(i)

The permit must not contain conditions 1(a), 1(e) and 1(i) as set out on the permit issued by the Responsible Authority on 17 March 2005;

(ii)

Conditions 1(l), 10 and 11 modified to read as follows:

1(l) Provision of a 2 metre high acoustic fence along the north boundary (commencing 19.5 metres from the western boundary and along the entire eastern boundary of the site with such fence to be to be free of gaps and cracks and constructed of material having a minimum surface mass of 12kg/m2.

At no time may more than ten (10) permanent staff operate within the Child Care Centre at any one time unless otherwise agreed to in writing by the Responsible Authority.

The total number of children attending the premises at any one time must not exceed 90. Not more than 30 children under the age of 3 years may attend the premises at any one time.

(iii)

The following new additional part to be added to condition 1:

(o) the consolidation of the 2 parallel car parking spaces adjacent to the entry to the building into 1 parallel space, 8 metres long and marked for visitor use, and the provision of additional landscaping, in front of the building, generally in accordance

with the landscape plan by Coomes Consulting identified as drg no. 131120LD01, Revision A marked "For Discussion Only".

The Responsible Authority is directed to issue an amended permit in accordance with this order.

Mr C Wren, Barrister, instructed by Deacons. Mr Wren called Ms E Hui, Acoustics consultant; Ms G Austin, traffic consultant and Mr R Cooper, landscape architect to give expert evidence.

Mr E Attard appeared with Ms L Anderson for themselves and on behalf of the co-signatories on their statements of grounds.

Mr B Boxer on his own behalf and on behalf of J Boxer.

Mr A Swindon, Planning Consultant, appeared for S Griffith, A Pagram and Others and Body Corporate 22921C.

(Given orally at the end of the hearing and subsequently revised and expanded)

1 This was an application under Section 80 of the Planning and Environment Act 1987 by the permit applicant, Gumnut Developments Pty Ltd, against conditions imposed by the Banyule City Council on Planning Permit No. P800/04 which allows the use and development of a child care centre at 30 Stradbroke Avenue Heidelberg.

2 The subject site is located on the east side of Stradbroke Avenue, south of Brown Street, Heidelberg. The site is rectangular in shape with a frontage of 36.57 metres, depth of 54.86 metres and an overall area of about 2006 square metres. The site is occupied by a brick building that has been used for the purpose of providing crisis accommodation by the Department of Human Services. The site is relatively flat; however, there is variation or changes in the internal levels. Buildings and most vegetation have now been removed. The remaining trees are those that the council considers are worthy of retention.

3 Contextually, the site is located within an established residential area with most surrounding properties occupied by single storey dwellings or medium density housing developments. The site is also within walking distance of the Burgundy Street shopping centre and various medical facilities within and around the Austin hospital.

4 The proposal for which permission was sought involved the construction of a new single storey building on the site to be used for the purpose of a 90 place child care centre.

5 The proposed building is to be setback about 17.5 metres from the frontage, 1.5 metres off the southern side boundary and a minimum of 4 metres and 5 metres off the northern boundary and rear boundaries respectively.

6 The front setback area is to be largely paved to provide car parking. Ten spaces [allocated for staff parking] are to be provided at 90 degrees, adjacent to a 1.5 metre wide landscaping strip that runs along the frontage. A further 7 spaces are to be provided adjacent to the front of the building, either at an angle or parallel to the building, for visitors, particularly persons picking up or dropping off children. Access to the on site parking would be via a semi-circular driveway with crossings at the northwest and southwest corners of the site. I understand that the crossing arrangement allows for up to 3 kerbside spaces along the site's frontage.

7 The building will provide various internal areas for different age groups; 0-2 years [15 places]; 2-3 years [15 places]; and 2 rooms for children aged over 3 years, with each room providing for 30 places. Defined outdoor play areas are provided to the north of the building for children within the various age groups.

8 Under the planning scheme, the site is located within the Residential 1 zone, the provisions for which are found at clause 32.01. Child care centre is a section 2 or permit required use within the zone. Buildings and works associated with a section 2 use also require a permit under the zone provisions. The site is not subject to any overlay controls.

9 Car parking requirements are set out at clause 52.06 of the planning scheme. The table at clause 52.06-5 does not specify a requirement for a child care centre. In such circumstances, the provisions at clause 52.06-1 state that the responsible authority must be satisfied that an adequate amount of car parking is provided before a use can commence.

10 General decisions guidelines are set out at clause 65. These require consideration to be given to, amongst other things, the planning scheme's policies; the purpose of the zone; orderly planning and the impact on amenity.

11 The permit application was lodged with the council on 8 October 2005. After the submission of further information, the council required notice of the application to be given and, in response, it received 9 objections and a petition opposing the proposal. Concerns raised in the objections related to matters of car parking and traffic; noise and amenity; vegetation and landscaping and building appearance. The views of several council departments were also sought. The council subsequently decided to grant a permit subject to 21 conditions.

12 The application for review initially sought the review of the following permit conditions: 1 (a), 1(c), 1(d), 1(e), 1(h), 1(k), 10 and 11. By letter to the registrar dated 4 July 2005, lawyers for the applicant advised that conditions 1(c), 1(d) and 1(k) would not be contested at the hearing.

13 After having considered the submissions and evidence, the details of the proposal and the relevant matters to be considered under the Planning Scheme and legislation, it seems to me that the key matters relevant to the consideration of the conditions in dispute fall into two areas, namely:

•

Is sufficient opportunity provided for landscaping along the frontage of the site and along the southern boundary?

•

Is the reduction in the number of childcare places from 90 to 70 justified having regard to the impacts on the amenity of the area?

14 Before turning to thee two matters, I think that it is relevant to note that this is not a case where the council considers, in general terms, that the proposed use and development together with the amenity impacts are unacceptable within this residential area. This is a case where the council has granted a permit for a child care centre, albeit at a lesser capacity in terms of child places than requested.

15 In coming to my decision, I think that that is relevant that I make the following observations about the proposal as a whole. First, the establishment of child care centres in residential areas is contemplated by the zoning of the land. It is not unusual for this type of facility to be found in a residential area. Second, planning policy and the purpose of the zone support the provision of this type of community infrastructure in close proximity to the people that would utilise it. Third, the site in question, with an overall area of about 2000 square metres, is a relatively large site and free of difficult constraints. It provides a rare and unusual opportunity for the development of this type of facility within a residential area. Not all properties within residential areas, by way of their size, location, physical attributes are going to be suited to this type of use. The council thinks that this one is and has granted a permit.

16 I will now turn to the conditions in dispute. I will deal firstly with the conditions that seek to modify the form of the proposed development as the outcome of these matters may have a bearing on the issue of the centre's capacity.

17 Condition 1 on the permit requires the preparation of amended plans. Parts (e) and (h) are in dispute.

18 Condition 1(e) essentially requires the landscaping strip along the front boundary be widened from 1.5 metres to 2.5 metres. The condition goes on to specify how the increase in width is to be achieved and, in particular, specifies that the 5 metre rear setback must be maintained.

19 Without wanting to do an injustice to the comprehensive submissions presented by Ms Radovic, it seems to me that the fundamental reasoning behind the condition is to ensure that suitable landscaping is provided within the front setback given that much of this space is to be paved for car parking. In particular, the council is looking for canopy trees that will make a positive contribution to both the appearance of the site and the general streetscape or landscape character of the area as well as providing shade.

20 From the applicant's viewpoint, the difficulty with the condition is that it would result in a loss of the area, either internal or external to the building, thus resulting in a loss of child care places within the centre. Whilst this is not an irrelevant consideration, I understand that the number of places lost would be relatively small.[1]

21 Nonetheless, after having considered Mr Cooper's evidence I am satisfied that the provision of landscaping as set out in his plan would achieve the outcome that is being sought by the council. In particular I am satisfied that the proposed 1.5 metres wide landscaping strip provides opportunity for the planting of a substantial number of trees across the site's frontage and that suitable space would be available for thematic understorey planting. The trees proposed by Mr Cooper would have a mature height of about 9 metres and although the canopy is not overly broad, nonetheless, some shade over the car park would be provided.

22 I also note that as consequence of Ms Austin's suggestion that the two parallel spaces adjacent to the building's entry be converted into one 8 metre long space, opportunity would exist for the provision of three additional canopy trees to be planted near the building.[2] With the inclusion of these additional trees, in overall terms, I think the landscape outcome for the front setback area is acceptable in the circumstances. The reality is that even if the width of the front landscape strip is increased, I doubt that this would significantly improve the landscaping opportunity and the paving associated with the car park would still be the most dominant element in the setback area.

23 Accordingly I will delete condition 1(e); however, I will include a new part in condition 1 that requires, firstly, the 2 parallel spaces near the building's entry to be consolidated into one 8 metre long space as recommended by Ms Austin; and secondly, for additional landscaping to be provided generally as shown on the "For Discussion Only" plan prepared by Mr Cooper.

24 Condition 1(h) requires that the eastern end of the building be set back 2.5 metres from the southern boundary instead of the 1.5 metre setback shown on the application plans. The council's justification for this condition was to provide the opportunity for landscaping that would assist in softening the appearance of the building when viewed from the driveway or the public entry to the units on the property to the south.

25 Mr Cooper suggested that the 1.5 metre setback as originally proposed provides an opportunity for an extension to the fence height and the planting of some form of creeper over it. I have formed the view that this is not acceptable in the circumstances.

26 The proposed building is over 30 metres and although single storey, it is elevated at the rear and its roof form presents a fairly long and continuous plane. I note Mr Wren's suggestion that the roof form could be articulated by way of a gable at the centrally located entry along the south elevation. Whilst this would be an improvement, in my view, the continuity of the building should also be softened by landscaping.

27 The driveway area on the property to the south is not what you typically find in medium density developments. It seems to be quite spacious, with a meandering alignment that provides landscaping, a sense of openness and an attractive entry or sense of address to the units on that property. I think it is actually an important space that forms part of the public realm associated with that particular development. In my view, the requirement for the rear part of the building to be setback to provide more substantial landscaping is reasonable. I think it may well be ambitious to expect that there would be large canopy trees in this setback area; however, based on Mr Cooper's evidence, there is opportunity to provide planting that provides some form of canopy within this area, albeit that it would be more upright in nature.

28 Accordingly, I will not direct the deletion of condition 1 (h).

29 I now turn to the second key issue, namely the conditions that seek to reduce the number of child care places within the centre from 90 down to 70. The conditions in question are condition 1(a) which requires that the maximum number of places shown for each area within the building be reduced; condition 10 which restricts the maximum number of permanent staff to 8 thus limiting the number of children that may be in attendance at any one time, and condition 11 which sets the actual limit of 70 child care places.

30 Ms Radovic and the objectors put forward a number of arguments in support of the reduction of the centre's capacity from 90 to 70.

31 First, Ms Radovic submitted that the reduction in numbers was required to achieve compliance with the Children's Services Regulations 1998. Essentially, Ms Radovic was saying that although the centre could provide up to 90 places as originally proposed, the reduction in its size given the additional setbacks would reduce its capacity when assessed under these regulations.

32 I have not been persuaded that this is a relevant consideration from a town planning point of view. Essentially, the centre's capacity when assessed against the regulations will be set down by the relevant authorities when the centre is registered. Even if the planning permit allows a certain number of child care places, it should not be assumed that this quantum will automatically be achievable when the proposal is assessed under the regulations. The purpose of the planning permit application should be to assess town planning matters such as the appropriateness of the use, car parking, traffic, impacts on the surrounding properties etc. Any limit on places set down in the planning permit should be based on planning considerations. In any event, Ms Radovic did not persuade me that a reduction of 20 spaces is justified even if the regulations are taken into account.

33 Second, it was submitted that the reduction in the number of child care places is justified having regard to amenity impacts with respect to noise, parking and traffic.

34 In relation to noise, Ms Hui's was quite unequivocal. Essentially Ms Hui stated that based on her expertise and experience the increase from 70 children to 90 children on the site would have a limited impact in terms of increasing the overall maximum noise. The increase would be in the order of about 1 dBa and, further, such an increase would be difficult to perceive.

35 Putting aside the general issue of whether the noise associated with children playing is unreasonable or not, I have no basis upon which to find against that particular proposition as it is reasonably consistent with and in line with the other evidence that I have been asked to consider with respect to noise issues.

36 It is also important to note that the permit conditions require the provision of an acoustic fence along the northern and the eastern boundaries adjacent to the outdoor play areas. Ms Hui's evidence was that a properly constructed fence with no gaps or cracks and with a minimum surface mass of 12kg/m2 would potentially reduce noise levels to receiver points by between 10-15dBa. Mr Wren did not resist modifying the relevant condition on the permit[3] so that it specifies the standard to which the fence must be constructed. I consider that this condition should modified so that it sets the standard of fence construction to be achieved.

37 I have come to the conclusion that a reduction in the number of child care places from 90 down to 70 is not justified having regard to noise impacts.

38 It was also submitted that the reduction is justified on car parking grounds. There is no car parking requirement specified in the Planning Scheme in clause 52.06 for a child care centre; however, the council does have local guidelines[4] that specify a parking requirement for both staff and visitors. Ms Radovic conceded that even if the overall number of spaces is reduced by 1 in accordance with Ms Austin's recommendation, that the 16 spaces on site would meet the standard specified in the guidelines.

39 Whilst I appreciate Ms Radovic's concern the guidelines do not specify a requirement for staff other than carers, nonetheless, I think that the standard in the guidelines is conservative in that it assumes that all carers will drive to the site. I would think that there is a reasonable probability that this would not be the case and that some of the staff spaces would be used by other part time or casual staff.

40 It is also relevant to note that the empirical assessment of parking demand prepared by Ms Austin indicates that the car parking provided on the site together with the 3 spaces along the site's frontage will accommodate the needs of this centre.

41 Third, I note that the overall amount of car parking to be provided is reasonably consistent with that which the tribunal found to be acceptable by Member Hadjigeorgiou in Akchi Holdings Pty Ltd v Kingston CC [2003] VCAT 1770. In particular, I also think that it is reasonable that the centre should be able to rely on the 3 kerbside spaces immediately along the site's frontage and the suggestion that these spaces should be restricted to allow for short stays, suitable for the picking up and dropping off of children is sensible, particularly during the peak periods at either end of the day.

42 Fourth, I consider that the on site car parking is well located and would allow for easy and convenient use by staff and parents.

43 Having regard to the above, I find the car parking available for this use would not justify a reduction from 90 places down to 70.

44 In relation to traffic, Ms Austin's evidence was quite clear; the additional traffic associated with an increase from 70 to 90 is marginal at best. In fairness Mr Swindon acknowledged that this would be the case. We are talking about relatively small amounts of additional traffic.

45 That is not to say that there would not be a noticeable increase in traffic when the centre opens; however, it has already been approved with 70 places. The extra places would result in a modest increase in traffic and in overall terms, I am satisfied that it can be accommodated in the surrounding street network.

46 Accordingly, I do not consider that the reduction in places is justified on traffic grounds.

47 Overall in dealing with conditions relating to the number of places, I have come to the view that there is no basis for the limit on the planning permit to be set lower than the 90 places initially proposed. Accordingly, with respect to the conditions in issue, I will direct that Condition 1(a) be deleted; Condition 1(i) will be modified to allow for 10 staff car parking spaces to be provided with 6 allocated to visitors; Condition 10 will refer to there being 10 staff instead of 8, and Condition 11 will be modified to simply set the limit at 90 children or 90 places with not more than 30 children under the age of 3 years of age. I have set the limit for children under the age of 3 at 30 as more carers are required for this age group compared to older children and if this number is increased, more car parking may be required.

48 The modification to the south setback may result in the centre's capacity being decreased when assessed against the Children's Services Regulations; however, the decrease would be relatively small. It may be possible to re-organise internal spaces so that the extent of the decrease is minimised or it is avoided altogether. Ultimately, it will be up to the applicant to demonstrate that 90 children can be accommodated within the building.

[1] Mr Wren advised me that the applicant estimates that the centre's capacity would be reduced by between 5-8 places is the requirements of conditions 1(e) and (h) are put in place.

[2] The additional tree planting and modified car parking layout is shown on the plan prepared by Mr Cooper and labelled "For Discussion" as tabled at the hearing.