbacks substantially exceed that required under Standard B17.
3. I also find that the range of setbacks at the first floor are responsive to the different contexts presented to the review site. The proposed built form steps closer to the boundary at the less sensitive interfaces at 66 Princess Street and units 3 and 4, 67 Bungay Street, where an outbuilding or an area of communal land respectively separates areas of secluded private open space from the boundaries of the review site. The proposed built form also steps further away from the boundary at the more sensitive interface to 64 Princess Street. For these reasons I find that the proposed development will not result in any unreasonable levels of visual bulk to the surrounding residential properties.
4. The proposed development provides screening to the edges of the external play area, and highlight windows along the east elevation of the first floor where they could potentially otherwise overlook an adjoining property. As such, the proposal will not present an unreasonable level of overlooking to surrounding neighbours.
5. The shadow diagrams submitted with the application demonstrate that at the equinox, the extent of overshadowing created by the proposed child care centre is mostly contained within the boundaries of the review site, and within the extent of shadowing already created by boundary fencing. While there is a very minimal amount of additional shadowing that will occur at 9:00 am and 3:00pm at the equinox on the adjoining properties to the east and west of the site respectively, I do not regard such minimal amount of additional overshadowing to be unreasonable in this context. The extent of additional shadowing that will occur is commensurate with that which would likely occur as a result of a residential development on the review site. I also place weight on the Council's finding that the extent of overshadowing that will occur from the proposed child care centre is reasonable and appropriate following their own independent assessment.
6. Acoustic evidence was provided by Mr Liu. He has modelled the existing background noise levels, and the likely noise impacts from a child care centre of this size and design. As a result of that modelling, he has been able to calculate the required height and type of acoustic treatment to the boundaries of the first floor play area, and to the boundaries of the review site. He has also been able to predict the extent of noise that will be heard from the child care centre on the surrounding residential properties. I am persuaded by the evidence of Mr Liu that the acoustic treatment he proposes around the proposed child care centre will adequately reduce the noise impacts to the surrounding residential properties to an acceptable standard.
7. The intent here is not to make this proposed land use inaudible from the surrounding residential properties. The acoustic treatment that is proposed will still result in the sound of children's voices being able to be heard outdoors on surrounding residential properties when children are playing outside in the child care centre. However it is the evidence of Mr Liu that with the acoustic treatment that has been designed for this child care centre, the extent of noises from the child care centre heard on surrounding properties will be relatively low, and of little impact when compared to the existing background noise levels. I am satisfied that is an appropriate outcome for this land use, given the suitability of child care centres to residentially zoned land, and given the nature of the use which does not occur on evenings and weekends when residential amenity is most highly valued.
8. For these reasons I find that the proposed land use and development will not result in any unreasonable levels of off-site amenity impacts to the surrounding residential properties.

DOES THE PROPOSAL APPROPRIATELY PROVIDE FOR CAR PARKING AND TRAFFIC MOVEMENTS?

1. Car parking and traffic evidence was provided by Mr Young. It is his evidence that the proposed development complies with the requirement for the provision of car parking as set out under Clause 52.06 of the Banyule Planning Scheme. As the amount of car parking required under the planning scheme has been provided on site, I cannot turn my mind to whether a sufficient level of car parking has been provided, or whether additional car parking should be provided for the proposed land use. I therefore cannot to my mind to the car parking concerns raised by residents who lodged statements of grounds in this proceeding.
2. A number of residents also raise concerns about the potential traffic impacts from the proposed child care centre on the review site. It is the evidence of Mr Young that unlike a school, a child care centre attracts arrivals and departures over a period of hours each morning and afternoon, and therefore does not attract the peak pickup and drop-off activity that often occurs at primary and secondary schools. It is the evidence of Mr Young that at peak times, the proposed child care centre will attract at most 68 vehicle trips in an hour, or slightly more than one every minute. It is the evidence of Mr Young that this level of traffic can be safely accommodated on Bungay Street, and will not unreasonably affect the operation and congestion of the intersection of Bungay Street and Watsonia Road.
3. As I have already observed, Bungay Street already experiences non-residential traffic, owing to the location of Loyola College on the northern side of the road. Bungay Street therefore already serves both local traffic as well as those accessing community services in this neighbourhood. The proposed development will add a level of traffic, some of which will be from local residents, and some which will be travelling from further afield to access the community service provided by this child care centre. While the additional levels of traffic will be noticeable in the morning and afternoon peak periods, it would not be a level that is unreasonable for this road network or residential neighbourhood. It will also not be at a level that will cause unreasonable amenity impacts to the surrounding residential properties, in the context of a street that already contains traffic calming measures and peak traffic loads for a large school.
4. I also give weight to the independent traffic analysis of the proposal conducted by Council's traffic engineers. It is noted that Council's traffic engineers provide their support for the proposal, having regard to the likely traffic impacts on Bungay Street and the surrounding road network. As such, the Council in this proceeding does not oppose the proposal on the basis of its likely traffic impacts.
5. Some more minor traffic related matters were also raised during the course of the hearing, including a question as to whether the existing speed hump located in front of the review site should be relocated or redesigned. I consider that both options are potential solutions to the scraping that Mr Young says will occur with the current speed hump design and the proposed crossover location. It would be beneficial for any future application for a child care centre on the review site to set out whether the Applicant seeks to redesign or relocate the speed hump, so that such a proposal can be considered as part of the application, rather than as a secondary process under permit conditions.
6. For these reasons I find that the proposed development appropriately provides for car parking and traffic movements.

1. As set out in the analysis above, I have found broad support for the use and development of a child care centre on the review site from the policies and provisions of the Banyule Planning Scheme. However, as the proposed development has failed to adequately protect an existing significant canopy tree on the review site and another large canopy tree on an adjoining property, I am unable to find that this proposal will achieve an appropriate outcome under the provisions of the Vegetation Protection Overlay and the Statement of preferred future neighbourhood character that applies to the land. This is particularly important as the proposal before me does not seek a permit under the Vegetation Protection Overlay to remove these two trees, and therefore the proposal must provide for their protection. Further, as no planning permit has been sought to remove one or both of these trees, I cannot consider whether a net community benefit might be achieved even if these trees cannot be retained.
2. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Which may or may not be a Dependent persons unit.

[3] The location of columns in car parks is restricted in accordance with Diagram 1 Clearance to car parking spaces set out at Clause 52.06-9 of the Banyule Planning Scheme.

[4] As found at Clause 55.04-1 of the Banyule Planning Scheme.