The decision of the responsible authority in permit application M/2006/488 is set aside.

A permit is granted in relation to land at 40 Marlborough Road, Heathmont. The permit will allow the use and development of the land for the purpose of a child care centre and removal of vegetation, generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development authorised by this permit starts, or any trees or vegetation removed, amended plans (three copies) to the satisfaction of the Responsible Authority must be submitted to the Responsible Authority for approval. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted with the application but modified to show:

(a)

All boundary fences surrounding the outdoor play areas on the north and west side of the building to be acoustically treated,

(b)

The location of all air conditioning/heating units to be clearly shown.

(c)

The retention of tree no.1 being the tree located closest to the street frontage of the site, and the provision of a landscaped setback to the street frontage of a minimum of 3 m.

(d)

The end parking spaces (numbers 4, 9 and 14) widened by 0.3 m to 2.9 m.

(e)

All tandem spaces to have a minimum length of 5.4 m.

Once approved these plans become the endorsed plans of this permit.

2 The layout of the site and the size, design and location of the buildings and works permitted must accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

3 Prior to the commencement of the use permitted under this permit, a car parking management plan must be prepared to the satisfaction of the satisfaction of the responsible authority. The plan must include (but is not limited to) arrangements for the allocation and location of staff car parking and drop off and pick up parking, and the management of any overflow car parking to achieve a minimisation of on street parking.

4 The approved car parking management plan must be implemented to the satisfaction of the responsible authority.

5 Before the development (including demolition) starts tree protection zones must be established to protect all retained trees (including the red flowering gum street tree) in accordance with the recommendations contained in the report of Peter Harrison dated 15 January, 2007.

6 All external lights must be of a limited intensity to ensure no nuisance is caused to adjoining or nearby residents and must be provided with approved baffles, so that no direct light or glare is emitted outside the site.

7 The loading and unloading of goods from vehicles shall only be carried out within the boundaries of the site and must not be conducted before 7.00am or after 7.00pm on any day.

8 The collection of refuse other than by the Council's normal collection service, must not cause any disturbance to nearby residential properties, and the collection of such refuse must be restricted to between 8.00 am and 8.00 pm Monday to Friday, without the further written consent of the responsible authorities.

9 Construction plans for paving of all parking areas and access lanes shall be submitted to and approved by the Responsible Authority prior to the commencement of any buildings or works authorised or required by this permit, except with the further consent of the Responsible Authority.

10 Before the use starts, areas set aside within the site for parked vehicles and access lanes as shown on the endorsed plans must be:

(a)

surfaced with an all-weather seal coat, with one of the following alternatives:

(i)

100 mm depth reinforced concrete on a 50 mm class 2 fine crushed rock bed with F72 reinforcing fabric fixed centrally;

(ii)

A bituminous concrete surfacing consisting of a 40 mm compacted depth, size 10 aggregate, on a 150 mm depth bed of 20 mm, class 2 fine crushed rock bed;

(iii)

A bituminous prime and seal or emulsion treatment using a cover of size 10 aggregate and a second cover of size 5-6 aggregate on a fine crushed rock bed as for (2) above.

(b)

line-marked to indicate each car space and all access lanes;

(c)

provided with concrete kerbs or other barriers to prevent direct vehicle access to an adjoining road other than by a vehicle crossing;

(d)

provided with a directional sign(s) to direct drivers to the area set aside for car-parking. The sign(s) must be located and maintained to the satisfaction of the Responsible Authority, and must not exceed 0.3 square metres each.

Parking areas and access lanes must be kept available for these purposes at all times.

11 Standard concrete vehicular crossings must be constructed to suit the proposed driveway/s in accordance with the Responsible Authority's standard specification and any vehicle crossing/s no longer required must be removed and the land, footpath and kerb and channel replaced all to the satisfaction of the Responsible Authority.

12 The use authorised by this permit may operate only between the hours of 6.30am and 7.00pm Monday to Friday unless the Responsible Authority consents in writing.

13 Goods must not be stored or left exposed outside the building so as to be visible from any public road or thoroughfare.

14 No equipment, services and architectural features other than those shown on the endorsed plan shall be permitted above the roof level of the building unless the Responsible Authority consents in writing.

15 Not more than twelve (12) staff shall be present on the premises at any one time. The limitation in this condition does not apply to a work experience student or a university external placement of a student.

16 Not more than ninety (90) children may be present on the site at any one time.

17 Provision must be made for the storage and disposal of garbage to the satisfaction of the Responsible Authority. All garbage storage areas must be screened from public view.

18 All waste must be disposed of to the satisfaction of the Responsible Authority and no liquid waste or polluted waters shall be discharged into the storm water drainage system.

19 Noise emitted from the premises must not exceed the applicable permissible noise levels determined in accordance with the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.

20 The amenity of the area must not be detrimentally affected by the use or development, through:

(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)

presence of vermin, or

(e)

in any other way.

21 No building or works shall be commenced (and no trees or vegetation shall be removed) until a landscape plan prepared by a suitably qualified and experienced person or firm has been submitted to and approved by the Responsible Authority. This plan when approved shall form part of this permit. This plan must show:

(a)

a survey of all existing vegetation, abutting street trees, natural features and vegetation,

(b)

buildings, outbuildings and trees in neighbouring allotments that would affect the landscape design,

(c)

the proposed design features such as paths, paving, lawn and mulch,

(d)

a planting schedule of all proposed vegetation (trees, shrubs and ground covers) which includes, botanical names, common names, pot size, mature size and total quantities of each plant,

(e)

the planting of trees along the northern and southern boundaries, capable of a spreading canopy and 2.0 metres high at the time of planting, and

(f)

the planting of trees with a spreading canopy within the front setback of the building.

Landscaping in accordance with the approved landscape plan must be completed before the building is occupied.

22 The garden areas shown on the endorsed landscape plan must only be used as gardens and must be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed it must be required to be replaced by a tree or shrub of similar size and variety.

23 The Council's Planning Office must be advised of the completion of the landscaping so that a site inspection can be carried out. A further inspection will be carried out 6 months after the completion of the landscaping to ensure that species have been adequately maintained.

24 This permit will expire if one of the following circumstances applies:

(a)

the development is not commenced within two (2) years from the date of issue of this permit,

(b)

the development is not completed within four (4) years from 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 months afterwards.

The responsible authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Neofitou called Mr P Harrison, arborist and Ms D Donald, traffic engineer

1 This is an application to review the decision of the responsible authority to refuse permission for a child care centre and vegetation removal at 40 Marlborough Road, Heathmont. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The proposed use and development does not satisfy the objectives of Clause 21.08 Residential Land Use, Clause under the Maroondah Planning Scheme.

2. The proposed use and development does not satisfy the objectives of 22.01 Canopy Vegetation Policy and Significant Landscape Overlay Schedule 3.

3. The proposed use and development does not satisfy the objectives of Clause 22.03 Maroondah Residential Neighbourhood Character Policy and is not in keeping with the preferred neighbourhood character.

4. The proposed use does not satisfy the requirements of Clause 52.06-1 with insufficient on-site car parking provided.

2 It is proposed to construct a single storey building to be used for the purpose of a 90 place child care centre.

3 The centre is proposed to operate between the hours of 7.00 am to 6.30 pm Monday to Friday. A total of 14 parking spaces are proposed to be provided within the front setback.

4 The proposed building is setback 15.5 m from the Marlborough Road frontage, 5 m from the rear boundary, and 1.8 m from the southern, side boundary. Outdoor play areas are proposed on the northern side of the building within an 8.9 m setback. The building is proposed to be constructed of brick veneer with a hipped and gable style roof form.

5 Two trees are proposed to be removed from the front of the site in order to facilitate the development.

6 The site is located on the western side of the road and has a frontage of 30.58 m, a depth of 49.32 m and an area of 1508 m2. A single storey dwelling currently occupies the site and this building is proposed to be demolished to make way for the child care centre.

7 Marlborough Road runs in a north-south direction and intersects with Canterbury Road approximately 370 m to the north of the review site. The road is truncated to the south by the Dandenong Creek Walking Trail. An informal car park is located at that end of the street. Marlborough Road was described to me as a local street performing a collector road function carrying in the order of 2500 vehicles per day. In the vicinity of the review site, the road is 7 m wide and provides for one lane of traffic in each direction with unrestricted kerbside parking on each side.

8 The traffic volumes identified in Marlborough Road are partly attributable to the location of a primary school and secondary college on the eastern side of the street, and to the south of Hardy Crescent which intersects with Marlborough Road just to the south of the review site.

9 The site is located within an established residential area characterised by a mix of housing styles but unified by the established vegetation in the form of street trees and plantings in the front setbacks of dwellings.

10 Immediately abutting the site to the north is a medium density housing development comprising 10 dwellings. To the south a driveway runs along the boundary of the review site, providing access to a car park and another medium density housing development located to the rear of the review site. A car park serving that development immediately abuts the review site to the rear.

11 The site is zoned Residential 1 under the Maroondah Planning Scheme. The purpose of the zone is to provide for residential development at a variety of densities and to encourage development which is respectful of neighbourhood character. Importantly, the zone purpose also provides for educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs, in appropriate locations.

12 A child care centre is a permit required use in the zone. A permit is also required for buildings and works.

13 A Significant Landscape Overlay (SLO3) applies to the site. The Statement of nature and key elements of landscape is;

Canopy trees are the main element of the urban character of Maroondah. Canopy trees in particular soften the impact of buildings in the environment and provide a distinct leafy character to Maroondah.

The continuous nature of the canopy vegetation throughout the ridgelines of Maroondah provides a strong character element and is much valued by the community. The canopy vegetation is a defining element of the ridgelines of Maroondah.

Contiguous canopy vegetation contributes to the maintenance of biodiversity through the provision of wildlife movement corridors, habitat and shelter areas.

14 The landscape character objective to be achieved is:

To conserve the existing pattern of vegetation, landscape quality and ecosystems within the area and encourage the re-generation of vegetation.

To maintain a dense vegetation canopy that contributes to the environmental significance of the area.

To control or minimise the effect of future development upon natural features, particularly significant vegetation and ridgelines.

To ensure that the development, use and management of land is compatible with the existing character and landscape protection of the area.

To maintain the overall scenic beauty of the municipality.

15 The SLO3 specifies that a permit is required to construct a building and to construct or carry out works unless exemptions apply. The nominated exemptions relate to building site coverage, slope of the land, alteration of natural surface of the land, and the height of a building. The proposal complies with each of the exemptions and no permit is required for building and works under the SLO3.

16 A permit is however required to remove, destroy or lop vegetation unless specifically exempted. Neither of the trees proposed to be removed are exempted by the provisions of the overlay and a permit is therefore required.

17 Car parking requirements are at Clause 52.06. A parking rate is not specified for a child care centre and car parking must therefore be provided to the satisfaction of the responsible authority.

18 In broad terms the relevant provisions of the State Planning Policy Framework (SPPF) encourages social and community facilities to be provided where they are accessible to the communities which they serve.

19 The Local Planning Policy Framework contains a number of provisions, the most relevant of which are summarised as follows:

•

Under Clause 21.03 of the Municipal Strategic Statement (MSS) the site is located within an area identified as being in a Residential Landscape Protection Area on the Strategic Framework Plan

•

The MSS at Clause 21.08 contains objectives which include;

To limit the intrusion of non residential uses into residential precincts.

Prevent the loss of residential land and housing stock for essential non-residential uses without suitable residential replacement in some alternative location within the municipality.

Ensuring all commercial use and development in residential areas is in accordance with the Residential Areas Development Policy, Clause 22.03 and the Retail and Commercial Development Policy, Clause 22.06.

Discouraging the development of residential land for non-residential uses.

•

Clause 21.11 of the MSS encourages the preservation of existing native vegetation.

•

Clause 22.01 is a Canopy Vegetation Policy, the objective of which is to ensure that development maintains and enhances the treed environment of Maroondah through site responsive design, siting and landscaping.

•

Clause 22.03 is a Residential Neighbourhood Character Policy under which the review site is located in character area 16 - Heathmont Gardens. Developments are encouraged to make positive contributions to the preferred character which, for area 16 is to 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.

•

With respect to land use matters, Clause 22.03 states that non residential land uses are encouraged to:

Maintain or enhance the residential aspect or physical appearance of the area.

Build upon the existing commercial framework.

Be located adjacent to or abutting an existing business zone.

Provide a use or service that is not able to be provided within the business centre.

Not result in the ribboning of commercial development.

Not result in the establishment of commercial uses in intact residential areas.

•

Clause 22.06 is a Retail and Commercial Development Policy the objective of which is to "..ensure that retail and commercial development builds upon existing commercial centres and public infrastructure and contributes to the development of a functional and sustainable urban form"

20 I was also referred to an Urban Design Framework which has been recently adopted by the Council, but apart from noting that the review site is not located particularly close to an activity centre, it is does not have any significant relevance to the consideration of this application.

21 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

22 Ms Morris submitted that the proposal does not adequately respond to the landscape character objectives of the SLO3 or the policy framework because the proposal necessitates the removal of vegetation from the front setback of the site and because the location of the car park within the front setback assumes a visual prominence which is uncharacteristic for this location and which does nothing in terms of maintaining or enhancing the area's character.

23 Ms Johnson generally supported the Council's submission, and emphasised those provisions of the planning scheme which aim to protect residential areas from the intrusion of commercial activities. In Ms Johnson's submission the proposal is out of character with this quiet residential neighbourhood.

24 Both Ms Morris and Ms Johnson raised concerns with respect to the increased traffic associated with the proposal, and the lack of on site car parking proposed

25 The LPPF of the Maroondah Planning Scheme, provides something of a mixed message with respect to non residential uses in residential areas. At Clause 21.08 of the MSS a desire to limit the intrusion of such uses is expressed, together with a concern about the loss of residential land and housing stock. At Clause 22.03 however, there is at least an acknowledgement that non residential uses can be accommodated in residential areas, and the policy focuses on built form issues by encouraging non residential uses to maintain or to enhance the residential aspect or physical appearance of an area. Non residential uses are also encouraged to locate within or abutting a business zone unless it is a use which cannot be located within a business centre.

26 These local policies need to be applied in the context that a child care centre is a use for which a permit may be granted in the Residential 1 zone and that they are a use which, for very good reasons, are appropriately located in residential areas. The reasons underpinning the appropriateness of the use to residential areas has been recently summarised by the Tribunal as follows:

.........There are many very good reasons which underpin the long established principle that child care centers are appropriately located in residential areas, not the least of which is that, notwithstanding the commercial basis of their operation, they provide a community service and it can be expected that the need for them is generated by at least some of the residents of the locality within which the center is located. The benefits of locating uses such as child care centres are recognized in the purpose of the Residential 1 zone, in the SPPF and in the Council's own policies.......[1].

27 I note that the local policies of the planning scheme applicable to the case referred to above, gives encouragement for non residential uses such as child care centres in appropriate locations in residential areas, subject to proposals meeting a range of performance standards. While I have not been able to conclude that the LPPF of the Maroondah Planning Scheme provides similar encouragement to such uses, the sentiments expressed by the Tribunal in the above matter with respect to the benefits of such uses in residential areas, are nevertheless pertinent.

28 My observations about the appropriateness of child care centres in residential areas should not be interpreted to mean that a permit will or should be issued for every application for a child care centre in a Residential 1 zone. Every application must be determined having regard to the particular circumstances of the proposal, the site and its context, and the applicable controls and policies of the planning scheme.

29 The circumstances of this site indicate to me that it is a suitable site and location for the proposed use. The site is relatively large (1508 m2) with a wide frontage of 30.58 m. While the site abuts residential properties on three sides, these interfaces are not what I would describe as sensitive, with driveways and car parking areas enclosing the site.

30 The site's proximity to a primary school is also of some significance, in that it provides at least the opportunity for shared or multi purpose trips by some parents.

31 The building associated with this proposal is a purpose built structure but it is a relatively modest, domestic scale, single storey building and incorporates a hipped, gable roof form. The building will sit quite comfortably in this neighbourhood which, as I have discussed above, comprises a mix of housing styles

32 The building is also set back a substantial distance from the street frontage and from side and rear boundaries, and this provides the opportunity for potential amenity impacts associated with the use to be absorbed on site. The acoustic treatment of fencing on the north and western boundaries abutting outdoor play areas as required in the Council's draft conditions is appropriate.

33 With respect to the removal of the vegetation, four trees have been identified as being impacted upon by the proposal, with two trees proposed to be removed, and two trees to be retained. The Council advised that it was opposed to the removal of one tree but was not opposed to the removal of the other because its retention value has been compromised by the presence of a basal stem wound and associated wood decay.

34 Mr Harrison gave evidence on arboricultural matters and advised that the tree to be removed which is opposed by the Council, has been disfigured by wire clearance pruning which has been necessitated by its location close to the site frontage, and that its removal and replacement on a 2:1 basis by appropriate species deeper into the site, would be an acceptable outcome having regard to the objectives of the SLO3.

35 While I agree with Mr Harrison (and the Council for that matter) that the tree has been affected by wire clearance pruning, it is a tree which nevertheless makes a contribution to the character of the neighbourhood. It was not disputed that its form, health and structure is fair and in my view, its retention is warranted. I do not regard the wire clearance pruning as a sufficient justification for the tree's removal and I note that this is not the only tree in this locality which has been or which will need to be pruned because of their proximity to overhead wires.

36 The retention of this tree will necessitate a redesign of the car park, but this will be necessary in any event because the location of the car park at the front of the site, behind what can only be described as a minimal, 1.0 m setback, is not an appropriate design response to the objectives of the SLO3 or the policy framework. Mr Neofitou submitted that a condition on a permit requiring the use of a "grasscrete" treatment for parking spaces at the front of the site would be sufficient to alleviate any concerns about the inadequacy of the setback. I disagree with this submission. While a "grasscrete" treatment for the car park or for part of it would be acceptable, it is not a substitute for a more substantial setback which is required to provide a greater landscaping opportunity to assist in the integration of the proposal into the neighbourhood. I have therefore imposed a condition requiring a minimum 3 m landscaped setback to be provided.

37 An increased setback does not compromise the proposal as there is sufficient scope available within the site to reconfigure the building if necessary, or relocate the building footprint. In this respect I note the building is setback 5 m from the rear boundary and, as I have outlined previously, the review site does not have a sensitive interface with the properties to the rear because there is a substantial car park and a garage located on or near that boundary. The condition I have imposed is not prescriptive in terms of how the additional front setback is to be provided, but a reduced rear setback would acceptable.

38 I accept Mr Harrison's evidence that with respect to the trees to be retained, including the street tree, adequate separation distances have been provided and subject to standard tree protection measures, these trees are unlikely to be adversely affected by the proposal.

39 Turning now to a consideration of traffic and car parking issues, it was Ms Donald's evidence that the proposed 12 staff would generate a long term parking demand for 8 to 9 spaces and that for a 90 place centre, a short term, morning peak parking demand of 8 to 16 spaces would be generated by parents, with an afternoon peak demand of 12 spaces. The application plans provide for 14 parking spaces of which 6 are allocated to staff, meaning that 3 long term parking spaces will need to be provided off site. With respect to peak parent parking, up to 8 spaces would need to be provided off site in the morning peak and up to 4 spaces in the afternoon peak. It was Ms Donald's evidence that there is sufficient on street parking available to accommodate the demand for on street parking.

40 Ms Donald emphasised that her assessment reflected an indication of peak parking demands and that for the majority of the drop off and pick up times, on site spaces would adequately cater for demand.

41 Ms Donald also suggested an alternative allocation of spaces increasing the number of drop off and pick up spaces on site.

42 Based on Ms Donald's evidence, the demand for on street parking will be limited to short periods during the peak morning drop off and to a lesser extent afternoon pick up periods, and that for the balance of the day, the car park will be significantly underutilised. I do not think it is appropriate that car parking for uses of this type ought to be designed so as to accommodate peak parking demands on the site if this then leads to an expanse of on site car parking which is left unused during the great majority of the day. Nor do I think it is appropriate for staff to be parked on street when there is ample capacity within the on site car park to accommodate staff car parking, except for the relatively short morning and afternoon peak periods.

43 I am satisfied that the proposed 14 parking spaces is satisfactory. However the management of the car park in a manner which contributes to its effective functioning is a matter to which the operators of the centre, and the Council, ought to turn their minds. To this end I have imposed a condition requiring a management plan to be prepared by the applicants and approved by the Council. I do not intend to be prescriptive about the matters which the management plan ought to address but it would be my expectation that it would contain provisions outlining the allocation of staff car parking, drop off and pick up parking, and the minimisation of on street parking outside the short, morning and afternoon peak periods.

44 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should set aside and a permit granted.

45 In deciding the conditions to be included on the permit I have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons.

[1]Jones v Boroondara CC [2006] VCAT 1833 P793/2006