With respect to planning permit application no. P125/06, the responsible authority's decision is varied. A permit is granted for the use and development of a child care centre, removal of native vegetation and signs generally in accordance with the endorsed plans at 60 and 62 Sherbourne Road Montmorency. The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued on 19 June 2006 but with the following variations:

(i)

Condition 1 is amended to read as follows:

1 Before the use and development permitted by this permit starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans identified as 6056-VCAT, sheets 01 to 07 inclusive, but modified to show:

(a)

A schedule of external materials and colours which includes only muted colours and eliminates bright greens and purples and includes muted green, brown or black colour for all fencing to the street frontages.

(b)

The location of tree protection fencing as required under condition 17.

(c)

The allocation of 11 car spaces for staff.

(d)

Landscaping as required by condition 2.

(e)

Engineering plans showing a properly prepared design with computations for the internal drainage and method of disposal of stormwater from all roofed areas and sealed areas including the use of an on site detention system

(ii)

Condition 15 is amended to read as follows:

At no time may more than fifteen (15) staff directly involved in the care and supervision of children operate in the child care centre at any one time unless otherwise agreed to in writing by the responsible authority.

(iii)

Delete part (d) in condition 26 as set out in the Notice of Decision and replace with the following:

(d) The provision of a footpath along the east side of Hughes Street between Sherbourne Road and the entry to the car park

(iv)

Modify part (f) in condition 26 to read as follows:

(f) Appropriate signs to be installed to demarcate the area along the land's Sherbourne Road frontage where kerbside parking is not permitted under the road rules in the vicinity of the intersection with Hughes Street

(vi)

Conditions 28 to 32 to be renumbered as conditions 27 to 31.

The responsible authority is directed to issue a permit in accordance with this order.

Mr S Koenig, Planning Consultant, Stephan Koenig Planning Pty Ltd.

Mr D Vorchheimer, Town Planner, Russell Kennedy, Lawyers.

1 This matter involves 2 appeals that are seeking the review of the Banyule City Council's decision to grant a permit for the redevelopment of 2 adjoining blocks of land at 60 and 62 Sherbourne Road, Montmorency [the site] for a child care centre. Some of the 10 persons who lodged objections opposing the proposal have lodged an appeal requesting that I set aside the council's approval and direct that a permit should not be issued. The permit applicant has also lodged an appeal against some of the conditions that the council wants to include on the permit.

2 The key issues in this matter are:

Is this use appropriate for this site given planning scheme's policies and the zoning?

Would the proposal be respectful of neighbourhood character?

Would the proposal have an unacceptable impact on the amenity of the area?

Are the conditions disputed by the applicant reasonable and lawful?

3 The site is located on the south west corner of Sherbourne Road and Hughes Street. It is irregular in shape, with frontages of 54.2 metres and 36.35 metres to Sherbourne Road and Hughes Street respectively and an overall area of 2637 square metres. The site is set on mildly sloping terrain, falling by about 6 metres from the southwest to the northeast.

4 There is a single storey dwelling and outbuildings on each of the 2 blocks that make up the site. The buildings are somewhat unremarkable in terms of their appearance, design and condition. The site also supports several trees, both native and exotic. The council considers some of the trees to be environmental weeds.

5 Contextually the site is located within an established residential area with most of the surrounding properties occupied by housing, mainly in the form of single storey detached dwellings on a lot or villa style units. Properties, particularly to the south of the site are well vegetated with many supporting native trees.

6 The most notable exception to the current residential use is on the property immediately to the east of the site, on the southeast corner of Sherbourne Road and Hughes Street. This property is occupied by a single storey building used for a veterinary clinic/hospital. This clinic was established in the mid 1990's after a permit was granted by the former Administrative Appeals Tribunal[2]. A further permit was granted in January 2000 which allowed alterations and additions to the clinic, extension of hours and an increase in the number of practitioners to 3[3]. A small neighbourhood activity centre exists further west centres around the Sherbourne Road/Mountain View Road intersection.

7 Sherbourne Road is a collector road that carries significant traffic. In the vicinity of the site, Sherbourne Road provides for one lane of traffic in each direction and a linemarked parking lane on both sides. Bus services run along Sherbourne Road.

8 Hughes Street is a local street that runs between Sherbourne Road and Baldwin Avenue, another local residential street. Hughes Street serves as the frontage to a number of residential properties containing detached houses as well as providing access to Diedre Court, a small residential cul de sac. Hughes Street has a sealed pavement with kerb and channel for about 10 metres from Sherbourne Road with the rest having an unsealed gravel surface with no "constructed" street drainage. Diedre Court also has a gravel pavement. There are no footpaths in Hughes Street or Diedre Court.

9 The Hughes Street/Baldwin Avenue intersection is somewhat unusual in that kerb and channel running along the north side of Baldwin Avenue continues across Hughes Street. This requires cars turning into Hughes Street to mount the kerb and channel. I understand that in previous years, a series of posts provided a more formal blockage to traffic at this intersection, however, these have been removed.[4]

10 The proposal involves the redevelopment and use of the site for a child care centre that provides 120 places[5].

11 The centre is to operate from Monday to Friday between the hours of 6.30 am and 7.00pm. There has been some confusion as to staff numbers. The applicant's documentation suggested that the total staff would be 15 persons; however, Mr Koenig explained that this was a reference to persons directly involved in the care of children. For the centre to operate there could be a need for up to a further 7 staff for management, administration, cleaning etc at some times.

12 The development involves the demolition of the existing buildings and the construction of a new predominantly single storey purpose built building that would occupy about 33 per cent of the site. The building is to be positioned on what could be described as the northern half of the site with a staggered setback of at least 6 metres to Sherbourne Road. It is designed to present 2 separate modules to Sherbourne Road with a recessed section setback about 20 metres from the frontage providing for an internal connection. The building provides for 8 rooms where children would be accommodated as well reception, administrative and service areas. A small store is to be provided at first floor level. The building is contemporary in its design utilising materials such as bricks, rendered blue board and colourbond roofing. Outdoor play areas are to be mainly provided to the north, east and west of the building.

13 The southern part of the site is to be largely used for car parking with access from Hughes Street. The car park provides 26 car spaces. Entry/reception area into the building is oriented toward the car park.

14 Other aspects of the proposal involve the removal of up to 30 trees, 13 of which are native, with the other 17 considered by the council to be environmental weed species; and the erection and display of 3 signs; 1 adjacent to Sherbourne Road, the other 2 on the building facing Hughes Street and the car park.

15 Under the planning scheme, the site is zoned Residential 1[6]. A child care centre is a discretionary use within the zone that requires a permit. A permit is also required to construct the building under the zone provisions.

16 The site is also covered by 2 overlays.

17 The Vegetation Protection Overlay affects the site, with schedule 1 being applicable [VPO1]. A permit is required under this overlay to remove vegetation identified in the schedule. The applicable schedule states that a permit is required to remove native vegetation, but not environmental weeds. The overlay provisions and the schedule set out various matters to be considered in relation to the vegetation removal issue.

18 The second overlay affecting the site is the Design and Development Overlay, with schedule 8 being applicable [DDO8]. A permit is required for the construction of buildings and works under this overlay unless exempted by the schedule. A permit is required under the DDO given the construction of fences and the relationship between the building and trees to be retained on the site.

19 A permit is also required for the signs under clause 52.05.

20 Car parking requirements are set out at clause 52.06. This clause does not set out a specific requirement for a child care centre. In such circumstances, clause 52.06-1 says that the amount of car parking must be to the satisfaction of the responsible authority.

21 The various decision guidelines within the scheme require that consideration be given to a number of factors including planning policy; the purposes of the zone and overlays that apply; orderly planning of the area and the impact on amenity. I will discuss these as appropriate.

22 I now turn to the consideration of the key issues in this matter.

Is this use appropriate for this site given the planning scheme's policies and the zoning?

23 It was submitted on behalf of the objectors that the site is unsuited to being redeveloped and used for a child care centre. In particular Ms Lappin submitted that the proposal is inappropriate given that the site is not located in a preferred location encouraged by the council's "Child Care Centre Guidelines"; that is, on land zoned for business purposes or on residential land near an activity centre. Further, it was argued that the location of the proposed child care centre could not be justified on the basis of "need" given the availability of child care places in Victoria generally and at nearby child care facilities.

24 In relation to these matters, there are a number of points to be made.

25 The first is that while the council strongly encourages the provision of child care centres in and around business areas, it would be inappropriate to conclude that the policy discourages such facilities to be located on appropriate sites that are zoned residential. Indeed, the policy identifies sites on main roads and in a corner position as worthy of investigation for this use given that "they offer greater flexibility of site layout and options with regard to car park positioning". The policy acknowledges that care needs to be taken to ensure that the amenity of residential areas is "safeguarded", a matter that is appropriate and reasonable. However, if it can be demonstrated that the amenity impacts can be kept to reasonable levels, it would not be contrary to the intent of the policy to locate a child care centre on land zoned residential.

26 Second, the policy position set out in the guidelines is not dissimilar to that set out in the local policy at clause 22.09 of the scheme which acknowledges that "Residential zones can accommodate a range of non-residential uses which provide services........". This acknowledgement accords with the scheme's statutory provisions which provide the discretion for a permit to be issued for non residential uses in residential zones. Further, the policy acknowledges that such uses are necessary "to serve the needs of the local community......" and that they need to be "readily accessible". However, like the guidelines, the policy makes it clear that non residential uses should be located and designed so as to not adversely impact on the amenity of the surrounding residential area. Again, the policy position is not one where this type of use cannot be considered in a residential setting; rather, the policy position is that such use should not have unreasonable impacts.

27 Third, the purpose of the Residential 1 zone is not limited to providing for purely residential use. The zone purpose makes it clear that in appropriate locations, land in the zone may allow for ".......educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs." Quite clearly, the purpose of the zone contemplates that it can accommodate non-residential uses.

28 Fourth, with respect child care centres in particular, there have been a many cases where various divisions of the tribunal have concluded that this use can be appropriately accommodated on land zoned Residential. In this regard, I refer to the following extract from my decision in Victory Investment Group v Whitehorse CC[7]:

"..........there is also a relatively long line of decisions where the tribunal and its predecessors have accepted that child car centres are appropriately located in residential areas. For example, in Lloyd v Ballarat CC [2005] VCAT 515 tribunal said: "I agree with Mr Crawford and find, as many other divisions of the Tribunal have in the past, that child care centres are a suitable use in residential settings [see for example Hub Centre Pty Ltd v Whitehorse CC (2004) VCAT1066 (7 June 2004) and Kirby v Mitchell SC (2004) VCAT 633 (7 April 2004)]."

29 This view is supported by Member Hewet's decision in Jones v Boroondara CC[8]:

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.

30 Fifth, although this site does not meet all of the crietria set out in the council's guidelines, it nonetheless has a number of attributes which favour its potential to be redeveloped for a child care centre. These include its relatively large size; frontage to a main road; corner location; proximity to other commercial uses and the availability of public transport at its doorstep.

31 Ms Lappin submitted that a fcator that should weigh against the grant of a permit for this facility on land zoned residential is that there is no demonstrated need for this type of facility in the local area. In response, Mr Koenig submitted that the proposed centre would largely serve a local catchment, whether it be residents or workers.

32 Based on the material before me, I am not in a position to come to the conclusion that there is a substantial shortage of child care places in the area and therefore that there is a strong "need" for the facility. However, this is not something that ought to be fatal to the proposal. In this regard I refer to the principle set out by the former Planning Appeals Board in Shell Company of Australia Ltd and Others v City of Frankston and Another

"If an applicant can show a need for a proposed use, then this factor may outweigh other considerations adverse to the use[9]."

".........a lack of need will rarely, if ever, be a ground for refusing to grant a permit."

34 My conclusion is that the zoning of the land and planning scheme's policies do not support the "in principle" view that it is inappropriate to redevelop this site for a child care centre. Rather, it seems to me that the whether or not the site ought to be used and developed for this purpose will largely depend on whether the proposed development has responded appropriately to neighbourhood character and amenity of the surrounding residential area is not impacted upon in an unreasonable way. It is in this light that I now turn to the next key issues.

Would the proposal be respectful of neighbourhood character?

35 Ms Lappin submitted that the proposed development would have an unacceptable impact on the character of the area. Ms Lappin said that the site is located in an area which clearly has a bushland character that provides important habitat for fauna. Ms Lappin identified 2 main attributes that give the area this character. The first is the dominance of vegetation cover and tall canopy trees. The other is the unconstructed nature of Hughes Street and Diedre Court. It was submitted that the proposed development does not respond appropriately to these characteristics. It was submitted that the extent of vegetation removal would result in the site losing its bushland feel and taking away its habitat value. Further, the construction of the northern end of Hughes Street together with the extra traffic that would be introduced into it would detract from the bushland feel.

36 It is clear that vegetation is an important element in defining the character of the area within which the site lies. Under the council's neighbourhood character study, the site is located within a Bush Garden Precinct [BG1]. The remnant indigenous vegetation and canopy trees are identified as valued elements of the character in the study and the removal of such trees is considered a threat to that character. The importance of vegetation is also recognised in the schedules to the VP01 and DDO8. The objectives of the VPO1 recognise the need to conserve vegetation; the need to protect habitat and to encourage the retention of vegetation. The DDO8 objectives build on this by encouraging development that retains vegetation and does not break the tree canopy.

37 It is fair to say that a significant number of trees are to be removed as part of this proposal. However, the assessment of whether the proposal is satisfactory is more complex than simply looking at the number of trees to be removed. Other factors come into play.

38 It is relevant to consider the context of the land. The Bush Garden area is relatively large and the description provided in the character study is of a general nature. Not every part of the area looks or feels the same. For example, it would be fair to say that there is a substantial difference between the character of properties along Sherbourne Road and those to the south along Hughes Street and Diedre Court. The reality is that Sherbourne Road is far more urban in character. This is due to the nature of the road itself; the amount of traffic that uses it and the nature of development on properties that front onto it which include commercial uses and medium density housing. The nature of the residential area further south is quite different and more in line with the bush garden character outlined in the study. The context of the site is such that is capable of supporting a more urban form and more intense development compared to a site located further into the residential area.

39 It is also relevant to note that many of the trees to be removed are considered by the council to be environmental weeds. I accept that these trees make a contribution to the vegetated feel of the area; however, what also needs to be considered is the environmental damage that they can cause particularly those that have the propensity to self seed and spread across an area. This is why these trees are not protected by the VPO1. The removal of this vegetation is appropriate.

40 Although native trees are being removed, it also needs to be acknowledged that a substantial amount of vegetation is being retained. This is particularly so along the site's frontages to both Sherbourne Road and Hughes Street.

41 The proposal also provides for new landscaping which incorporates native trees. I accept that in the short term the new landscaping would not make a significant contribution to the bushland/landscape character of the area; however, this would change in the medium to long term.

42 Further, it is relevant to consider the design of the building. It is a large building; however, the design has been modified to give it a largely single storey profile. The building will sit well below the height of the canopy trees that exist. The form along Sherbourne Road has been broken into 2 elements to give the sense of separate buildings along this frontage. The materials, colours and finishes are compatible with the bushland feel.

43 With respect to the points made in the preceding paragraphs, it is relevant to note that the council's view that the proposal has been designed to minimise the extent of native vegetation removal; to make reasonable allowance for the retention of existing vegetation; that it provides for additional landscaping and the profile of the building represents an appropriate response to the DDO8 provisions.

44 There is no doubt that the proposal will result in the site having a more urban feel when it is constructed. The removal of vegetation and the new building will clearly change the appearance of the site which, at present, supports a very modest level of development. However, on balance, I agree with the council's position that the context of this site is such that it can support more intense development and that the development represents a reasonable response to neighbourhood character and vegetation retention.

Would the proposal have an unacceptable impact on the amenity of the area?

45 In addition to the impact that the proposed development would have on the character and amenity of the physical environment, objectors also raised amenity concerns with respect to other matters, particularly the parking and traffic impacts.

46 With respect to parking, Ms Lappin submitted that the provision of 26 car spaces on the site would not be sufficient to cater for the demand generated by staff and parent drop off/pick ups at peak times. The concern was that this would result in parking pressure on Hughes Street; something which the objectors submitted is inappropriate given the quiet nature of this residential street and the standard of construction.

47 While I appreciate the residents concerns with respect to this issue, the facts of this case and evidence do not support the view that the car parking resources available would not be able to accommodate the demand generated by the proposed centre.

48 Mr Turnbull, a traffic engineer called by Mr Koenig, gave evidence that the surveys undertaken by his firm revealed that child care centres of this size would generate a peak parking demand of about 22 spaces based on a parking ratio of 0.18 spaces per child. Mr Turnbull arrived at this parking ratio figure based on the results of surveys of 4 child care centres in the City of Casey that provide 80 or more places.

49 Further, it is relevant that Mr Turnbull's figures also took into account total staff numbers. In the case of the largest centre surveyed which had 115 places, the maximum number of staff on site was 21; however, only 15 were present at the peak drop off and pick up times. This is plausible as it would be expected that the peak staff would occur during the day when the number of children on the site can be expected to be at the maximum, with the need for staff reducing at either end of the day when the number of children would not be at the peak.

50 While I accept Ms Lappin's assertion that these surveys are not locally based, nonetheless the parking ratio applied by Mr Turnbull is generally consistent with that found to be acceptable by various divisions of the tribunal in recent cases involving stand alone child care centres that provide 80 or more places[10]. With the exception of 1 case[11], the on site parking provided varied between 0.16 spaces to 0.19 spaces per child. This is very consistent with the ratio supported by Mr Turnbull. The exception was required to provide parking at ratio of 0.24 spaces per child. The provision of 26 spaces on site as proposed in this case would be at a ratio of 0.22 spaces per child. Based on the review of recent decisions, it is clear that the on site parking being provided in this case is at the higher end of the scale.

51 Further, it is appropriate to take into account the parking resources available off site. This site has the benefit of a reasonably long frontage along Sherbourne Road. A parking lane is line-marked. I see no reason why these spaces would not be used by parents dropping off children during peak times, particularly if a footpath from Sherbourne Road is provided along the site's Hughes Street frontage. Further, the applicant has agreed to construct that section of Hughes Street adjacent to the site. Again, this would result in formal kerbside parking adjacent to the site. While there is a dispute in the conditions appeal about the width of the road and whether it would be able to accommodate kerbside parking on both sides, nonetheless, kerbside parking would be available next to the site on at least 1 side. About 7 kerbside spaces would be available along the site's frontages. It is reasonable to rely on this parking at peak demand times.

52 The conclusion I have reached is that the on site parking together with the street parking available adjacent to the site would be able to accommodate the peak demand generated by the centre. Further, I am satisfied that the parking would accommodate the demand associated with 15 staff caring directly for children plus additional administrative and service support staff.

53 With respect to traffic, the residents concern is that there will be an unacceptable increase in traffic along Hughes Street caused not simply because of the existence of the centre but also because of the location of the car park and centre entry.

54 No doubt, the use of this site for a child care centre would cause more traffic to enter Hughes Street; however, the level of congestion would not be like that associated with a school which would have a shorter but sharper peak with children coming and going within a more confined timeframe. With a child care centre, pick up and drop offs would be more spread out.

55 Given this, I agree with Mr Turnbull's view that this impact would be largely localised adjacent to the site near Sherbourne Road. I have come to this conclusion bearing in mind that Hughes Street adjacent to the site is to be properly constructed and it would provide the more direct route to the main road system provided via a paved surface to Sherbourne Road. The tribunal in Famwood concluded that it would not be acceptable to have traffic come into the veterinary clinic site via Hughes Street; however, the construction of the northern end of Hughes Street was not envisaged as it is in this case.

56 I also agree with Mr Turnbull that the unconstructed nature of Hughes Street south of the site together with the awkwardness at Baldwin Avenue given the need for vehicles to mount the kerb and channel will not make it the more desirable route.

57 There will be a traffic impact; however, I do not consider that it is an unreasonable impact given that it would be largely localised to a corner site fronting a relatively busy road.

58 A concern was also raised about the impact of increased airborne particles. If the road surface in Hughes Street is not suitable for health reasons, then this should be addressed irrespective of this proposal. That is a matter for the residents and the council.

59 I find that the site is suitable for a child care centre given its location, zoning and planning policy. While the proposal will change the appearance of the site, I agree with the council's position that the response to neighbourhood character and vegetation issues is acceptable given the context. I also conclude that satisfactory parking is to be provided and the traffic impacts are acceptable. Accordingly, I agree with the council that a permit should be granted.

Are the conditions disputed by the applicant reasonable and lawful?

60 The last key issue relates to the permit applicant's appeal against conditions.

61 This condition requires the plans to be amended to show the provision of a turning bay so that vehicles can enter and leave the car park in a forward direction. A turning bay has been shown on the amended plans; however the number of car spaces has been reduced from the original 27 to 26. Mr Vorchheimer agreed that in light of the evidence, the car parking as shown on the amended plans is satisfactory and the condition can be deleted. I agree.

62 The condition requires the allocation of 15 spaces for staff with the balance for visitors. This condition was initially predicated on the council's understanding that there would be up to 15 staff on site with 1 space allocated to each. As matters have transpired, the 15 staff referred to by the applicant are the carers with additional administrative and service staff required at other times. I have already found that the provision of 26 spaces on site is satisfactory with kerbside parking providing further convenience and opportunity for any overspill that may occur.

63 The key car parking impact to be managed is that which occurs at peak times. Mr Turnbull's evidence included an example of a parking demand at a centre of similar size [115 places] which had 15 staff in attendance at peak parking demand time. Importantly, the peak parking demand time did not coincide with the time that staff numbers peaked. It is also reasonable to take into account that not every staff member would drive.

64 The allocation of staff spaces as proposed by the council would mean that there could be times when staff would be forced to park on street even though there are vacant spaces [allocated to visitors] during non-peak parking generation times. I agree with Mr Turnbull that the appropriate course would be to require a minimum number of staff spaces to be made available at the peak demand time, with the flexibility for the balance of the spaces to be made available for staff and/or it is appropriate. Accordingly I agree with Mr Turnbull that the condition should be reworded to simply require the allocation of 11 spaces within the car park for staff. This has been shown on the amended plans; however, the notation relating to the identification of staff spaces should be made clearer. The condition will therefore be modified.

65 Condition 26 requires the construction of that section of Hughes Street directly adjacent to the site and specifies standards to be met. The applicant challenges several parts in the condition that require the road pavement to be constructed to a width of 7.6 metres and other measures that are essentially geared toward discouraging vehicles leaving the car park from travelling south along Hughes Street.

66 Mr Turnbull expressed the view that a road pavement width of 7 metres would be sufficient to cope with the traffic associated with the proposal and to allow kerbside parking on 1 side of Hughes Street. He agreed that the extra 600mm width would allow for kerbside parking on both sides.

67 I conclude that the paving width required under part (a) should be kept to 7.6 metres as required by the council as it allows for kerbside parking on both sides. This is desirable and appropriate given the absence of formalised kerbside parking along Hughes Street south of the site.

68 I agree with Mr Turnbull that the provision of a speed hump as required in part (d) to demarcate the transition between the constructed and unconstructed part of Hughes Street is unnecessary. This can be done in other more simple ways. I will delete this part of the condition.

69 However, while it is likely that the number of vehicles leaving the car park and then travelling south along Hughes street will account for a small amount of traffic, it desirable to discourage this traffic given the unconstructed state of Hughes Street and the way it intersects with Baldwin Avenue. The requirement in part (e) to provide a no right turn sign is appropriate.

70 I see no reason to have "no stopping signs" generally along Sherbourne Road; however, it would be desirable to introduce a "no standing sign" Sherbourne Road to clearly mark the legal distance that cars must be parked away from the intersection with Hughes Street. I will modify part (f) of the condition to reflect this.

71 As originally included on the Notice of Decision, this condition requires the permit applicant to assess the traffic impacts 6 months after the use commences and then to pay to the council up to $50,000 if further traffic management works are required.

72 It is relevant that Mr Vorccheimer conceded that the condition, as included on the Notice of Decision, is unlawful given the provisions of Section 62(5) and 62(6) of the Planning and Environment Act 1987. Mr Vorchheimer submitted a modified version of the condition which he submitted is lawful that requires the applicant to make a contribution to the cost of further traffic management works if deemed necessary by the council.

73 Putting aside whether the condition would be lawful, I consider that such requirements are unreasonable having regard to the merits of the case. I have already come to the view that the traffic impacts on Hughes Street south of the site would not be significant given its unconstructed nature, the awkwardness of mounting the kerb at Baldwin Avenue and the shorter and more direct link to Sherbourne Road via a paved surface. The inclusion of a condition requiring a traffic sign that vehicles leaving the car park cannot turn right further reduces the opportunity for traffic to go south of the site.

74 I will delete this condition. The note included as the end of condition 1 is therefore also inappropriate.

75 I agree with the council that a permit should be granted. I will however, modify the conditions as set out above. The modifications to the conditions will include a change to condition 15 with respect to staff numbers to make it clear that it specifies the maximum number of staff to be directly involved in the care of children is not to exceed 15. Further I note that a number of the changes required in condition 1 have been included on the amended plans substituted at the commencement of the hearing. Accordingly I will revise condition 1 so that it refers to the amended plans and the changes to be made to them.

[1] At the commencement of the hearing, the name of the permit applicant and applicant for review in P2179/2006 was amended to Billings Family Investments Pty Ltd, Long Family Property Holdings Pty Ltd, and DDJBC Investments Pty Ltd.

[2] Famwood Pty Ltd v City of Banyule [Appeal Nos. 1995/14383 and 1995/18971]

[3] Eversafe Service Pty Ltd vs BanyuleCC and Ors [2000] VCAT 530

[4] This arrangement can be seen on page 7 of the book of photographs tabled by Ms Lappin.

[5] After no objection form the council or the objectors, I amended the formal description of the permission sought in the permit application to "develop and use of the land for a child care centre with associated removal of native vegetation and the display of Business Identification Signs" as well as the plans of the proposal pursuant to the power in clause 64 in schedule 1 of the VCAT Act.

[7] [2005] VCAT 1863

[8] [2006] VCAT 1833

[9] Shell Company of Australia Ltd and Others v City of Frankston and Another [P82/1527 8APA 126]

[10] See Jones v Boroondara [2006] VCAST 1833; Persir Pty Ltd v Casey CC [2006] VCAT 1371; Hughes v Glen Eira CC [2006] VCAT 1447; Jones Architects v Boroondara CC [VCAT] 1264; Mysore and Assoc Pty Ltd v Monash CC [2006] VCAT 1346 and Gumnut Developments Pty Ltd v Banyule CC [2005] VCAT 1467. I have reviewed cases from 2006 however fell it appropriate to include the finding in a 2005 case in the City of Banyule.

[11] Mysore and Assoc Pty Ltd v Monash CC [2006] VCAT 1346