Wednesday 23 and Thursday 24 March and Tuesday 5 April 2005

[2005] VCAT 1152

The decision of the Responsible Authority is set aside. A permit is granted and directed to be issued in relation to Planning Permit Application No. T040133 for the land at 11C Duffys Road, Narre Warren East. The permit will allow:

Use of the land for an education centre for up to 150 primary school level students, in conjunction with agriculture and natural systems.

1 Before the use starts an amended Master Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with Master Plan Option B, sheet MPB3 dated March 2005, but modified to include or show:

(a)

The whole of the land, including the remnant bushland within the site's title boundaries.

(b)

The remnant bushland areas annotated on the plan as Remnant Bushland and all areas to be set aside for plant propagation and cultivation - but not including play areas and landscaping - annotated on the plan as horticulture.

(c)

A staging plan for implementing the Master Plan, with Stage 1 to include all buildings and works required to be in place upon commencement of the use.

(d)

Confirmation that Stage 1 will include construction of the strawbale wall along the site's eastern side and the provision of the horticulture areas to the south, south-east and east of the farmers shed and workshop bordering the remnant bushland.

2 The layout of the site and the activities to be conducted on the land must be generally in accordance with the approved Master Plan, or an amended version approved in writing by the Responsible Authority.

3 At all times, and to the satisfaction of the Responsible Authority, the horticulture and remnant bush areas must be actively maintained or conserved for these purposes, in conjunction with the use of the land for education centre.

4 Notwithstanding Conditions 2 and 3 above, the areas shown on the master plan for horticulture may be used, in part and to the satisfaction of the responsible authority, for small animal husbandry.

5 Before the use starts an environmental management plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority and must be implemented thereafter to the satisfaction of the Responsible Authority. The plan must describe:

(a)

Measures for controlling access into the remnant bushland areas.

(b)

A weed management program to contain and control the weed species identified in the 30 January 2005 Vegetation survey by Darcy Duggan, tendered at the hearing of Application for Review P2632/2004.

(c)

Provision for effluent disposal.

(d)

Provision for stormwater management.

(e)

Provision for waste collection, storage and disposal.

6 Before the use starts an access and parking plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority and must be implemented thereafter to the satisfaction of the Responsible Authority. The plan must describe/provide for:

(a)

A one-way access arrangement for the land - in via Duffys Road at the site's northern end and out via the Cardinia Reservoir internal access road - including appropriate directional signs.

(b)

Minor benching to improve sight lines at the intersection of Duffys Road and the Cardinia Reservoir Park Road onto which the access drive is to exit.

(c)

The location of a three car space drop-off zone plus on-site car parking at a ratio equivalent to one space per staff member and 0.2 spaces per enrolled student, for any stage of the development, or such lower ratio as is approved by the Responsible Authority based on any TravelSmart to School program or other car pool or bus program participated in by the school.

(d)

Access for the disabled.

7 Before the use starts an emergency management plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority and must be implemented thereafter to the satisfaction of the Responsible Authority. The plan must identify:

(a)

Procedures and facilities, to the satisfaction of the CFA, for ameliorating and responding to the threat of bushfire, including practice drills for students, water storage and reticulation.

8 The areas of the site not set aside for access, play areas, buildings, pathways, horticulture or remnant bushland, must be maintained as landscape areas comprising primarily native trees, shrubs and ground cover mulches, paving or plantings, to the satisfaction of the Responsible Authority.

9 Except with the consent of the Responsible Authority, school classes and activities, not including administration, teacher preparation and teacher professional development which may take place at any time, shall only take place between 8.30 am and 3.30 pm, Monday to Friday.

10 Use outside the hours provided in Condition 9 is permitted provided that:

(a)

The use is for school purposes including but not limited to parent teacher interviews, additional classes, school meetings, open days or school concerts;

(b)

The use must be concluded by 9.00 pm and must not commence prior to 7.30 am; and

(c)

The use outside the hours specified in Condition 9 shall not occur on more than 12 occasions in any year, except with the prior written consent of the Responsible Authority.

11 The number of enrolled students must not exceed 150.

12 Before the use starts the permit holder must provide water to the site to the satisfaction of the Responsible Authority.

13 The loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be carried out entirely within the site and must not interfere with other traffic.

14 At all times during the operation of the use, there must be present on the premises a person, over the age of 18 years, who is responsible to ensure that the activities on the premises and the conduct of persons attending the premises, do not have a detrimental impact on the amenity of the locality, to the satisfaction of the Responsible Authority.

15 External sound amplification equipment or loudspeakers must not be used for announcements, broadcasts, the playing of music or similar purpose.

16 Security alarms or similar devices must be of a silent type approved by the Standards Association of Australia and must be connected to a registered security service.

17 Outdoor lighting must be baffled and/or located to prevent light causing detriment to neighbouring properties to the satisfaction of the Responsible Authority.

18 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

19 This permit will expire if the use is not commenced within three (3) 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 (3) months afterwards.

Mr G. Purcell of Counsel, by direct brief. He called evidence from the following persons:

• Mr Peter Edwards, Traffic Engineer with John Piper Traffic Pty Ltd;

• Ms Julie Sale, Teacher at Little Yarra Steiner School, Yarra Junction;

• Mr Darcy Duggan, Environmental Management Consultant;

• Mr Alex Podolinsky, founder of the Warrenwood Steiner School and exponent of Bio-Dynamic farming practices.

• Mr Steven (Mango) McGuire, Dandenong Ranges Steiner School Teacher.

Ms Tania Cincotta, Solicitor with Best Hooper Lawyers

• Mr Craig Porter of Counsel, instructed by Falcone & Adams, Lawyers. He called evidence from Mr John Upton, noise assessment consultant with Shelburg Acoustics Pty Ltd. He also called the following respondent objectors to give testimony as to their concerns about the proposal:

Lawrence Penpraze, David Ryan, Dorothy Brown and Neville Boucher.

• Ms Rosalie Counsell and Ms Rosemary West appeared in person and on behalf of the Green Wedge Coalition Inc.

1 Following Melbourne Water's abandonment of it's approximately 4 hectare Cardinia Reservoir Works Depot in Duffys Road, Narre Warren East, the land was subdivided into three lots and re-zoned[1]. Two of the lots contain existing dwellings. The remaining lot, of 1.657ha and which is the subject of this application for review, contains the depot's former offices, workshop, truck maintenance/inspection ramp, storage and propagation sheds.

2 All lots are set in landscaped surrounds. In the case of the subject land the site also includes extensive paved areas and, towards the south-eastern end, a mostly undisturbed area of remnant bushland. The bushland occupies about one third of the site and extends down slope to eventually link with Parks Victoria's Crystal Creek Recreation Reserve, which adjoins the Cardinia Reservoir.

3 This proceeding is about whether this former depot should be used as a school for up to 150 primary level students, whether such a use is appropriate outside an urban area, whether the access would be safe and the provision to be made for parking, sufficient, and whether the noise of children at play would be detrimental to the amenity of nearby residents - in particular those occupying the former Melbourne Water dwellings.

4 A threshold issue, and therefore one to be determined at the outset, is whether, given the size and proposed layout of the site, the proposal can be described as an education centre used in conjunction with agriculture or natural systems. Unless a functional nexus between education, agriculture and/or natural systems can be established, the use is prohibited and no planning permit can issue.

5 The Dandenong Ranges Steiner School currently operates out of a Council owned community hall and a former restaurant, adjacent to Puffing Billy's Menzies Creek train station. The school has a current enrolment of 85 students[2] and the permit application seeks approval for up to 150 primary school students[3]. The school would commence by converting and extending the former works depot buildings to a multi-purpose hall, class rooms and administrative offices. Over time, as enrolments increased, more classrooms would be added. A set of master plans accompanied the application depicting possible future classroom layouts, access and parking arrangements, and play areas, as well as areas to be maintained as natural bushland and areas to be developed and used for active plant propagation and cultivation as part of the school curriculum. Towards the end of the hearing the school confirmed that Master Plan Option B, as described on a plan No. NPB3 dated March 2005 and tendered on the final hearing day, was its preferred option. Importantly, the application seeks permission solely for the use of the land. Subsequent development, which would require separate planning approval, would be based on the layouts depicted on the Master Plan.

6 The application for permit was lodged with the Shire in February 2004. The application was referred internally to various council departments, including to the environmental officer, transport engineer and strategic planner. None objected to the application, although reference was made to their understanding of the threshold issue of use in conjunction with agriculture or natural systems.

7 Following the giving of public notice of the application, eight objections were received from nearby households and two from community groups.

8 In August 2004 the Cardinia Shire Council considered the application and consistent with its officer's recommendation, determined to refuse to grant a permit on the following grounds:

1. The use of the land is not "in conjunction with agriculture or natural systems" and therefore does not comply with the provision of Clause 57 Core Planning provision for Metropolitan Green Wedge.

2. The use will result in a loss of amenity to the surrounding area through an increase in traffic and noise in the locality.

3. The use is not compatible with the surrounding locality.

4. The proposal fails to comply with the objectives of the Green Wedge.

9 This proceeding is an application under Section 77 of the Planning and Environment Act 1987 (P & E Act) to review that decision.

10 The hearing occupied three days. Prior to the final day I inspected the land and adjoining and nearby land, as well as the existing Menzies Creek school site.

11 With the exception of Mr Penpraze, Ms Brown and Mr Boucher who made oral presentations, the parties or their representatives and the persons called to give evidence tabled and spoke to written submissions or reports. These, together with the various plans, photographs and other documents tendered in the course of the proceeding have been attached to the Tribunal's file.

12 Following the hearing and with leave from the tribunal, the respondent parties were provided with and took the opportunity to file and serve closing submissions and to refer to the Masterplan tabled on the final day. The school was given leave and took the opportunity to file and serve a submission in reply. I have read and taken these submissions into account in reaching my decision.

13 At the time the application for permit was lodged with the Shire, the land was zoned Environmental Rural under the Cardinia Planning Scheme. The purpose of this zone, in addition to implementing the State and Local Planning Policy Framework, is:

•

To give effect to the environmental outcome specified in the schedule to this zone.[4]

•

To conserve and permanently maintain flora and fauna species, soil and water quality and areas of historic, archaeological and scientific interest and areas of natural scenic beauty or importance so that the viability of natural eco-systems and the natural and historic environment is enhanced.

•

To encourage development and the use of land which is in accordance with sound management and land capability practices and which takes into account the environmental sensitivity and the bio-diversity of the locality ...

14 Within this zone education centre is a Section 2 use, meaning that a permit is required pursuant to Clause 31.01-2 of the scheme. However, in June 2003, prior to the application being lodged with the Responsible Authority, the Clause 57, Metropolitan Green Wedge Land provisions were introduced and with these, the Core Planning Provisions at Clause 57.01 and the table to that clause. The table provides that for land outside the Urban Growth Boundary (which is the case here) an education centre is prohibited unless the conditions set out in the table are met. The conditions to be met are:

Must be used in conjunction with Agriculture, Natural systems, Outdoor recreation facility, Rural industry, or Winery.

No more than 150 students may be present at any time.

15 In May 2004, as part of the implementation of the Green Wedge initiatives in the Metropolitan Strategy - Melbourne 2030, and following lodgement of the application, the land was rezoned to Rural Conservation 2. Within this zone an education centre is prohibited outright. However, the Transitional Arrangements at Clause 57.02 provide, in effect, that applications lodged prior to 19 May 2004 must be assessed as though this zone had not been introduced. Accordingly this an application made under the Environmental Rural Zone provisions, as further confined by the Core Planning Provisions. It should also be noted that the land is within an Environmental Significance Overlay - Schedule 1. Because the application is for use only, the provisions of the Overlay are not invoked. Relevantly however the objectives of the Overlay have much in common with the purposes of the zone, that is they recognise the environmental values of land and seek to ensure that these are considered and protected.

16 Clause 65 of the Scheme sets out decision guidelines that must be considered as appropriate before deciding on any application for permit under this Scheme. This clause commences with the following relevant statement:

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

17 The decision guidelines of greatest relevance to this application were referred to in detail in the written submissions of the Responsible Authority and permit applicant. They include the Metropolitan Strategy - Melbourne 2030, the provisions of the State and Local Planning Policy Framework relevant to containing metropolitan growth and protecting Melbourne's green wedges, the purpose of the zone and other relevant controls, the matters required to be considered under the zone provisions, the orderly planning of the area and any effect on the amenity of the area.

18 As noted earlier, a threshold issue in this case is whether the Dandenong Ranges Steiner School's occupation of this land could be characterised as an education centre used in conjunction with agriculture or natural systems.

19 Agriculture, natural systems and education centre are all defined terms in the Cardinia Planning Scheme.[5] The expression in conjunction with is not. Accordingly, as provided for at Clause 71 of the Scheme, the term is to be given its ordinary meaning. All of the parties to this proceeding relied on the Macquarie Dictionary definition of conjunction namely the state of being conjoined; union; association. I was also referred to a number of Victorian Tribunal decisions and to decisions of the New South Wales Land and Environment Court that had considered the meaning of the expression. In the case of the NSW decisions the Court had also relied on the Macquarie definition. The VCAT decisions made no such reference.

20 Having considered the submissions, further submissions and evidence concerning the nature of Steiner Schools, their history, philosophical basis, curriculum and the means by which the curriculum is developed and passed on, it is my conclusion that as a general principle the Steiner School curriculum is best taught in a location or environment where there is an opportunity for the students to engage both functionally and aesthetically with agricultural pursuits and natural processes.

21 I am persuaded also that, considered as a whole, and taking into account what might be an appropriate scale of activity that could be said to be commensurate with the skills and capabilities of primary level school children, that the proposal can be said to constitute a conjunction, union or association of education with agriculture, i.e. plant propagation, cultivation and harvesting, and natural systems, i.e. maintaining, improving and learning from and about the ecological values of the site's remnant bushland and its association with adjoining bushland.

22 The case put by and on behalf of the school is usefully summarised in the following extract from Mr Purcell's written submission:

The evidence before the Tribunal establishes that agriculture, within its defined meaning in the Planning Scheme, will be conducted as an integral part of the school curriculum. The agriculture to be carried out will include the cultivation of plants including flowers, fruit, seeds, trees and vegetables and the keeping of small animals like chooks.

While the agriculture will be small in scale and may not be for commercial gain, it will be conducted as a scale and intensity appropriate to the site and to the age of the children and their learning needs. The engagement of children in planting, weeding and harvesting will form a structured part of their curriculum and will facilitate their understanding of food production and its relationship to the natural environment. The children will not merely have an interest in these agricultural activities (the minimal requirement suggested in Sweeny) they will be directly involved with them.

The contention by the Responsible Authority and the Green Wedge Coalition that these agricultural activities are a 'token gesture' or a 'token use' reflects a lack of understanding of the kind of activities permitted by the Planning Scheme and the important function they serve in the education of children in accordance with the Steiner philosophy. The definition of agriculture is very wide and is not limited by prescription as to minimum size of the site or whether or not the activity is for commercial purposes.

Moreover a broad construction of the term 'agriculture' must be given to accord with Clause 21.06-2 of the Municipal Strategic Statement - Strategies for Agriculture:

•

Encourage research and education in relation to agricultural activities.

•

Encourage responsible land management to minimise environmental degradation by pest plants and animals.

It is also intended that the proposed school will operate in conjunction with natural systems. The remnant bushland area identified in the horticultural report by Mr Duggan remains in its natural state (although degraded to some extent by introduced weeds/species) and is a small eco-system which should be preserved and protected. Alternatively it is an area of aesthetic significance which should be preserved.

The school will be able to use the remnant bushland as part of the education of children on the natural environment, who walks in this area and collection of nuts, leaves and other natural products of the bush. It will also be able to protect and preserve the area by weed identification and removal. Again these activities will not be merely incidental to the use of the site for a school but will form an integral part of the education of children in the relationship between humans and the natural environment. ...

Agriculture and nature systems form a key part of the curriculum as indicated here. However a most important aspect is the child living in nature, experiencing and exploring its beauty and developing a sense of reverence for the world which is otherwise difficult in our throwaway society.

Recognition is also given to awareness and atunement to the rhythms and archetypal forces around them. This in part is achieved by children experiencing the seasonal cycles in nature. In particular the symbology of experiencing the seed crop plant cycles unlocks the secrets of life on a soul level for the children. This as a doctrine is untouched by other schools.

It is a well accepted principle in both mainstream and Steiner education that children learn more from simply experiencing and living in the environment around them as distinct from any direct discourse. Steiner education considers that if we are to successfully educate a child their sense perceptions must be immersed into the stimuli of a natural environment so that they can find themselves in harmony with the world. Steiner education works actively upon this principle.

23 It was the evidence of Mr McGuire that while Steiner schools do exist within urban areas - including inner-urban areas - the nature of the Steiner curriculum is such that it is best provided or carried out in places where the natural environment is on hand or available both in an aesthetic sense - as a setting or reminder to students about the natural world - and as a vehicle or object for study and practical application.

24 I accept that the evidence in this case points to a greater than what could be said to be usual association or need for co-location between a school and natural bushland or farmland. Even Steiner's city based campuses, from my reading of the web page list of Steiner schools in Australia, provided by Mr Porter, exhibits a greater propensity than usual for co-location with remnant bushland or parkland or in the case of the Sofia Mundi School in Abbotsford, with the Collingwood Children's Farm.

25 I agree therefore with Mr Purcell that the average man in the street would be capable of detecting this natural world/farmland association as a distinguishing feature of a Steiner school. I also accept Mr McGuire's evidence that while not impossible for the Steiner curriculum to operate in the absence of a close association with places in their natural state or farmland, a close association is to be preferred.

26 It seems to me therefore that rather than being said to fall within a class of urban uses which both State and Local Planning Policy, and in particular the Metropolitan Strategy, encouraged to locate inside the urban growth boundary or within defined townships, a Steiner school presents as an exceptional circumstance. Even the Compass ABC TV transcript, provided by Mr Porter, concludes by suggesting that Steiner's legacy in Australia has less to do with theological discourse than practical work. As the narrator concludes:

What is known and ultimately judged though are what many see as impressive practical work in medicine, agriculture and education. (Emphasis added)

27 The fact that agriculture is not to the fore in this transcript seems likely to stem from the fact that it comes from the ABC's Sunday night religion programme, rather than, for example, Countrywide or Bush Telegraph..

28 It follows from the above that I am persuaded that the proposed use is not prohibited under the Core Planning Provisions at Clause 57.01 because, to use the terminology applied by the Land and Environment Court in Winton Property Group v Campbelltown City Council [1999] NSWLEC 241, there will be a functional nexus between the education use, agriculture and natural systems. While in Winton it was found that this nexus need not extend to interdependence or a necessarily close association, in the subject case there will be considerable interdependencies and a close association. Furthermore, in view of the primary level nature of the school, I see no reason why the scale or extent of horticultural activity and bushland nurturing should not be to a scale commensurate with the capabilities of primary level children. The planning scheme places no limitations on scale, nor does it require commercial application. There are many places in the world where subsistence agriculture is practiced without involving commercial application and where the activity is small scale, commensurate with the needs of the particular family or clan group.

29 Having set out my conclusions in relation to the threshold issue, my reasons in relation to the other issues for consideration in this case, follow.

30 It was the evidence of Mr Edwards, assuming present levels of car pooling, that the 140 vehicles per day (120 parent trips and 20 staff trips) likely to be generated by a primary level school of up to 150 pupils and 10 staff could safely access the site via Duffys Road, including through the Wellington Road/Cardinia Creek Road intersection. As he acknowledged, the school will not as a rule be open during weekends when decidedly greater numbers of vehicles - i.e. up to 1000 per day associated with the adjacent Cardinia Reservoir park - navigate the same road network.

31 The Wellington Road/Cardinia Creek Road intersection incorporates sheltered left and right turn lanes providing access into Cardinia Creek Road. Cardinia Creek Road is also flared to allow left and right turn vehicles to enter Wellington Road simultaneously. It was Mr Edwards' evidence that these treatment were likely to have been provided in order to service the large number of visitors to the reservoir park. The proposed use can take advantage of this local infrastructure.

32 Mr Edwards' evidence is also corroborated by the memorandum from the Council's Development Engineer who, having evaluated Mr Edward's report agreed with the conclusions reached. He also observed, however, that an increase in traffic in Duffys Road and along the shared access drive to the former depot site, could impact on the amenity presently enjoyed by existing residents. A question to be decided therefore is whether this change is reasonable. In this regard I find it relevant to take into consideration the previous depot use, the existing levels of traffic at weekends, due to the proximity of the Reservoir Park and the fact that most traffic movements would be confined to the morning and evening pick up and drop off period on week days and during school term times. Given these factors, I am not persuaded that the change would be an unacceptable impost on the amenity of neighbours.

33 A further issue raised in relation to traffic was the fact that trucks carrying Chlorine use Duffys Road to access Melbourne Water's water quality plant. These trucks are required to take as safe a route as possible. While the trucks may need to be more mindful of their days and hours of travel, I am not persuaded that this is a reason to refuse a permit.

34 Concerns were also expressed about siting a primary school outside a defined township. It was submitted that this would lead to unnecessarily high vehicle usage and was contrary to the Metropolitan Strategy for schools to be located within urban areas, where advantage can be taken of public transport and pedestrian access. However, because the school's catchment is regionally rather than locally focussed the propensity for children to walk or for significant public transport use will be slight wherever the school is located. This much was acknowledged by the Council's Strategic Planner who made the following comments in relation to the permit application:

The school is not serving a local catchment but a regional catchment and the majority of its students would travel by car regardless of its location. Recent discussions with the applicant suggest that 'off the hill' sites will have to be considered if this application fails leading to significantly more kilometres per student travelled. I don't believe this would be a good outcome. (Emphasis added)

35 I agree with the Council's Strategic Planner. This is not to say, as discussed in the course of the hearing, that the school would not be well advised to consider the provision of a school bus system or formal car pooling systems as a means of living up to its own environmentally sustainable philosophies. In this regard the State Government's recently initiated TravelSmart to School programme could prove useful and may stand as an incentive for reducing the ratio of parking required to be provided on site.

36 Turning now to off-street parking, the requirement for parking under Clause 52.06 of the Planning Scheme is for one space per primary school employee. Mr Edwards based his evidence on instructions that up to 10 staff would be required once enrolments reached 150 students. At present the school caters for 85 students. The intention would be to grow over time. It was Mr Edwards' evidence that despite meeting the scheme's off-street parking requirements, and therefore not invoking the need for a permit to reduce this requirement, provision ought to be made for parents dropping off and waiting to pick up their children. It was his evidence that with enrolments of 150 students and allowing for 40% car pooling/sibling, the provision of 40 spaces - allowing 10 for staff and 30 for parents (i.e. 0.2 spaces per student) would be adequate. At the hearing he also confirmed an agreement with Melbourne Water for the school to operate a one-way route through the parking areas/access drive - entering from the shared northern entry and exiting via the Cardinia Reservoir Park Road.

37 I accept Mr Edwards' evidence that in relation to dropping off students in the morning the provision to be made for parking and drop-off is generous. In relation to the afternoon pick-up it was Mr Edwards' evidence that the time lag involved in moving students from the class room to a parent pick-up vehicle is greater than in the morning, making for a less efficient use of the available spaces. Nevertheless, it was his opinion that with 30 spaces plus a three bay drop off zone, there would be sufficient capacity over the 20 to 30 minute pick up period to accommodate the demand and without the need to spill over to Duffys Road. It was his evidence also, however, that even if a spill occurred on Duffy's Road, that around a dozen informal parking spaces could be comfortably accommodated on the shoulder and verge without significantly impacting on the operational safety of the road.

38 I also accept Mr Edwards' evidence in relation to the use of the Melbourne Water owned extension to the site's side driveway - now transferred to the Council. In his opinion the one-way access was the preferable outcome but that it would be improved by minor benching to improve sight lines at the Duffys Road intersection with the Park exit road.

39 The respondent objectors located opposite and next door to the east of the site, being the Penpraze's, the Browns and the Bouchers, expressed particular concern at the prospect of the proposed use causing a disturbance to the peaceful enjoyment of their properties. In support of their concern Mr Porter called evidence from Mr John Upton a noise assessment consultant.

40 I found Mr Upton's evidence to be unhelpfully partisan and not especially thorough. In particular he had failed to apply his noise level estimates to the actual neighbourhood context, and in particular had ignored noise attenuation over distance as well as attenuation due to the proposed 2m high strawbale wall proposed along the Brown's side boundary. His choice of location for assessing background noise levels also failed to acknowledge that the sensitive receptors, that is to say local residents, are closer to the road and generate their own domestic and other ambient noises that to some extent would mask the sounds of the school. In drawing his conclusions about nuisance, Mr Upton also placed little emphasis on the limited times when children might be outside at play (as opposed to instruction) and the fact that no impact will occur at weekends, outside of school hours or during school holidays. Interestingly also he had made no enquiries into relevant VCAT decisions as to the character of the noise from children at play and the degree to which this can reasonably be regarded as annoying.

41 Mr Purcell's submissions were more helpful and ultimately more persuasive. The following extract from his written submission provides a useful appraisal, applying the noise levels suggested by Mr Upton:

Although play areas may be noisy during school lunch and play times, after 3 pm and on weekends the school will be quiet.

Public address systems and loud speakers will not be used at the school. Each teacher will have their own small hand held bell for calling his or her children.

There is no legislational policy in Victoria which specifically governs the noise emitted from children in a school.

The New South Wales Industrial Noise Policy, Table 2.1 Amenity Criteria (included on the following page) states that the recommended LAeq noise levels from industrial sources - active recreational areas (eg school play ground, golf course) states that the recommended acceptable noise level is 55 dB(A) with a recommended maximum noise level of 60 dB(A).

2. Attenuation rate is 6 dB(A) per doubling of distance.

3. Average noise levels of the school are 72 dB(A)

Then the estimated maximum noise level at the residence that is 63m away is 45 dB(A) and at the residence 110m away, 40 dB(A) ...

There have been a number of cases before VCAT that have addressed the noise from children playing outside schools and indicate that the Tribunal considers that noise from children playing in schools does not have to be inaudible at the adjacent residential property and is not considered an unreasonable or offensive noise.

42 I am satisfied that with the inclusion of the 2m high straw bale wall and having regard to the days and times that the school will be open, that the outcome in relation to noise is not unreasonable.

43 Concern was also expressed by or on behalf of the respondent objectors about the possibility of an increased risk of bush fire due to the presence of up to 150 young children in this mostly bushland neighbourhood. While no Wildfire Management Overlay affects the land, it was suggested that a control to this effect might be pending. As I stated in the course of the hearing I am aware of schools within such areas that address this issue through the adoption of an emergency management plan and it was submitted by Mr Purcell that such a plan was envisaged and that its preparation would include input from the CFA.

44 Unlike uses with temporary occupation such as educational centres offering short courses, or tourist accommodation, a school can be expected not only to have an emergency management plan but to drill the students on a regular basis as to the procedures to be followed in the case of such events.

45 Very few parts of rural Victoria can be guaranteed safe from bush fire or grass fire during the fire season. However, given the buffer afforded by the horticulture areas, play areas, road and access track, the dual access arrangement, the sites reasonable proximity to the reservoir and the ability for an emergency management plan to be incorporated into the school curriculum, I am not of the view that fire is a reason to refuse a permit in this instance.

46 The final issue of substance in this proceeding is the fact that the permit application is for use of the land only and it is the school's intention to apply separately for planning permission to construct any new buildings and works required to accommodate the use, over and above the existing structures on the land. Because the school has a current enrolment of only 85 primary school students and the application seeks approval for a school for up to 150 students, construction of classrooms is likely to be staged over time as enrolments increase.

47 The documentation accompanying the application included three optional master plan layouts. By the close of the hearing Option B3 as depicted on a plan dated March 2005 was identified by the school as its preferred layout depicting, among other things, the extent of areas to be set aside for horticultural activities and the likely nature of those activities.

48 I see no reason why a permit for the use of this land should not refer to the master plan as a condition of the permit. This would or could ensure that future development of the land was consistent with the master plan - which is not an unusual outcome for school proposals. The master plan assists in describing and defining the nature of the proposed use, in particular the extent of areas to remain as natural bush and areas to be set aside for the horticultural activities which the educational usage is to be associated with. A condition of permit requiring future development to be generally in accordance with the master plan, to the Council's satisfaction, can ensure that the nature of the use is not altered by any future development and at the same time provide a framework for such future development.

49 The Responsible Authority's draft conditions were not particularly helpful as a mechanism for referring to a master plan and ensuring future development was generally consistent with that plan. I am satisfied, however that with suitable rewording the conditions of the permit can ensure an appropriate outcome. In particular conditions can address issues such as the preparation of environmental management plans, an access and parking plan and an emergency procedure plan. The Council's suggested conditions, while referring in a general way to conditions of this sort, were not as comprehensive as they could have been. Accordingly I have made what I consider to be appropriate changes and additions to better reflect the special nature of the proposal.

50 This Tribunal, standing in the shoes of the Responsible Authority is required to decide whether the proposal before it achieves an acceptable outcome in terms of the decision guidelines of the Scheme.

51 It is my conclusion that use of this well accessed, former works depot and remnant bushland, for a small primary school, desirous of taking advantage of the natural setting and the site's opportunities for horticultural pursuits - at a scale commensurate with a primary level education centre - seems an eminently suitable or acceptable outcome.

52 The purposes of the Environmental Rural Zone - including the outcomes specified in the Schedule to the zone - refer to protecting and conserving the environmental values and landscape qualities of land, conserving native vegetation and encouraging uses which adopt sound management and land capability practices. In addition, the environmental objectives of the Local Planning Policy Framework seek to ensure that proper consideration is given to environmental issues and that the environment is recognised as a key element in achieving sustained economic growth and a high standard of living for the community of Cardinia. Furthermore, strategies for achieving this objective include encouraging and supporting community based environmental groups such as Landcare. In the context of these objectives a school distinguishable for its emphasis on promoting stewardship of the natural world and teaching practices directed towards a more sustainable use of the planet and its resources seems an eminently suitable use. I am persuaded therefore that with suitably drafted conditions, to prevent unreasonable detriment on the amenity of nearby residents and to ensure that the use operates as described to me in the course of my consideration of the proposal, the use of this land for a primary school in conjunction with agriculture and natural systems represents an acceptable outcome in terms of the decision guidelines of the Cardinia Planning Scheme.

[1] Amendment C27 Gazetted 18 April 2002 rezoned land from Public Use Zone 1 to Environmental Rural with an Environmental Significance Overlay

[4] the outcome in the schedule is; protection and conservation of the environmental values and landscape qualities of the land, including habitats of botanical and zoological significance, and the conservation of natural resources, including native vegetation, waterways and soils.

(a) Propagate, cultivate or harvest plants, including cereals, flowers fruit, seeds, trees, turf and vegetables;

(b) Keep, breed, board or train animals, including livestock and birds; or ...

Natural Systems Land in substantially its natural state which is used to maintain ecological systems, or to preserve an area of historic, scientific, aesthetic or cultural significance.