Appropriate signage at the property boundary indicating only left-in vehicular access from Keilor Road.

1. The Council submits that, even though this condition was not specifically requested by Head, Transport for Victoria, which is the referral authority for the permit application, the condition is appropriate having regard to the nature of Keilor Road. This relates to Keior Road accommodating a tram line along each lane, along with kerbside parking either side of the road meaning here is no capacity for a vehicle to pass a tram. The Council submits that allowing a right hand turn into the site from the southern side of Keilor Road has the potential to exacerbate the banking of traffic, particularly when a vehicle is in front of a tram.
2. The applicant opposes this condition. It argues that Jason Walsh's evidence is that that the likely impact of right turning vehicles on trams is minimal. They also argue that vehicles coming from the east will need to turn right into another laneway to the west of the site, and then complete their turn into the site.

1. It is obvious that if there is no capacity for right-hand turns into the site from Keilor Road the potential for trams to be delayed by turning vehicles is avoided. This may be a preferable outcome. However, under the decision guidelines at clause 65.01, the relevant consideration is whether the proposal produces 'acceptable' outcomes. In circumstances where the relevant referral authority has not required a permit condition restricting right-hand turns into the site from Keilor Road, I am not persuaded by the Council that restricting right-hand turns is necessary to achieve an acceptable traffic management outcome.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

Use of the land as a child care centre, in the Commercial 1 Zone.

To construct a building or construct or carry out works, in the Commercial 1 Zone.

To construct a building or construct or carry out works, in the Design and Development Overlay - Schedule 7.

To construct or put up for display signs with a display area exceeding 8 square metres.

To construct or put up for display a flood lit sign.

1. Before the use and development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The amended plans must be drawn to scale with dimensions and be in an electronic format. The amended plans must be generally in accordance with the plans prepared by Archsign Architecture, Job No. 23129, plan No.s TP01-TP05, TP05A, TP06, TP06A, TP07, TP08, TP08A, TP09A-TP09C, TP10-TP19, Revision E, dated 23 January 2024, but modified to show:

(a) details of all acoustic fencing along the northern property boundary in product that has a similar acoustic attenuation of at least 28 dB;

(b) details and colours of all business identification and directional signs, including signs indicating that the car spaces adjoining existing columns are to be staff car spaces;

(c) the gates across the vehicle access from Keilor Road shown to open inwards to the site;

(d) the gradients of all ramps to be provided;

(e) all line marking and directional signs located within the parking area;

(f) dimensions of the disabled car space and shared area in accordance with AS2890.6-2022, including the bollard location;

(g) all STORM annotations and measures in accordance with Condition 3;

(h) all BESS annotations and measures in accordance with Condition 4;

(i) an amended Landscape Plan in accordance with Condition 7;

(j) any changes as required under the Waste Management Plan in accordance with Condition 8; and

(k) any modifications and requirements in accordance with Department of Transport and Planning Condition 10.

When approved, these plans will be endorsed and will form part of this permit.

1. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
2. Stormwater from the development must be treated to meet the water quality performance objectives set out in the Urban Stormwater Best Practice Environmental Management Guidelines, Victoria Stormwater Committee 1999 (Guidelines), as amended. The performance objectives of the Guidelines must be met entirely on site as demonstrated by a Water Sensitive Urban Design (WSUD) assessment report(s) submitted to and approved by the Responsible Authority; except that with the written consent of the Responsible Authority, up to 20% of treatment may be delivered offsite as demonstrated by a Water Sensitive Urban Design (WSUD) assessment report(s) submitted to and approved by the Responsible Authority.
3. A Built Environment Sustainability Scorecard (BESS) report must be submitted simultaneously with the submission of amended plans in accordance with Condition 1 and the provisions of Clause 15.01-2L (Environmentally sustainable development) of the Moonee Valley Planning Scheme. The BESS report must be a 'published' version, achieve all minimum requirements, meet best practice standards and be to the satisfaction of the Responsible Authority for approval. Once approved the BESS report is to be implemented and appropriately managed during construction of the proposed dwellings.
4. A minimum 30 days prior to any building or works commencing, all WSUD details (relating to the WSUD treatment measures nominated in the approved and complying STORM report), such as cross sections and/or specifications, to assess the technical effectiveness of the proposed stormwater treatment measures, must be submitted for approval by the Responsible Authority.
5. A maximum 30 days following completion of the development, a WSUD Maintenance Program must be submitted to and approved by the Responsible Authority which sets out future operational and maintenance arrangements for all WSUD measures. The program must include, but is not limited to:

(a) Inspection frequency;

(b) Cleanout procedures;

(c) As installed design details/diagrams including a sketch of how the system operates; and

(d) A report confirming completion and commissioning of all WSUD Response treatment measures written by the author of the WSUD Response and STORM or MUSIC model approved pursuant to this permit, or licensed installing/commissioning plumber, or similarly qualified person or company. This report must be to the satisfaction of the Responsible Authority and must confirm that all WSUD treatment measures specified in the WSUD Response and STORM or MUSIC model have been completed and implemented in accordance with the approved report.

The WSUD Maintenance Program may form part of a broader Maintenance Program that covers other aspects of maintenance such as a Building User's Guide or a Building Maintenance Guide.

1. Before the development starts, and before any trees or vegetation are removed, an amended landscape plan and schedule to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The amended landscape plan and schedule must be prepared by a person or firm with suitable qualifications to the satisfaction of the Responsible Authority, drawn to scale and an electronic copy must be provided. The amended landscape plan and schedule must be generally in accordance with the landscape plan submitted with the application but modified to show:

(a) Any changes in accordance with Condition 1 of this permit;

(b) Raised planters with greening within the outdoor play areas, including small trees for canopy and shade;

(c) All Shrubs and trees selected for the play space must be safe for children. Avoid plant species that risk the health, safety and welfare of the facility's occupants, such as those which:

1. are known to be poisonous, produce toxins or have toxic leaves or berries; or
2. have seed pods or stone fruit, attract bees, have thorns, spikes or prickly foliage or drop branches;

(d) All Environmentally Sustainable Design (ESD) design solutions in accordance with the successful STORM/BESS report/s.

When approved the amended landscape plan and schedule will be endorsed and will form part of this permit.

Landscaping in accordance with the endorsed landscape plan and schedule must be completed before the building is occupied.

1. The provisions, recommendations and requirements of the endorsed Waste Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
2. A minimum 30 days prior to any building and works commencing, a Construction and Site Management Plan (CSMP) must be submitted to and be approved by the Responsible Authority detailing the construction activity proposed and the site and environmental management methods used. The CSMP must be in accordance with the Moonee Valley City Council's CSMP guidelines and template.

When approved, the CSMP will be endorsed and will form part of this permit. The development must be carried out in accordance with the endorsed CSMP and the provisions, requirements and recommendations of the endorsed CSMP must be implemented and complied with to the satisfaction of the Responsible Authority.

Department of Transport and Planning Conditions

1. The existing crossover on Keilor Road is for vehicular entry movements only. No exit movement is allowed onto Keilor Road.

1. Unless otherwise agreed by the Moonee Valley City Council, prior to the issue of a Building Permit in relation to the development approved by this permit, a Development Infrastructure Levy and/or Community Infrastructure Levy must be paid to Moonee Valley City Council in accordance with the approved Moonee Valley Development Contributions Plan December 2023.

If an application for subdivision of the land in accordance with the development approved by this permit is submitted to Council, payment of the Development Infrastructure Levy can be delayed to a date being prior to the issue of a Statement of Compliance for the subdivision.

1. Once the use is commenced, the land may only be used for the permitted use and the use must be conducted to the satisfaction of the Responsible Authority.
2. The use as approved by this permit may only operate as follows:
   • Monday to Friday (other than public holidays): 6:30am to 6:30pm.
3. No more than 120 children may be present on the land at any time.
4. No more than 25 staff may be present on the land at any time.

1. The water sensitive urban design treatments as specified within the Water Sensitive Urban Design (WSUD) assessment report(s) submitted to and approved by the Responsible Authority must be implemented on site prior to the occupation of the development unless an alternative agreement is reached with the Responsible Authority.
2. Floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
3. All new pipes, fixtures, fittings, ducts and vents servicing any building on the land, other than storm water down pipes and gutters above the ground floor storey of the building, must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
4. Before the buildings approved by this permit are occupied, concrete vehicular crossing(s) must be constructed to suit the proposed driveway(s) in accordance with the Responsible Authority's specification and any obsolete, disused or redundant vehicle crossing(s) must be removed and the area reinstated to footpath, nature strip and kerb and channel to the satisfaction of the Responsible Authority.

All vehicle access points must be located a minimum of 1.0 metre from any infrastructure including service pits. Alternatively, such assets may be incorporated into the crossover with the prior written consent of the Responsible Authority and the relevant servicing authority/agency. Subsequent works and costs in association with relocation and/or amendment must be incurred at the owner's cost, to the satisfaction of the relevant servicing authority/agency and the Responsible Authority.

1. Before occupation of the building approved by this permit, the areas set aside for the parking of vehicles, together with the associated driveways and access lanes as shown on the endorsed plans must be:

(a) constructed;

(b) available for use in accordance with the endorsed plans;

(c) line marked or provided with other adequate means of ensuring that the boundaries of vehicle spaces are clearly indicated on the ground;

(d) properly formed to such levels and drained so that they can be used in accordance with the endorsed plans; and

(e) finished with a permanent trafficable surface (such as concrete, asphalt or paving);

in accordance with the endorsed plans to the satisfaction of the Responsible Authority.

The area set aside for the parking of vehicles, together with the associated driveways and access lanes as shown on the endorsed plans must be maintained and made available for the approved use and not be used for any other purpose.

1. The existing street tree on Keilor Road must not be removed or damaged as a result of the permitted development.
2. Noise levels must not exceed the permissible noise levels stipulated in the Environment Protection Regulations under the Environment Protection Act 2017 and the Incorporated Noise Protocol (Publication 1826.4, Environment Protection Authority, May 2021) as may be amended from time to time to the satisfaction of the Responsible Authority.
3. The use permitted by this permit must not adversely affect the amenity (including the residential amenity) of the locality or cause a nuisance or annoyance to a person beyond the land, including through the:

(a) Transportation of materials, goods or commodities to or from the land;

(b) Appearance of any building, works or materials;

(c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot ash, dust, waste water, waste produces, grit or oil;

(d) Disposal of waste, including disposal of glass bottles, etc.; and

(e) Presence of vermin;

or in any other way, to the satisfaction of the Responsible Authority.

1. Provision must be made for the drainage of the land including landscaped and pavement areas. The discharge of water from the land must be controlled around its limits to prevent any discharge onto any adjoining or adjacent property or streets other than by means of an underground pipe drain which is discharged to an approved legal point of discharge to the satisfaction of the Responsible Authority.
2. Prior to the issue of an Occupancy Permit, all new acoustic boundary fencing as shown on the endorsed plans must be erected.
3. The development must be provided with external lighting capable of illuminating car parking space and pedestrian walkways. Lighting must be located, directed and shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within or beyond the land.

1. The location and details of the signs, and any supporting structure, as shown on the endorsed plans, must not be altered without the written consent of the Responsible Authority.
2. The signs must not be animated or contain any flashing or intermittent light.
3. The sign lighting must be designed, baffled and located to prevent any adverse effect of light spill on adjoining land to the satisfaction of the responsible authority.
4. The signs, including the structure and content, must be constructed and maintained to the satisfaction of the responsible authority.

1. This permit as it relates to signs expires 15 years from the date of issue, at which time the sign and all supporting structures must be removed, and the site made good to the satisfaction of the Responsible Authority.
2. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the issued date of this permit.

(b) The development is not completed within four (4) years of the issued date of this permit.

(c) The use does not start within two (2) years of completion of the development.

In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] Jean Paul Maina's evidence statement (8 January 2024); Figure 2; 10.

[3] 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 this material will be cited or referred to in these reasons.

[4] With the agreement of the parties and the Tribunal, Sam D'Amico was not called to give oral evidence at the hearing.

[5] Having regard to the decision guidelines at clause 65 of the Scheme.

[6] John Paul Maina's written evidence statement (8 January 2025), 6.

[7] Jason Walsh's written evidence statement, (8 January 2025), [99].

[10] John Paul Maina's written evidence statement, (8 January 2025), [49].

[11] Jason Walsh' written evidence statement, (8 January 2025), [ [99].

[12] Based on Figure 2.8 of Australian Standard 2890.1:2004.

[13] Jason Walsh's oral evidence at the hearing.

[14] Jason Walsh's written evidence statement (8 January 2025), [95].

[15] Jason Walsh's written evidence statement (8 January 2025), Appendix C.