1. I accept that a child care centre can be contemplated in the NRZ with such use supported by the purpose of the zone.
2. In the context of this site I have two concerns about location.
3. Firstly, the extent of non-residential uses in the street is substantial. In addition to a primary school, child care centre and church, there is a factory. This is unusual in a residentially zoned area and reflects an historical circumstance whereby the industrial use established prior to planning controls that would currently prohibit such use in a residential zone.
4. Although this street is not a pristine residential setting, I have concerns that the proposal will result in a cumulative negative impact on the residential aspect of the immediate area. This concern arises from the location of the site in close proximity to the factory and the church that already create a non-residential presence in this part of the street. The presentation of the car park in the front setback is a key concern in creating the negative impact to the streetscape and is a matter I address in assessing neighbourhood character.
5. My second concern is the location of the use between two existing dwellings that are flanked by a factory (south of 20 Armstrong Road) and a church (north of 16 Armstrong Road). The approval of the proposal would result in 16 and 20 Armstrong Road being isolated residential properties between three non-residential uses. Land use planning principles would generally seek to avoid this outcome for a variety of reasons. These include potential adverse impacts to neighbourhood character, loss of amenity for existing residents and pressure for additional non-residential uses to establish with potential ribboning of commercial development in a residential setting.
6. I acknowledge Mr D'Amico's view that the residential interfaces to the rear and opposite 16 and 20 Armstrong Road would retain connection between residential properties. However, I am not persuaded that the extent of isolation of the two residential properties in this section of the street that would be created by approval of this proposal is acceptable.

IS THE LAYOUT AND BUILT FORM AN APPROPRIATE RESPONSE TO NEIGHBOURHOOD CHARACTER?

1. Council submits the scale and size of the proposal will be entirely out of keeping with the character and landscape of the locality. Specifically, Council highlights the following deficiencies of the design response:
   • The development footprint is excessive (combination of building and car parking areas) and fails to provide appropriate area for landscaping.
   • The location of the car park in the front setback and the double width crossover will unacceptably dominate the site and streetscape in stark contrast to the established front garden character of this location.
   • Removal of a street tree and limited landscaping opportunities on-site is a poor response to landscape values.
2. When tested against neighbourhood character policy, Council says the proposal fails to strengthen corridors of native trees, to achieve setbacks that reflect the established pattern and to provide space for the retention and planting of substantial vegetation. Council says the double width accessway, the pedestrian path and the expansive car parking will be intrusive in the streetscape and inconsistent with the preferred character that seeks to add a sense of green enclosure to the streetscape.
3. In assessing neighbourhood character, Council says it is relevant that the Planning Scheme makes a distinction between sites on the eastern and western sides of Armstrong Road. The western side, that includes the review site, is within a NRZ2 and subject to DDO2. This is distinct from the eastern side of the street which is within a NRZ3 and not affected by the DDO2. Whilst a permit is not triggered under DDO2 for the proposal, Council say it is relevant that the overlay includes a minimum mandatory subdivision area of 864 square metres. This control will limit future residential development and temper the extent of change in neighbourhood character on the west side of the street, a circumstance which should be considered in assessing the design response.
4. Council says that the existing non-residential developments were developed under different planning regimes and should not provide design cues to guide new development.
5. Respondents submit the proposal would be at odds with the neighbourhood character, particularly the extent of car parking presenting to the street. They say the proposal fails to make a positive contribution to the streetscape and would detract from the landscape setting and the residential feel of the area.
6. The applicant says the starting point for considering the acceptability of the built form is an acknowledgement that this proposal, by virtue of its purpose, will be different to traditional housing stock. The applicant refers to a Tribunal decision[8] relating to a child care centre where it was found:

...the issue is not so much that building forms are different, or that car parking arrangements are different or that the approach to landscaping is different. Rather, the issue is have these differences been managed with sufficient care to be acceptably responsive to the broader neighbourhood character.

1. The applicant submits the proposal is consistent with the prevailing built form and landscape character having regard to the following features:
   • The building is domestic in scale, single storey and designed to follow the topography of the land. This design is consistent with the character guidelines that seek low scale building forms that are nestled into the landscape.
   • The site coverage at 23.3% is low, well below the 60% allowed for under ResCode and below the 40% specified in the SLO3 to trigger a permit.
   • The setbacks are well in excess of the varied ResCode standards in Schedule 2 to the NRZ.
   • There is generous landscape opportunities especially in the front setback and surrounding the car park.
   • The proposed crossover will not be intrusive in a setting where there are lots with two crossings and with hard surfaces in the front setback. The width is 26% of the frontage which meets the 33% allowed under ResCode and the crossing will be in a landscaped setback.
2. The applicant says the existing non-residential development in the street, irrespective of the planning controls when built, forms part of the context in which the application is to be considered. In response to the distinction between planning controls on each side of Armstrong Road, the applicant says the difference is primarily relating to subdivision lot size and both sides are subject to the SLO3 and within the same neighbourhood character precinct.
3. It is the evidence of Mr D'Amico that the proposed built form provides a positive response to the preferred future character for the Neighbourhood Character Area 16 and to the guidance provided in local policy. He says:
   • The building will nestle into the landscape given the single storey and skillion roof design and use of cut towards the frontage.
   • The vegetation removal proposed is acceptable given replacement planting proposed.
   • Setbacks to all boundaries allows for canopy tree planting.
   • Although a street tree is to be removed, there is sufficient nature strip available for planting a new street tree.
   • The proposed landscaping will enhance current site conditions.
   • No front fencing is proposed and planting is proposed across the frontage.
   • The central placement of the driveway avoids the appearance of a gun barrel driveway and landscaping will filter views of the car parking.
   • Although the crossing is wider than the 5.5 metres sought by Council, it enables appropriate passing opportunities.
4. It is the evidence of Mr Patrick that the proposed landscape scheme meets the expectations for Neighbourhood Character Area 16 by providing a green, leafy front setback that will contribute to the streetscape and tree canopies that will extend above built form with native trees dominating the planting palette. In response to questions about the loss of the street tree, he said that relocation of the crossing approximately 1 metre to the north may allow retention of the tree but acknowledged no investigation to confirm this outcome has taken place.

1. There is emphasis in the Planning Scheme on ensuring development respects the identified neighbourhood character and landscape characteristics and responds to context. This outcome is sought in the purpose and decision guidelines of the NRZ, State[9] and local[10] policy and the SLO3.
2. The local policy relating to residential neighbourhood character applies to all development in the NRZ[11] and seeks to ensure development contributes to the preferred neighbourhood character. It includes policy on integration with the street, landscaping, front fences and site services and designates the review site as part of Neighbourhood Character Area 16 Heathmont Gardens where the preferred future character will be achieved by:

Encouraging a low scale building form nestled into the landscape.

Ensuring development on sloping land is designed with the topography, avoiding excessive excavation and removal of vegetation.

Strengthening corridors of native trees in streets and gardens.

Ensuring setbacks reflect the established pattern and provide space for the retention and planting of substantial vegetation.

Ensuring development in the vicinity of Heathmont Gardens responds to and complements the landscape character of the area.

Encouraging the use of planting at frontages, as an alternative to front fencing

1. Policy on non-residential uses in residential areas seeks to maintain or enhance the residential aspect or physical appearance of the area and ensure the design reflects the residential character and streetscape of the area. Decision guidelines in the NRZ require consideration of the design, height, setback and appearance of the proposed buildings and works and the proposed landscaping.
2. The landscape objectives of SLO3 includes ensuring development is compatible with the existing character and landscape protection of the area and to minimise the effect of future development upon natural features, particularly canopy trees.
3. I agree with the applicant that the proposed child care building is an appropriate design response. Its single storey height combined with a site cut and topography that slopes down from the street will avoid a built form that is intrusive in the street. Building site coverage is low and setbacks from side and rear boundaries are relatively generous providing a sense of space commensurate with nearby development. Council raises no concerns with the proposed removal of trees from the site.
4. Despite these positive design aspects, there are several elements of the proposal that I find unacceptable in terms of neighbourhood character and design response.
5. First, I am concerned that the inclusion of a substantial area of car parking in the front setback will be an intrusive and unacceptable element in the streetscape. The central driveway with car spaces either side extends for a width of over 16 metres and occupies the majority of the front setback. Although there is a landscape setback of between 4.2 and 5 metres adjacent to the frontage, the car parking will be a dominant presence in the street exacerbated by the 6.5 metre wide crossover, 6.5 metre wide driveway and 1.2 metre wide pedestrian path that extends through the landscape setback.
6. I accept that there are examples of front setbacks occupied by hard surface including the dwelling at 16 Armstrong Road which has a garage forward of the dwelling and the dwelling at 20 Armstrong Road that has two crossings accessing a semi-circular driveway. Nevertheless, the extent of hard surfaces in existing residential development is limited, especially relative to the size of the lots and does not detract from the garden setting of the streetscape characterised by front setbacks largely set aside for planting.
7. I have referred to other non-residential uses in the street with the church to the north, the factory to the south and a child care centre opposite the review site. With the exception of the latter, these sites do not present with extensive car parking or paved areas to the street. The church site has two single width crossovers (over two lots at 12-14 Armstrong Road) but all car parking is to the rear of the building. The factory at 22-26 Armstrong Road includes two double crossovers. One provides access to a loading bay area in the front setback and the other to car parking located to the north side of the building. The child care centre opposite does include parking in the front setback of the building although to a limited extent. Mr Patrick referred to the appearance of this property as residential. Even with the non-residential uses nearby, I find the extent of car parking proposed in the front setback atypical and a foreign element that does not maintain the residential aspect of the street as sought in local policy.
8. In my view, the extent and location of car parking is not consistent with the preferred future character for the precinct which refers to 'green, leafy streets' dominating the area and where the plantings in private gardens will continue to add a sense of 'green enclosure' to the streetscapes.
9. Secondly, I find the hard edge of the car park adjacent to the building an unsatisfactory response to the well landscaped gardens sought for the precinct. The car park and vehicle access adjoins the front façade of the building with no opportunity for planting. This creates a hard edge within the site and limits contribution to the landscape character.
10. My final concern about the response to neighbourhood character relates to the proposed removal of the street tree. There are two street trees adjacent to the review site, both Kanookas referred to as Trees 1 and 2. The proposed crossing would require removal of Tree 2.
11. The arborist report that accompanied the permit application referred to this tree as of medium to high retention value and said the tree must be retained and protected throughout any development.[12]
12. Council's environmental planner[13] describes this tree as:

...of reasonable size, excellent form (having a spreading canopy) and plays an important role in the softening of the built form of the existing dwelling when viewed from the street. Loss of Tree 2 from the landscape will impact the neighbourhood character and disrupt the existing landscape pattern of street trees along Armstrong Road especially as this species forms the main component species of street tree planting.

1. I agree the tree contributes to the streetscape and its loss is a poor design response, particularly in a precinct where the preferred future character refers to green leafy streets dominating the area and where the SLO3 seeks to conserve the existing pattern of vegetation.
2. I acknowledge Council's initial advice that indicated removal of the tree could potentially occur subject to payment of a fee to replace the tree, noting that comments indicated a preference for Tree 2 to be retained over Tree 1. I also accept a number of street trees in the southern section of Armstrong Street are proposed to be removed by Council to allow construction of a shared user pathway. Neither of these factors change by view that an appropriate design response would have incorporated retention of Tree 2.
3. The possibility of altering the location of the crossover 1 metre north of Tree 2 was explored through questions of Mr Patrick and Ms Dunstan at the hearing. I have not been satisfied on the information before me that this change would be sufficient to protect the tree.

1. As referred to earlier in this decision, there are a number of matters raised by respondents and in statements of grounds that have not been determinative in my decision to refuse this proposal. I set out brief findings on these issues.

1. Adequacy of car parking is questioned by respondents, especially having regard to the high parking demand generated by the nearby school. Concern is raised that the proposal will put more pressure on the limited parking onstreet during peak times.
2. Clause 52.06-5 specifies a requirement of 0.22 car spaces per child care place. The proposal is for 72 child care places which generates a requirement for 15 car spaces.[14] Fifteen car spaces are provided meeting the Planning Scheme requirement. Adequacy of car parking space provision is not a basis to reject the application.

1. Respondents raise concerns about the capacity of Armstrong Road and the intersection of Armstrong Road and Canterbury Road to safely and efficiently cater for the additional traffic generated by the proposal. They refer to the traffic in the street being currently overwhelming at peak school drop off and pick up times catering for the primary school, the existing childcare centre and a kindergarten (at 4A Pleasant Drive, accessed via Armstrong Road).
2. I accept there is significant traffic in the street at peak times for school drop off and pick up and the proposal will add to that traffic. However, I am not persuaded that the additional traffic generated by the proposal would be a basis to refuse the application. I reach that view having regard to the following.
   • Based on traffic counts undertaken as part of Ms Dunstan's evidence, existing daily volumes of traffic in Armstrong Street is 3077 vehicles per day. Ms Dunstan says the estimated daily traffic movements generated by the child care centre (including staff vehicles) is 368. This amount of additional traffic is within the environmental capacity of a 'collector road'.[15]
   • The estimated daily traffic movements referred to above is conservative and does not allow for more than one child per care, linked trips with the nearby primary school or use of alternative transport modes such as walking or public transport.
   • The absence of fixed start or finish times for a childcare centre means the drop off and pick up times are spread throughout the morning and evening periods. Ms Dunstan says this is in contrast to the primary school or kindergarten where fixed start and finish times result in a high level of traffic generated within a relatively short timeframe.
   • Ms Dunstan's evidence that the expected additional vehicles per cycle at peak times at the signalised intersection at Canterbury Road and Armstrong Road will be of minimal impact.
   • The view of Council's traffic engineer that the surrounding street network and intersections can suitably accommodate the traffic generated by the proposal.

1. Respondents raised concerns about adverse amenity impacts arising from noise from children, music, cars and air conditioners. Loss of privacy, overshadowing, building bulk and the adequacy of existing boundary fencing are also raised by respondents.
2. A child care centre will generate noise and I agree with the findings in Charbrow Pty Ltd v Maroondah CC[16] that:

The question of what is an acceptable level is not concerned with the achievement of a specified noise level. There are no specified levels of noise arising from the sound of children at play in schools, kindergartens or childcare centres. Rather, the approach has been to understand the likely level of noise to be emitted and to make pragmatic requirements for the installation of acoustic fences on boundaries with neighbouring properties having regard to the sensitivity of these interfaces from place to place around the boundary.

1. It is Mr Tardio's evidence that the proposal can meet reasonable noise targets subject to some permit conditions relating to fencing, external amplification, restrictions on times of outdoor play and deliveries and review of plant equipment. I am satisfied that the noise impacts could have been addressed with appropriate permit conditions.
2. Overlooking and overshadowing impacts would be acceptably limited due to the single storey nature of the building, the setbacks and the proposed fencing. Light spill could be appropriately limited by permit condition that requires appropriate baffling. I do not share concerns about building bulk. The single storey height, the setbacks from boundaries, the skillion roof and the mix of external material and colours will avoid a built form that is intrusive to the neighbouring properties.

1. The need for additional child care places in the area is questioned by respondents.
2. Council says that child care centres legitimately serve local community needs. I agree. However, I am not persuaded that the need for the centre in this case outweighs my concerns about adverse impacts arising from cumulative impacts of non-residential uses in the street, including the isolation of two residential properties and negative effects on neighbourhood character.

1. 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.

[3] Clauses 15.01-1S, 15.01-2S and 15.01-5S.

[7] Including Pict Technical Services Pty Ltd v Whitehorse CC [2005] VCAT 2355, Charbrow Pty Ltd v Maroondah CC [2016] VCAT 724 and WDW Australia Pty Ltd v Maroondah CC [2018] VCAT 96.

[8] Charbrow Pty Ltd v Maroondah CC [2016] VCAT 724 paragraph 24

[9] Including at clauses 15.01-1S, 15.01-2S

[10] Including at clauses 22.02 and 22.13.

[11] With some exceptions not relevant to this proceeding.

[12] Arboricultural Assessment 18 Armstrong Road, Heathmont by All Trees Consulting Services Pty Ltd dated 6 August 2018 at page 7.

[13] Internal referral dated 31 October 2019.

[14] Rounded down to the nearest whole number as provided for in clause 52.06-5.

[15] As referenced in Maroondah City Council Road Management Strategy dated 2017 which states a collector road has the capacity of between 3000 and 7000 vehicles per day.

[16] [2016] VCAT 724 at paragraph 36.