1. The decision of the Responsible Authority is set aside. In permit application 2012/58 no permit is granted.

Ms Helen Weston, town planner of Environmental Affairs.

Use and development of the land for a 40 place childcare centre.

An existing dwelling will be modified to accommodate the centre. Three age groups of children in three separate rooms are proposed comprising:

• 20 places for children aged six weeks to 3 years,
• 10 places for children aged 3 to 4 years, and
• 10 places for children aged 4 to 6 years.

Proposed operating hours are 8am to 6pm Monday to Friday.

Fourteen staff (11 full time and 3 part time staff) will work at the centre.

Two outdoor play areas are proposed, comprising one area on the east (front of the building) and one area to the south (approximately 30 children) adjacent to the side boundary in common with No. 26 Yana Street.

Carparking is proposed in two locations comprising nine spaces for parents and one disabled bay at the front and staff parking at the rear.

Section 82 of the Planning and Environment Act 1987.

• Low Density Residential Zone (LDRZ).
• No overlay controls apply.

• Clause 32.03-1 - Use for childcare centre (LDRZ).
• Clause 32.03-4 - Buildings and works (LDRZ).

• Clauses 10, 11, 19, 21.04 and 21.10.
• Clause 65.

Located on the west side of Yana Street, the review site has a 40m frontage, depth of approximately 195m and area of 7,810sq.m.

The land is developed with a single storey dwelling, setback approximately 57m from the frontage. A shed and dam are located at the rear. Extensive landscaping is located in the front garden area and planting also exists along the site boundaries.

The site is one of 7 similarly sized lots on this side of the street developed with dwellings. Larger lots used for grazing and the like but similarly zoned LDRZ is located to the west. The Swan Hill Primary School is located further north on the corner of Gray Street and the Ken Harrison Sporting complex is located further south. The Swan Hill Special school is on the opposite side of the street with smaller residential properties zoned Residential 1 on either side.

Sal Corporation Pty Ltd v Swan Hill Rural CC [2013] VCAT 692.

Lunder v Casey CC [2007] VCAT 190.

Carrafa v Nillumbik SC [2004] VCAT 1904.

Filiposki v Murrindindi SC [2009] VCAT 2667.

Filiposki v Murrindindi SC No. 3 [2013] VCAT 475.

Petzierides v Hobsons Bay CC (includes Summary) (Red Dot) [2012] VCAT 686.

Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259.

Lloyd v Ballarat CC [2005] VCAT 515.

1. This case concerns a proposal for use and development of the land for a 40 place child care centre on a large lot of 7,810sq.m in Swan Hill.
2. Following public notice of the permit application which attracted 4 objections from local residents, Council decided to issue a Notice of Decision to Grant a Permit subject to conditions.
3. In a joint application lodged by Ms Donnan, the objectors are now seeking a review of that decision.
4. The key issues for consideration in this case are as follows:
   • Is a child care centre an appropriate use for land zoned Low Density Residential in this location?
   • Would the development and use cause unacceptable visual and acoustic amenity impacts?
   • Would the proposal result in any unacceptable car parking and traffic impacts?
5. A number of Tribunal decisions were referred to by the parties in support of their respective positions which I have taken into account. They include:
   • Sal Corporation Pty Ltd v Swan Hill Rural CC [2013] VCAT 692
   • Lunder v Casey CC [2007] VCAT 190
   • Carrafa v Nillumbik SC [2004] VCAT 1904
   • Filiposki v Murrindindi SC No. 3 [2013] VCAT 475
   • Petzierides v Hobsons Bay CC (includes Summary) (Red Dot) [2012] VCAT 686.
6. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Swan Hill Planning Scheme, I have decided that a permit should not be granted. My reasons follow.

Appropriateness of the use in the Low Density Residential Zone

1. Ms Weston questioned the suitability of this site for a child care centre taking into account the zone purposes and amenity expectations of neighbours. It was submitted that aside from low density residential development there is no explicit support for the establishment of a child care centre implicit in the zone purpose.
2. It is true that aside from the standard purpose of the LDRZ to implement the SPPF and LPPF the only other purpose of this zone is:

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

1. That purpose, as the Tribunal observed in Filiposki[1] "clearly establishes the area as being first and foremost about living with all the amenity characteristics that flow from that".
2. Of the decisions referred to above, both Carrafa and Lunder involved proposals for child care centres in a LDRZ for which permits were ultimately granted. In Carrafa, cited with approval in Lunder, the Tribunal said:
   1. I can see no reason why the benefits to the community as a whole of locating child care centers in residential areas ought to be limited to residential areas zoned Residential 1 and excluded from residential areas zoned Low Density Residential.
   2. I agree with the Council and the objectors to the extent that in the Low Density Residential zone, larger than conventional lot sizes will inevitably influence and define the character and amenity of a locality and the appropriateness of a child care center use must be assessed in terms of its impact on that amenity and character. My view in this respect is consistent with another of the Tribunal's consistent and long held principles that the appropriateness of a site's location is paramount in determining whether or not a permit ought to be granted. [My underlining]
3. In-principle, it would be wrong for me to conclude that this site is not suited for a child care centre simply because of its Low Density Residential zoning. Conversely, simply because a permit may be granted, this does not imply that a permit should or will be granted.[2]
4. Rather, in deciding whether to grant a permit, an acceptable outcome must still be achieved with consideration to the state and local policy frameworks, the purpose and decision guidelines of the zone and Clause 65.
5. The proposal's acceptability in this this particular location will also be informed by the site's its broader context and features of the proposal itself including its effects on the amenity of neighbours living nearby.
6. There is limited specific policy guidance for the establishment of child care facilities. However, in broad terms, statewide policy recognises the importance of planning for social and physical infrastructure that enables it to be provided in a way that is efficient, equitable and timely. Policy also provides that planning is to recognise social needs by providing land for a range of accessible community resources, such as education, cultural, health and community support facilities including family services.[3]
7. With this policy context in mind together with the site's broader physical context, I agree with the Council's submission that the site might well be regarded as being suited to a child care centre. Its location near existing educational and community based facilities including two other schools in Yana Street, a kindergarten in Gray Street (700m to the north-east) and the Glenvale School in Cutrier Drive (650m to the north-east) may well produce synergies with this proposal.
8. Other contextual features that weigh in favour of this proposal include the fact that land on the opposite side of Yana Street includes smaller residential lots zoned Residential 1. It was also common ground that Yana Street attracts a reasonably high level of pedestrian, cyclist and vehicle activity. Thus, this site is not located within an area that is solely dedicated to low density residential use and development.
9. There is some uncertainty about the future zoning and development of surrounding land in the Low Density Residential Zone and the subject site itself which both the Council and Ms Weston explained is the subject of a strategic review.[4] The Swan Hill Urban Framework Plan at Map 1 in Clause 21.01-1 of the planning scheme describes the site and surrounding land to the north and west in the following terms:

Longer term serviced urban development opportunities. All development to be consistent with local structure plan showing road layout, existing recreational facilities, open space areas/links and residential density areas.

1. Based on this description and other limited oral submissions at the hearing, I am unable to give any substantial weight to the probability that the zoning of this land may change to a Residential 1 zone or indeed some other zone. In any event, there is a long established principle requiring application of the existing controls as they stand at the time of making my decision.[5] That is the approach that I follow here.
2. This brings me to the proposal's effects on the amenity of neighbouring properties in the Low Density Residential Zone.

1. There are two residential properties with direct abuttals to the site. They are Ms Donnan and Mr Siggins' property to the south at No. 26 Yana Street and Mr and Mrs Power's property to the north at No. 22 Yana Street.
2. It is the proposal's interface with these two residential properties, particularly No. 26 Yana Street, that are most sensitive, given the proximity of the child care centre building, outdoor play areas and car parking areas to the dwellings on these lots. The third property to the rear (west) is quite distant from the childcare building itself and proposed carparks.
3. In assessing the effects of this proposal and with the limited information before me, I have had considerable difficulty determining whether those impacts would be acceptable or not in respect of these two neighbouring residential sites.
4. In particular, I observe that:
   • there is no comprehensive information on the plans accurately showing the location of existing vegetation on the review site and neighbouring land;
   • the location of vegetation to be removed or retained is unknown including the impacts of the development (such as driveway and fencing) upon neighbouring vegetation close to the site boundaries;
   • areas proposed for landscaping are not shown on the plans;
   • the location and type of existing boundary fencing is not shown;
   • there are no details of the location for bin storage areas and proposed waste management arrangements;
   • the location of neighbouring habitable room windows of both dwellings and position of the dwelling and secluded areas of private open space in relation to No. 22 Yana Street is not shown; and
   • the location, design and materials of proposed boundary fencing, especially acoustic fences required by Council's proposed permit conditions is unknown.
5. In relation to the proposal's acoustic impacts, the close proximity of the childcare centre and outdoor play areas to the dwelling and outdoor entertaining areas at No. 26 Yana Street and the location of the car park and driveway to the dwelling at No. 22 Yana Street are particularly important.
6. The absence of any acoustic assessment which measures existing background noise levels, likely noise impacts and any necessary remedial works in the form of acoustic fencing or other acoustic treatment of the building is problematic.
7. I say this because the visual impacts of acoustic fencing and resultant impacts on existing vegetation and landscaping opportunities is an important issue in understanding the amenity implications of this proposal and its effects on the low density, spacious vegetated character of this particular location. Put simply, this is a location where high solid boundary fencing is not a feature of the area's character.
8. I also have considerable reservations about the degree of activity this proposal would generate in such close proximity to the two neighbouring dwellings whose substantial front setbacks otherwise limit their exposure to activity occurring in Yana Street. Given the potential need for acoustic mitigation works in the form of high side fencing to boundaries, the potential off-site amenity impacts arising from this proposal's operation and resultant mitigation works may well outweigh those favourable locational attributes in the broader context that I have identified.
9. A further issue of concern is the design of the driveway and carparking areas. I note for example that the plans indicate that an "all weather surface" is proposed to the parent carpark and driveway areas. I take this to mean that a paved or sealed surface is proposed and this would be a condition on any permit issued. I am concerned about the extent of these works which cover a substantial area of the site, particularly when considered in conjunction with the staff parking area whose driveway and parking area is also large albeit whose design standard and proposed number of spaces is unspecified on the plans.
10. The extent of these driveway and carparking areas is not a characteristic feature of development in this location.
11. It is primarily for these reasons that I am unable to conclude that this proposal would achieve an acceptable outcome and I find that a permit should not be granted.
12. I therefore make only brief findings on other issues raised at the hearing.

Are there any carparking or traffic related reasons that warrant refusal of this proposal?

1. Clause 52.06 of the planning scheme sets out the car parking requirements for various uses including a 'child care centre'. For each child, the standard requirement is 0.22 car spaces, which equates to 8 spaces (rounded down from 8.8 spaces as per Clause 52.06-5). With 10 publically available (parent) spaces on the site and additional staff parking proposed, no permit is required for his aspect of the proposal. Thus, issues in relation to overflow parking in Yana Street are not before me.

1. In relation to traffic impacts, I note that Yana Street is within a Road Zone Category 2 and it was common ground that the street is a busy one that attracts school and through traffic. While it would have been helpful to have some information about existing traffic volumes, I am doubtful that this proposal would exceed the road carrying capacity of Yana Street or the surrounding road network.

1. I accept that the additional traffic generated by this proposal will necessitate a degree of caution by all road users. There is however no traffic engineering evidence before me to indicate that this proposal should be refused on this basis.

1. I adopt the long held principle that the need for a facility is rarely if ever a reason to refuse an application.[6] Conversely, I accept that need for a facility, particularly where there are significant community benefits to be gained, may weigh in favour of the grant of a permit and in some circumstances may outweigh amenity considerations. While some general submissions in anecdotal terms were made by the Council and Hartshorns about the need for additional child care places in the region, I am unable to make any conclusive findings about the issue of need one way or the other.

1. Objectors submitted that notice of the permit application and the timing of meetings during the processing of the permit application did not accord with principles of procedural fairness to third parties. My task is not to review any such allegations other than to observe that this matter has been brought before me on review by third parties who became aware of this proposal during the permit application stage.

1. If a proposal for a child care centre is to be pursued on this site, consideration needs to be given to locating outdoor play areas (and the outdoor staff area) further away from neighbouring site boundaries, the dwellings themselves and other sensitive neighbouring outdoor areas. This may assist in limiting the degree of activity and noise impacts and thus the extent of and need for any acoustic fencing adjacent to both neighbouring residential properties. That may necessitate a substantially different building design and reconfiguration of the carparking layout. In the absence of further detailed information of the kind I have described in my reasons, these concluding remarks should not however be taken to mean that a permit would then be granted.
2. For the reasons I have set out, the decision of the Responsible Authority is set aside. I will direct that no permit is to be granted.

[1] From Filiposki v Murrindindi SC [2009] VCAT 2667 at paragraph 37 cited with approval in Filiposki v Murrindindi SC No. 3 [2013] VCAT 475.

[2] See Clauses 31.02 and 65 of all Victorian Planning Schemes.

[3] See Clauses 11 and 19 of all Victorian Planning Schemes.

[4] The Swan Hill Residential development Strategy 2006 - 2030 (Final Report June 2006) adopted in 2006 and which I understand is currently under review.

[5] See Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259.

[6] See for example Lloyd v Ballarat CC [2005] VCAT 515.