The decision of the responsible authority in permit application PP05/01038 is set aside

A permit is granted in relation to land at 47 - 49 Glen Iris Road, Glen Iris. The permit will allow the use and development of the land for the purpose of a child care centre generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans submitted with the application but modified to show:

(a)

A notation that the east facing full length windows to Playroom 4 on plan 3001 are of obscure glass, to correspond with the ground floor plan (1001).

(b)

A notation that 2.1 metres of headroom clearance is being provided throughout the car park;

(c)

The provision of acoustic fencing around the northern, eastern and southern boundaries of the subject site;

(d)

The provision of an appropriate area and location for the storage and collection of refuse.

2 The layout and description of the use on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

3 All security alarms or similar devices installed on the land must be of a silent type approved by the Standards Association of Australia and must be connected to a registered security service.

4 Prior to the endorsement of the plans in Condition 1, a waste management plan must be submitted to the Responsible Authority for approval. Such plan must provide details of a regular private garbage collection service to the use on the subject land, including information regarding the type of refuse bins, type/size of trucks, means of accessing bins and frequency of refuse collection, to the satisfaction of the Responsible Authority. Once approved, such plan must be implemented to the satisfaction of the Responsible Authority.

5 Collection of waste must be conducted so as not to cause any disturbance to nearby residential properties and may only occur between the hours of 7.00am and 6.00pm Monday - Friday to the satisfaction of the Responsible Authority.

6 All bins and receptacles used for the collection and storage of garbage, bottles and other wastes must be kept in a storage area to the satisfaction of the Responsible Authority. This storage area must be:

(a) properly paved and drained to a legal point of discharge;

(b) screened from view with a suitably designed enclosure;

(c) maintained in a clean and tidy condition free from offensive odours;

to the satisfaction of the Responsible Authority.

7 No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

8 Prior to the commencement of any site works whatsoever, the owner must submit a Construction Management Plan to the Responsible Authority for approval. No works are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan will be endorsed to form part of this permit and must be implemented to the satisfaction of the Responsible Authority. The Plan must be to the satisfaction of the Responsible Authority and must provide details of the following:

(a) hours for construction activity in accordance with any other condition of this permit;

(b) measures to control noise, dust, water and sediment laden runoff;

(c) the location and design of a vehicle washdown bay for construction vehicles on the site;

(d) the location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows. Any basement carpark on the land must be made available for use by sub-constructors/tradespersons upon completion of such areas, without delay;

(e) measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;

(f) contact details of key construction site staff;

(g) the location of any site sheds and the like; and

(h) any other relevant matters.

9 All works including earthworks, demolition and construction activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the Responsible Authority:

Driveways and Car Parking areas to be constructed

10 Before the use starts or any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be:

(a) Constructed;

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

(c) Surfaced with an all weather seal coat {or surfaced with compacted crushed rock or gravel};

(d) Line marked to indicate each car space;

(e) Clearly marked to show the direction of traffic along the access lanes and driveways;

to the satisfaction of the Responsible Authority.

11 Car spaces, access lanes and driveways shown on the endorsed plan must not be used for any other purpose, to the satisfaction of the Responsible Authority.

12 Prior to the commencement of any works associated with the use and development hereby approved, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm. The plan must be generally in accordance with the plan tabled at the hearing of the Victorian Civil and Administrative Tribunal at the hearing on 30 June and 21 July, 2006 (prepared by Michael Smith & Associates, Project No. 05-061 Rev. A, dated 2-6-06) and must incorporate:

(a) an accurate survey of all existing vegetation to be removed and retained and other natural features;

(c) a schedule of all proposed trees, shrubs and ground cover, which will include the location, height and spread at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

(d) paving, retaining walls, fence design details, and other landscape works including areas of cut and fill and finished site levels;

The plan must be to the satisfaction of the Responsible Authority. When the plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

13 An in-ground sprinkler system or like alternative must be installed in all landscaped areas, to the satisfaction of the Responsible Authority.

14 Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the commencement of the use.

15 All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

16 Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

17 Any new vehicle crossover or modification to an existing vehicle crossover, must be constructed in accordance with Council's standard details. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

18 Without the further permission of the Responsible Authority, the use approved under this permit must operate only between the hours of:

Monday to Friday (except Public Holidays) - 7.00am to 6.30pm.

19 Without the further permission of the Responsible Authority, the use must not provide care for more than eighty (80) children at any one time.

20 Without the further permission of the Responsible Authority, the use must not operate with more than twelve (12) staff at any one time.

(a) The development and use does not start within two (2) years of the issue date of this Permit; or

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

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) 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 Cicero called Mr M Negri, town planner and Mr J Higgs, traffic engineer

Mr C Newton Brown of Counsel appeared for J & I Francis, F Allt-Graham, T Burnett, E Morton, D Stevenson, J Hooper, E Moore, R Bell, I Kovacevic, F O'Connell, J McKenzie.

R & B Bond, F Harper & J Hooper appeared on their own behalf

1 This is an application to review the decision of the responsible authority to refuse permission for the use of the land for the purpose of a child care centre at 47-49 Glen Iris Road, Glen Iris. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The proposed development fails to adequately fulfil the objectives, policies and performance standards of Clause 22.04 of the Boroondara Planning Scheme (Discretionary Uses in Residential Areas policy).

2. The design, layout and massing of the proposed development would be incompatible with the neighbourhood character, fails to respond to the prevailing pattern of development nearby and would be detrimental to the visual amenity of the area.

3. The loss of mature vegetation from the site would have a detrimental impact on the Glen Iris Road streetscape.

4. The proposal would result in excessive visual bulk to adjoining residential properties to the south and east.

5. The east facing windows of Playroom 4 will result in a loss of privacy upon the adjoining secluded open space of the residential property to the east with respect to overlooking.

6. The proposed number of car parking spaces on the site is insufficient and in non-compliance with Council's Discretionary Uses in Residential Areas policy.

7. The proposed development would generate traffic hazards in Glen Iris Road as a result of the location of the main entry relative to the car park, the development's proximity to a busy intersection, the need for visitors to reverse from the car park should car park be full and lack of a drop off - pick up area within the development site.

2 At the commencement of the hearing Mr Cicero applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Cicero's request.

3 It is proposed to use and develop the site for the purpose of a child care centre, accommodating up to 80 children. The two dwellings which currently occupy the site are to be demolished and replaced with a purpose built facility comprising a single storey building constructed partly over an undercroft car park which is to be located on the southern side of the site and which provides for 15 parking spaces and vehicular access from Glen Iris Road.

4 The facility is proposed to provide five separate play rooms, with outdoor play areas located at ground level on the northern part of the site, and above the car park in the south east corner of the site.

5 The proposed hours of operation are 7.00 am to 6.30 pm.

6 The site is located on the eastern side of Glen Iris Road commencing approximately 24 m to the south of the intersection with Toorak Road. The site is comprised of two titles and has a frontage to Glen Iris Road of 51.82 m, a depth of 30.48 m and an area of 1579 m2. A dwelling currently occupies each lot and these dwellings are intended to be demolished. The site is well vegetated with some attractive, mature canopy trees within the setback to Glen Iris Road.

7 The site is located in a predominantly residential area. Abutting the review site to the north is a single storey dwelling fronting Toorak Road. To the south the site abuts a medium density housing development comprising five double storey dwellings and a communal tennis court. The dwelling immediately abutting the site's southern boundary has its secluded open space adjoining the common boundary. Abutting the review site to the east is the sideage of a residential property fronting Toorak Road. The western side of Glen Iris Road is also residential and is characterised by a mix of single storey, detached dwellings, and larger medium density housing developments near the Toorak Road intersection.

8 Glen Iris Road is a north/south road extending from Camberwell Road to High Street. It has a single lane carriageway with a 12 m width within a 20 m wide reservation. The intersection with Toorak Road is controlled by traffic lights. Parallel parking is permitted on both sides of the road. A bus stop is located outside no. 47 Glen Iris Road.

9 The site is zoned Residential 1 under the Boroondara 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.

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

11 No overlay controls apply to the site.

12 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.

13 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. The Local Planning Policy Framework also recognises the desirability of providing accessible community and social infrastructure but there is also an emphasis on ensuring that such facilities are appropriately located.[1] Clause 22.04 is a Discretionary Uses in Residential Areas Policy. The objective of the policy is "to ensure the sensitive integration of discretionary uses into their surrounding areas". The following principles are expressed in the policy:

•

The discretionary use provides services that respond to local need.

•

The discretionary use minimises its impact on existing residential areas.

•

The creation of clusters of non-residential activity be avoided.

•

New buildings and alterations to existing buildings complement the appearance of nearby dwellings.

•

Sites previously used or constructed for non-residential purposes be favoured.

•

The demolition of existing dwellings be minimised.

14 With respect to uses such as child care centres, the policy aims to minimise intrusion into residential areas and to minimise the adverse impacts of such uses on the road network and neighbouring properties through the siting and design of buildings, landscaping and the exercise of control on activities including hours operation. A series of performance standards are also specified. The standards relevantly state that these uses should preferably be located abutting a Road Zone or collector road, or near a commercial centre, with a spread of operating hours being 7.00 am - 10 pm Monday - Friday, 8 am - 1.30 pm Saturday, and possibly 2 hours on Sunday between 9am and 6pm. Access is preferred from a Road Zone or collector road, or predominantly non-residential road, and new buildings, refuse and car parking areas should be located at least 3m from residential property boundaries. Noise attenuation barriers are encouraged to be constructed where appropriate along any boundaries abutting residential properties and with respect to child care centres specifically, set down and pick up areas are encouraged to be provided on site.

15 Clause 22.03 is a car parking policy. Under this policy parking for child care centres is to be provided at a rate of 0.7 spaces per employee and 0.1 space per enrolled child.

16 The LPPF also strongly emphasises the need for developments to be respectful of the character of the municipality's residential areas.[2]

17 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. I inspected the subject land and its locality unaccompanied by the parties after the hearing.

18 It was the Council's submission that the notwithstanding an acknowledged and documented under provision of child care places within the municipality[3], the current proposal was not supported by the Council because its siting, location and design does not achieve an acceptable outcome having regard to the applicable policy framework. The Council raised the following specific concerns:

a

The scale and bulk of the building is unacceptable from a streetscape and neighbourhood character perspective and in terms of its impact on the amenity of neighbouring properties.

b

The design of the building adopts an institutional form and the car park will be visible from the public domain.

c

The use will generate unacceptable noise impacts on neighbouring properties as a consequence of the location of the car park adjoining the southern boundary and from the siting of outdoor play areas at both ground level and above the car park, abutting residential neighbours.

d

The proposal will result in the loss of established vegetation.

e

The proposal will contribute to traffic congestion and reduced safety pedestrian and traffic safety in Glen Iris Road.

19 The objectors generally supported the Council's submission on these issues. Mr Newton Brown raised in particular concerns about the visual and amenity impacts on the property immediately to the south of the review site. It was his submission that these impacts are unacceptable because they are more severe than those which would be expected from a residential development on the site. Mr Newton Brown's submission in this respect was supported by Mr and Mrs Bond who reside in the property to the south.

20 Mr Newton Brown also submitted that there are superior alternative sites available within the general vicinity of the review site which ought to be favoured over this site for a child care centre of the scale proposed. While Mr Newton Brown acknowledged that the consideration of alternative sites is rarely a relevant factor for the Tribunal to consider, he submitted that the provisions of Clause 22.04 enable this factor to be given appropriate consideration.

21 The objectors also raised specific concerns about the adverse affect the proposal will have on the functioning and safety of Glen Iris Road. It is relevant to note that most objectors indicated that they are not opposed to a child care centre on this site but they are opposed to the overdevelopment associated with the current proposal.

22 The Tribunal has found in innumerable cases over a long period of time, that child care centres are an appropriate use in a residential area. 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, as I have detailed above.

23 This does not mean of course that every application for a child care centre in a Residential 1 zone will or should be successful in obtaining a permit. These uses do have amenity impacts and a balance needs to be struck between accommodating child care centres in residential areas and minimizing the amenity impacts which are associated with them. One of the fundamental prerequisites for achieving this balance is the selection of an appropriate site in the first instance and in this respect the Council's policy at Clause 22.04 provides a quite specific direction that these uses should preferably be located abutting a Road Zone or collector road and that access is preferred from a Road Zone or collector road. Glen Iris Road is not a road in a Road Zone but it clearly fulfils the function of a collector road and was described by the Council as a "fairly busy collector road".

24 There is some irony in the Council's submission that this proposal will generate a potentially dangerous traffic situation because of the site's location on a collector road, given that its policies specifically direct such uses to these locations. I also note that the referral of the application to the Council's traffic engineers did not raise any opposition to the proposal, subject to some modifications to the access and car park layout.

25 The Council's policy that child care centres be located on major or collector roads is sensible in that it is predicated on the quite reasonable assumption that the affects of increased traffic movements generated by the use are better able to be absorbed on sites which have a main or collector road frontage, than sites which are located on local streets. The disadvantage of preferring main or collector road locations is that busy traffic conditions need to be acknowledged and negotiated by those using the centre. The scale and intensity of the proposed use, the design of the vehicular access and egress, the location and layout of the car park and the quantum of the off street parking provided, are all factors which need to be addressed by the applicant in preparing the proposal, and considered by the Council and on review the Tribunal, in determining whether the proposal will compromise the safe and efficient functioning of the road network.

26 In arriving at my conclusion that the proposal is acceptable on traffic grounds, I am influenced by the fact that, apart from some minor criticisms, the Council's traffic engineers concluded that the proposal would be unlikely to notably impact the surrounding road network. I have also been assisted by the evidence of Mr Higgs whose evidence was not disputed by contrary expert evidence.

27 I am satisfied that the provision of 15 on site parking spaces (one less than that required under the Council's policy) is sufficient to accommodate the demands generated by the proposal. I note that it was Mr Higgs' evidence that the peak parking demand will occur during the morning set down period and that during this period, parking for 8 staff and 6 drop off spaces will be required. During the balance of the day, parking will be limited to staff parking (peaking at 9 during mid morning). The parking demand during the afternoon pick up period is, according to Mr Higgs' evidence, expected to be less than the morning peak because the pick up period is spread over a longer period.

28 I am also satisfied that the layout of the car park meets necessary engineering standards and that its location on the site is sufficiently convenient to ensure that regular users of the centre will not be discouraged from accessing it.

29 Some concern was also expressed about the design of the car park and its safety, especially when used by children. While there is always a degree of risk associated with the interaction between children and cars, I accept Mr Higgs' evidence that there is nothing inherently unsafe about the layout of this car park, especially in circumstances where children will only access the car park under adult supervision.

30 Turning to a consideration of the streetscape/neighbourhood character issues, it was submitted to me that the building does not adopt a residential scale and form and that as such, it is inappropriate in a residential context. The proposed building does adopt the form of a purpose built child care centre and as such will clearly have a non residential presence in the Glen Iris Road streetscape. The proposed building is also relatively large, extending some 35 m across the Glen Iris Road frontage. However, the review site is also relatively large, comprising two adjoining lots, and generous setbacks are proposed for the building. While some existing vegetation in the front setback will be removed, there is ample opportunity for replacement planting to be carried out and this, combined with the vegetation which is to be retained, will provide some degree of filtering of the visual impact of the building when viewed from Glen Iris Road. This is not a case in which an attempt has been made to "shoe horn" a large building onto an undersized site, a situation which often leads to a building assuming a dominating presence in the streetscape. This building will be visible in the streetscape, it will clearly be a non residential use and it is likely to assume a degree of prominence in this section of Glen Iris Road, but I do not think it will unreasonably impact on the character of this neighbourhood.

31 As I have stated previously, the existing character of this neighbourhood is quite mixed, with a number of relatively large and prominent residential buildings having a strong influence on the character of the area. The locality is not affected by a heritage or neighbourhood character overlay and, having regard to its location on a busy collector road, its proximity to Toorak Road and the mixed nature of the existing built form in the immediate vicinity of the site, a building of the scale and form of that proposed is capable of being accommodated on this site without compromising the council's neighbourhood character policies.

32 With respect to amenity impacts I need to comment on Mr Newton Brown's submission that the bulk of the building, especially in relation to its impact on the property to the south, would not be acceptable for a residential development of the site and that it should not therefore be considered acceptable for a non residential use. I do not agree with this submission. Mr Newton Brown was unable to identify any standard or objective of Clause 55 of the planning scheme (against which a residential development of the site would need to be assessed) in terms of its relationship with the property to the south. The proposed building is in fact setback 4.6 m from its southern boundary and the wall height of the proposed building (including the under croft car park) at that interface is equivalent to that of the neighbouring two storey dwelling. The overall height of the proposed building does exceed that of the flat roof neighbouring property but the additional height is a result of the use of a pitched roof, which recedes from the southern boundary.

33 A brick garage wall associated with the neighbouring dwelling is located on the common boundary and this provides a physical separation between the two sites which I think the applicant is entitled to rely on and respond to in preparing a design for the review site. Beyond the garage, the common boundary is treated with a timber paling fence with trellis which extends the height of the fence to that which is equivalent to the garage wall. The proposed building will be visible from the secluded open space of the neighbouring dwelling but at a setback of 4.6 m the impact of the bulk of the building is not unacceptable and is not dissimilar in terms of bulk impacts from that which might be expected from many forms of residential development which could be undertaken on the review site.

34 It was also submitted by objectors that the proposal would constitute a clustering of non residential uses in this locality, because of an existing child care centre located on the north side of the Toorak Road and Glen Iris Road intersection. I agree with Mr Negri that Toorak Road provides a significant physical buffer between the two sites and I do not regard that granting of a permit for this proposal as being in conflict with the Council's policy which discourages a clustering of non residential uses in residential areas.

35 I note that that in response to a question from myself, Mr Negri agreed that an acoustic fence which is proposed along the eastern boundary ought to be returned to extend along the southern boundary. I think this is appropriate and I have imposed a condition requiring it to be provided. The form of the fence will need to be to the responsible authority's satisfaction.

36 I agree with Mr Negri's assessment that the affect of increased overshadowing will be minimal from that currently cast by existing fences and dwellings. Overlooking issues have been adequately resolved by the use of screening and placement of windows and noise impacts have been similarly resolved through the use of acoustic barriers where appropriate.

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

38 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] Clause 21.09 Boroondara Planning Scheme.

[3] Boroondara Child Care Strategy July 2003