[2005] VCAT 515

The order of the Tribunal is that the decision of the Responsible Authority is set aside. In permit application PLP2004/457 a permit is granted and directed to be issued for the land at 2 Stirling Drive, Lake Gardens. The permit will allow the use and development of the land for a child care centre in accordance with the endorsed plans and subject to the following conditions:

1 Before the development 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 described as Plans P2, P3 and P4 dated 6/7/04 prepared by Peter R Wilsdon Architect but modified to show:

(a)

The extended wing of the building with a minimum setback of 1m from the northern site boundary;

(b)

All car spaces and access aisles fully dimensioned, to the satisfaction of the Responsible Authority;

(c)

The provision of four parking bays (Spaces 1, 2, 4, and 5) to be nominated as ten minute drop-off/pick-up bays. Signs (measuring no more than 0.4 sq.m) must be erected promoting the use of the four parking bays as Drop-off/Pick-up Bays Only. Car space 1 is also to be designated as a loading bay;

(d)

Car spaces 6 to 19 inclusive set aside for staff parking identified with appropriate signage no more than 0.4sq.m in area;

(e)

The provision of a pedestrian path conveniently located to the short term parking bays in the carpark providing direct access to the building from within the site;

(f)

The location, design and height of all proposed fences and gates. Fencing along the Stirling Drive and Gillies Street boundaries abutting the outdoor play area must be designed so as to withstand the intrusion of a vehicle travelling at 70km/hr into this area. Such fence must be designed in accordance with computations prepared by a suitably qualified engineer submitted to and approved by the Responsible Authority;

(g)

Any modifications to the layout and design of the premises required by the Department of Human Services (DHS), with such modified plans accompanied by a written statement from DHS confirming their acceptance of the plans;

(h)

Eaves to be included on the extension;

(i)

Signage plan;

(j)

The location of a refuse/recycle storage and collection area, screened from view;

(k)

The landscape plan amended to show:

shrub planting along the St. Robbins Avenue frontage as "Orange Jessamine") instead of the proposed daisies to soften the appearance of the carpark from this street;

the retention of the Birch trees along the Gillies Street frontage and in the western play area and the retention of the She-Oak in the carpark.

2 The use and/or development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3 Before the use of the site commences or occupation of the buildings commences all landscape works forming part of the endorsed Landscape Plans must be completed to the satisfaction of the Responsible Authority.

4 All underground or surface works that are considered necessary by the Responsible Authority shall be constructed in accordance with plans, computations and specifications submitted to and approved by the Responsible Authority prior to the commencement of construction. Such drainage works shall be designed and installed to transport stormwater run-off from the subject land and surrounding land or adjoining road(s) to an approved point of discharge.

5 No stormwater shall drain or discharge from the land to adjoining properties without the prior approval of the Responsible Authority. All works shall be completed to the satisfaction of the Responsible Authority prior to the commencement of the use hereby approved.

6 A preliminary site investigation report in accordance with Section 3 of AS4482.1-1997, prepared by an appropriately qualified professional, must be submitted to the Responsible Authority prior to any application for building approval on the land and/or the use hereby approved commencing.

7 Should the preliminary site investigation report indicate that contaminating activities took place on the site or that contaminants are present, a detailed site investigation in accordance with Section 4 of AS4482.1-1997 shall be undertaken. The detailed site investigation report shall include any recommended remediation works and a statement as to the suitability of the land for a child care centre use.

8 If the report is accepted by the Responsible Authority, the remediation works shall be completed by the applicant to the satisfaction of the Responsible Authority prior to any application for a building approval on the land and/or the use hereby approved commencing.

9 If there are concerns about the nature and extent of the contamination found in the preliminary and detailed site investigation reports, the Responsible Authority reserves the right to require a statutory environmental audit to be undertaken. In this case either:

(a)

A certificate of environmental audit shall be issued for the land in accordance with Part IXD of the Environment Protection Act 1970 prior to the issue of the Statement of Compliance; or

(b)

An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the intended use prior to the commencement of the permitted use.

10 Before the use or occupation of the development starts, the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

(a)

Constructed with suitable paving;

(b)

properly formed to such levels that they can be used in accordance with the plans;

(c)

surfaced with an all-weather wearing course;

(d)

drained;

(e)

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

to the satisfaction of the Responsible Authority.

11 Without the further written consent of the Responsible Authority, car spaces and access lanes must be maintained and kept available for these purposes at all time and car spaces must only be used in accordance with their designated purpose as shown on the endorsed plans.

12 All carparking and access works must be completed in accordance with plans and specifications prepared to the satisfaction of the Responsible Authority and submitted to and approved by the Responsible Authority prior to the commencement of the permitted use.

13 The loading and unloading of goods from vehicles must only be carried out on the land and all vehicle entry to and egress from the site shall be in a forward direction to the satisfaction of the Responsible Authority.

14 The operator of the premises must use their best endeavours to ensure that delivery and service vehicles only visit the site outside of the morning and afternoon peak times, to the satisfaction of the Responsible Authority.

15 No sound shall be emitted from any device or from any source or activity so as to become a nuisance to occupiers of adjoining properties or impair or impinge upon the amenity of occupiers of properties within the near vicinity to the satisfaction of the Responsible Authority.

16 The use may operate only between the hours of 6.30 am and 6.30 pm Monday to Friday without the further written consent of the Responsible Authority.

17 Children must only use the outdoor playground areas between the hours of 7.30 am and 6.30 pm to the satisfaction of the Responsible Authority.

18 No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building(s) without the written consent of the Responsible Authority.

19 Lighting shall be located and designed with suitable shields and baffles so that no direct light or glare is emitted outside the site, to the satisfaction of the Responsible Authority.

20 Not more than 65 children are to be present on the site at any one time.

21 The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:

(a)

Transport 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 products, grit or oil;

(d)

Presence of vermin or otherwise.

22 In the event of any nuisance being caused to the neighbourhood by activities related to the use and development the Responsible Authority may direct, in writing, such actions or works, as deemed appropriate, to eliminate or mitigate such nuisance be undertaken.

23 The location and details of signs including those of the supporting structure, as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority/

24 The signs hereby permitted must be located wholly within the boundaries of the land and must not be illuminated or contain any flashing or intermittent flashing light.

25 No other signs must be erected or displayed without the further permission of the Responsible Authority.

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

(a)

The development is not started within two years of the date of this permit.

(b)

The development is not completed or the use commenced within four years of 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.

Mr Nick Crawford, solicitor of Best Hooper. He called Ms Kate Partenio, traffic engineer of GTA consultants.

Mr L McGrath; Mr D Woolley; Ms J Kimberley; Ms A O'Neil and Mr J Bridson all appeared in person.

Mr D Woolley also appeared on behalf of Mr R C Lovett.

Ms J Kimberley also appeared on behalf of K & A Cuzens and R & T Carr

1 This is an Application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by Kathy Lloyd Pty Ltd against the refusal by Ballarat City Council ("the Council") to issue a planning permit in permit application no. PLP2004/457. Council advertised the application and received 23 objections. I note that Council's officers recommended the grant of a permit in a report on the permit application.

2 A Notice of Refusal was subsequently issued by the Council on the following grounds:

a. Close proximity to a major road carrying traffic including heavy trucks would create a potentially dangerous situation for the Centre.

b. Very high traffic congestion during drop-off and pick-up times would create a dangerous situation for both children and for motorists exiting the estate.

c. The proximity to high traffic density on Gillies Street would cause an undesirable noise level for this type of facility and an undesirable air quality for young children.

3 I inspected the site and surrounding area on Tuesday 15th March 2005 between 12 noon and 1pm.

4 At the commencement of the hearing, Ms Stupak advised that she would be relying on two additional grounds in support of Council's position, namely that:

•

The proposal fails to satisfy the relevant provisions of the State Planning Policy Framework (Clause 19.03), the purpose of the Residential 1 Zone at Clause 32.01 (sic.) and the relevant decision guidelines contained at 65 (sic.) of the Ballarat Planning Scheme.

•

The proposal fails to provide an adequate level of internal or external amenity for future operators and users of the proposed facility.

5 The parties did not object to the introduction of these additional grounds.

6 The review site is located on the north-west corner of Gillies Street and Stirling Drive, Lake Gardens, opposite the Botanical Gardens. The land is irregular in shape with an area of approximately 1760.6sq.m and with frontages to Gillies Street, Stirling Drive and St. Robbins Avenue.

7 The site is known as Lot 20 on Plan of Subdivision 425728C. A restrictive covenant is registered on the title created by instrument of transfer AC673127E on 16 February 2004. The covenant restricts the height, design and materials of fences.

8 The site is developed with a single storey building which dates from the 1960's and renovated in the 1990's. A gravel carpark occupies the western portion of the land and is accessed via a crossover in Stirling Drive. The premises was most recently used as a sales office associated with the surrounding Lake Gardens Estate.

9 The land is relatively flat and contains perimeter landscaping and some trees of note. This includes a birch tree and she-oak between the building and carpark and a row of birches along the Gillies Street frontage. The Gillies Street and Stirling Drive frontages are defined by a 1.8m high brick fence with steel infill pickets. There is no boundary fence along St. Robbins Avenue.

10 Two dwellings abut the site to the north. The dwelling fronting Gillies Street is a 2-storey building currently under construction. The second dwelling is also double storey and fronts St. Robbins Avenue.

11 The surrounding area is predominantly residential, comprising a mix of attractive single and double storey dwellings constructed in recent years. A small group of convenience shops and other commercial services are located in the west portion of the estate. Overall, the estate conveys a very pleasant and ordered feel, with very well maintained gardens and buildings.

12 Further from the review site is a caravan park, retirement village and Wendouree shopping precinct to the north and a leisure centre to the south.

13 Gillies Street is a primary arterial road with a 70km/hr speed limit. It contains a parking lane and two lanes in each direction separated by a centre median. A dedicated right hand turn lane is provided within the median at the Stirling Drive intersection. A small splitter island is also located in Stirling Drive at its junction with Gillies Street. No standing signs are posted on the south side of Stirling Drive opposite the review site. Stirling Drive operates as a local road with a carriageway width of approximately 10.8m.

14 This application is for the use and development of the land for a 65 place child care centre. The proposed number and age groups of children are as follows:

•

0 to 3 year olds - 25 children

•

3 to 5 year olds - 40 children.

15 The proposed operating hours are 6:30am to 6:30pm Monday to Friday and a maximum of 14 staff would be employed on the premises at any one time.

16 Retention and alterations to the existing building on the site is proposed, involving a 96.65sq.m addition on the building's northern side which is to accommodate up to 24 children. Three other rooms within the building will accommodate groups of up to 10, 15 and 16 children. Other facilities within the building include staff facilities, an office, laundry, kitchen, cot room, storage areas and toilets.

17 Two outdoor play spaces (on the east and west sides of the building) are proposed. The existing carpark area is to be reused for up to 19 car spaces, including a disabled bay, loading bay and three 15 minute car spaces. Minor modifications to the existing carpark are proposed including sealing of its surface and layout changes to allow for the western play area.

18 The front entry which faces Stirling Drive is to be accessed by pedestrians via the footpath along this frontage.

19 Two business identification signs are also proposed as part of this application. The signs, which are to be attached to boundary fencing to the Stirling Drive and Gillies Street frontages, are to have dimensions of 1.2m x 0.7m and 1.5m x 0.7m respectively. Although details of the signs' content are not shown on the plans, a notation indicates the use of black lettering on a white background.

20 The review site and surrounding land is included in a Mixed Use Zone ("MUZ"). As well as implementing the State and Local Planning policy frameworks, the purpose of the MUZ is as follows:

To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.

To encourage residential development that respects the neighbourhood character.

21 A childcare centre is a Section 2 use in the MUZ. Pursuant to Clause 32.04-7 a permit is also required for buildings and works associated with a Section 2 use.

22 The proposed advertising signs fall within Category 3 of Clause 52.05 of the Scheme. Business signs are included in Section 2 in the table to Clause 52.05-9 and thus require a planning permit.

23 Clause 52.06 (Car Parking) sets out requirements for carparking associated with particular uses. A childcare centre is not a use identified in the table to Clause 52.06-5.

24 Clause 52.06-1 states that where a use is not specified in the table to Clause 52.06-5, an adequate number of car parking spaces must be provided to the satisfaction of the responsible authority (or the Tribunal on review).

25 State planning policies relevant to this application include Clauses 11.03-6 (Social Needs), 14.01 (Planning for Urban Settlement), 15.04 (Air quality), 15.05 (Noise Abatement), 18.02 (Car parking and public transport access to development) and 19.03 (Design and Built Form).

26 Relevant local planning policies include Clauses 21.5 (Vision), 21.10 (Services and Infrastructure) and 22.03 (Business).

27 These policies seek to achieve a balance between the maintenance and creation of attractive liveable environments, sustainable economic growth and in the case of Clause 21.5; "to ensure the City's physical, transport and social infrastructure and services are provided in a coordinated, accessible and cost effective manner to meet the needs of the city's existing and future community".

28 Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering any application for permit under the scheme. Of relevance to the issues in this case are the State and Local planning policy provisions referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area. Of relevance also, as provided for at Section 60 of the Act, is the Metropolitan Strategy, Melbourne 2030, it being a strategic plan adopted by the minister.

29 I was provided with a copy of Council's Child Care Centre Policy adopted by the Council on 8 July 1997. Whilst I have considered this policy, I have given it limited weight as it is not a policy included in the Ballarat Planning Scheme. Nor is it an incorporated document or a document referred to in the Scheme.

30 The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme.

31 The five key issues in this case can be summarised as follows:

i

Is the proposed use of the land for a child care centre appropriate in a strategic land-use context?

ii

Is the site suitable for a child care centre use having regard to the site's location adjacent to a primary arterial road (Gillies Street)?

iii

Are the proposed vehicle access arrangements to and from the site appropriate?

iv

Are the proposed number of car spaces and the carparking arrangements satisfactory?

v

Will the proposal result in any unreasonable amenity impacts upon the surrounding residential area?

32 Before turning to these issues it is necessary to make some comments about the question of whether there is a need for the facility. The Council's submission drew on the issues affecting child care centres in Ballarat in report to Council on 26 May 2004. The report's authors suggested there was a shortage of childcare places at the time of writing but that recent approvals of planning applications may lead to an oversupply. It was said that this in turn may undermine the viability of existing facilities, lower the quality of care and reduce confidence in the sector by families and future businesses. A number of objectors submitted that the need for this centre had not been properly established by the permit applicant and that this in turn, mitigates against the grant of a permit. Although Mr Crawford responded with brief oral submissions, advising that his client expected there to be customers needing to use such a facility, he did not rely on the 'need' argument in support of this proposal.

33 Notwithstanding the above, it is a well established planning principle that the lack of need for a proposal, will rarely, if ever be a ground for refusing the grant of a permit. (Shell Co. of Aust Ltd v City of Frankston (1983) 8 APA 126 at 135; Vernia Pty Ltd v City of South Melbourne (unreported; editorial comment (1987) 1AATR2). On the other hand, the need for a facility, particularly where there are significant community benefits to be gained, may weigh in favour of the grant of a permit and in some circumstances may outweigh amenity considerations (Church of England Trusts Corp for the Diocese of Melbourne v City of Brighton (1983) 1 PABR 332 at 336).

34 From the submissions made, I am unable to make any conclusive findings about the issue of need one way or the other. Thus, despite the principles set out in the above decisions, I have not based my findings on there being a need for the facility. In the absence of any demonstrated need I also find no reason to offer any concessions to the proposal in terms of any potential off-site amenity impacts that it may generate. I also adopt the authorities set out in the Shell and Vernia cases and cannot give any weight to arguments that suggest refusal of the application is warranted in the absence of a demonstrated need.

35 I now turn to the substantive issues for consideration.

Is the proposed use of the land for a child care centre appropriate in a strategic land-use context?

36 A number of submissions from residents nearby raised concerns about the appropriateness of the proposed use of the land for a child care centre. It was said that such a use represents a commercial intrusion into a residential area. On the other hand, Mr Crawford submitted that child care centres are commonly located in residential areas and that such locations are usually within the Residential 1 zone. He argued that the site's Mixed Use zoning in fact lends even greater support for the proposed use.

37 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)).

38 I also find that the proposed use will be entirely consistent with the purpose of the Mixed Use Zone which includes:

To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.

39 The use of a corner site together with the recycling of an existing building, used in the past for non-residential purposes, is sound in orderly planning terms. I also find that there is general planning policy support for a child care centre within the context of this use contributing to the community's social infrastructure (Clauses 11.03-6 and 21.5).

Is the site suitable for a child care centre use having regard to the site's location adjacent to a primary arterial road (Gillies Street)?

40 One of the key concerns raised by the Council and objectors is the potential for the site's main road location to adversely impact upon the health and well-being of children at the centre. Such impacts were said to include:

•

The potential for errant vehicles travelling at high speeds to crash through the front fence and into the eastern play area or the building itself.

•

Noise and air pollution from passing traffic.

41 In support of their road safety concerns, many references were made by the Council and objectors to an accident involving a car which crashed through the Roundhouse Childcare Centre in Fairlight, Sydney. The accident resulted in 7 children being injured, including 2 serious injuries.

42 Reference was also made to correspondence from the Department of Human Services (DHS) regarding traffic safety. Although not objecting to the proposal, the DHS in its e-mail correspondence of 15 October 2004 made a number of comments in relation to the layout of the premises and the design and provision of facilities. The following remarks were also made in relation to the site's Gillies Street location:

This facility is intended to be located on the corner of a busy 70km/hr dual carriageway. Its location poses a potential/foreseeable risk of injury or death to a child &/or carer at this facility should a car, truck or other vehicle crash into, or through the fence surrounding the property and, intrude into the play area. It is considered necessary, if a permit is granted for this facility, for a condition requiring the applicant to provide computations/evidence that the proposed boundary fence would at least prevent the intrusion of a vehicle travelling at the current posted speed limit of 70km/hr along Gillies Street. Given the nature of the intended location it would be considered appropriate based on current knowledge and evidence that measures to minimise injury or death in relation to such events(s) [sic.] should be considered and implemented by the applicant.

43 Further correspondence from DHS was subsequently received by Council and Mr Crawford on 9 February 2005 qualifying the above remarks:

... The comments that I have made are in my capacity as a qualified environmental health officer with the Department of Human Services. I have no qualifications or professional experience in traffic engineering.

In so far as my comments relate to the location of the proposed child care centre I confirm that I made these comments without reference of this matter to a traffic engineer.

In my comments I referred to "current knowledge and evidence". This knowledge and evidence extends to my observed experience in relation to traffic volumes on Gillies Street and the posted speed limit. Also, I am aware of accidents where vehicles have crashed into buildings, including a child care centre in another area, causing serious injuries to occupants including children. I am aware of accident statistics related to 70km/hr traffic volumes in Ballarat. I am not aware of specific traffic volumes on Gillies Street or of accidents that have occurred along this roadway.

I confirm that the Department of Human Services does not object to the location of a child minding centre on the proposed site.

44 In response to these safety concerns, Mr Crawford relied on the evidence of Ms Partenio, a qualified traffic engineer.

45 Traffic volumes in Gillies Street were said in evidence by Ms Partenio, to be in the order of 20,000 vehicles per day (vpd) with 8.5% being heavy vehicles based on advice from Vic Roads. In relation to Stirling Drive, this road carries approximately 1500vpd.

46 Ms Partenio's evidence also included a review of accident statistics in Gillies Street sourced from VicRoads' accident database. In the last 5 years, these statistics reveal that 2 fatalities have occurred at two separate intersections in Gillies Street south of Stirling Drive. These accidents occurred at night time and one involved a stolen vehicle. Three other accidents involving 'serious injury' and four accidents involving 'other injury' have occurred in Gillies Road further north and south of Stirling Drive.

47 Importantly, Ms Partenio pointed out that none of the recorded accidents have occurred at the intersection of Gillies Road and Stirling Drive. Nonetheless, in light of these accident statistics, Ms Partenio raised the issue of the site's suitability for a child care centre with Vic Roads. She gave evidence that Vic Roads have not objected to the proposal in this location on traffic safety grounds. A letter from Vic Roads to the Council dated 17 August 2004 confirms their non-objection to the proposal.

48 Ms Partenio concluded that there would be a very low probability of an errant vehicle crashing onto the site. In support of this view, she referred to the straight alignment of this section of Gillies Street and the lack of any other adverse features at this intersection that might otherwise create hazardous traffic conditions. She also confirmed that the site is located outside the clear zone for roads with a 70km/hr speed limit. The clear zone, being the clearance between the title boundary and the edge of the through lane is 6.5m for this site, compared with the minimum clearance of 5.5m.

49 I accept Ms Partenio's evidence that there would be a very low probability of an accident at a location such as this. It would of course be impossible to conclude that there will never be an accident at the Stirling Drive/Gillies Street intersection. However, the probability of such an accident occurring, is in my view a relevant consideration in determining the degree of weight to be attached to this issue. In this case the probability is low. In addition to Ms Partenio's evidence, I make this finding having also considered the non-objection from both Vic Roads' and Council's own traffic engineers and the circumstances of this site and the prevailing road conditions.

50 This is not to say that the issue of child safety is not important. As I expressed with Member Cimino in Adamco Developments v Monash CC [2004] VCAT 2359 in relation to objectors' concerns about the potential for paedophiles to occupy a proposed apartment complex and prey upon children at an adjoining pre-school centre in Brandon Park:

[102] ...We have no doubt that the concerns expressed by Mr and Mrs Yanko [objectors] and those that they represent are sincerely held and we agree that the protection of children is a matter of paramount importance within our community. [Notation added]

51 Nor does it mean that past experiences should be ignored when making decisions about new proposals. Indeed there is no question that the accident at the Roundhouse child care centre was a terrible tragedy and it is understandable that the community will want to avoid the recurrence of such accidents in the future. The fears expressed about a similar accident occurring at the review site do however need to be tempered by a consideration of the particular facts and circumstances of each case. I agree with Mr Crawford's submission that the circumstances of the Sydney site are different from the case at hand. In the Sydney example, the topography of the surrounding road network is such that the site is located at the bottom of a hill at a T-intersection. The site is also located in close proximity to the carriageway and the width and configuration of the roads are considerably narrower than Gillies Street. Given these different conditions and the lack of any evidence to the contrary, I am not persuaded that the review site represents an unacceptably high risk to the well being of children based on the Sydney example.

52 As Mr Crawford correctly pointed out, there are many sites located adjacent to main roads which allow children to play in proximity to the road alignment. These uses include dwellings, schools, parkland and other childcare centres. Examples of childcare centres located on busy main roads near the review site include the Wendouree Children's Centre further north on Gillies Street on the corner of Hastings Street which I also inspected. In Melbourne, examples along major thoroughfares include child care centres along Bell Street Coburg and in Springvale Road Nunawading.

53 Acknowledging the potential risk of an accident, albeit with a low probability of occurring, the permit applicant has accepted the suggestion by DHS that a suitably designed fence be provided around the site to further minimise any risk of harm to children on the premises. I agree with this measure which I find is a responsible and acceptable approach to the management of such a risk. This requirement can be included as a permit condition.

54 It may be that the existing fence is already of a sufficient standard to satisfy the Council and DHS of its suitability. I am not persuaded however that the need for modifications to the existing fence or a new fence would necessarily result in the breach of the restrictive covenant affecting the land. There will be many possible design options available that will not breach the covenant. Ultimately, the Council will need to approve the fence design and in doing so, must comply with the provisions of Section 62(3)(b) of the Planning and Environment Act 1987 which states the following:

(3) The responsible authority may approve an amendment to any plans, drawings or other documents approved under a permit if -

(b) the amendment will not authorise anything which would result in a breach of a registered restrictive covenant.

55 Concerns were raised that the proposed site is inappropriately located for a childcare centre due to the impact that noise and air pollution would have upon the health and well being of children at the centre. Such pollution was said to arise from traffic given the site's abuttal to a main road.

56 Countering submissions in relation to air pollution, Mr Crawford tabled a recent study by the EPA titled "Air Monitoring at Nunawading - October 2003 to February 2004" (Publication 948 May 2004).

57 This study was conducted during the period September 2003 to February 2004 at the busy intersection of Springvale and Whitehorse Roads Nunawading. The study states that the site was chosen "because it is considered to be typical of a worst-case congested intersection with residential properties in close proximity to the road". Based on Vic Roads data, an average of 250,000 vehicles per day pass through the intersection with approximately 5% (or 12,500) of these vehicles being trucks.

58 The objectives of the study were to:

•

Assess the level of motor vehicle derived air pollutants at a heavily trafficked intersection that might represent the worst-case exposure for people living or working in a similar location.

•

Determine if the concentration of pollutants at a heavily trafficked intersection site are significantly different from levels in typical residential areas of Melbourne measured at EPA air monitoring stations.

59 The study concluded that ambient air quality objectives are generally met within a very short distance from heavily trafficked roads.

60 In forming a view about this issue, I accept the findings of the EPA study which represents a 'worse case scenario'. That study was based on road conditions with average daily traffic volumes 12.5 times heavier than volumes in Gillies Street. Heavy vehicle volumes in the EPA study are more than 7 times greater than the estimated 8.5% (or 1700) truck movements in Gillies Street.

61 In relation to noise impacts from passing traffic, I find no basis to reject the application on this ground. The DHS have not raised any concerns in relation to this issue. As previously mentioned, many uses attracting groups of children for prolonged periods are found along main roads.

62 Although I accept the desirability of locating child care centres away from main roads, this site, like many, involves balancing often conflicting locational benefits and disbenefits. For example, if the proposed centre was to be located in a mid-block location within the estate away from main roads, such a site may share a greater number of common boundaries with residential properties. Consequently, concerns may well be raised about amenity impacts upon surrounding properties generated by activity from the centre such as traffic, noise, visual impacts and the like.

63 For these reasons I am not persuaded that the site's location is unacceptable.

Are the proposed vehicle access arrangements to and from the site appropriate?

64 The proposal involves the re-use of an existing double cross-over in Stirling Drive at the site's western end.

65 Residents nearby raised concerns about the ability of the intersection to safely accommodate the additional traffic generated by the proposal. The safety of Gillies Street was questioned by a number of residents including Mr McGrath who submitted that the cross-over is not readily visible. Mrs O'Neil spoke of the difficulties in safely accessing her driveway on the opposite side of Stirling Drive on approach from Gillies Street due to fast moving traffic from behind. Mrs O'Neil also referred to a recent accident involving her family's vehicle which was hit from behind while legally parked outside the Stirling Drive frontage of the proposed child care centre.

66 A traffic impact assessment was undertaken by Ms Partenio which included an analysis of the intersection performance (existing and proposed) at Stirling Drive/Gillies Street using the aaSIDRA2.0 modelling technique. The analysis indicates that the intersection operates with minimal queuing and delays on all approaches. If approved, the proposal would generate up to 56 additional vehicle movements in any peak hour. When combined with existing volumes, Ms Partenio's evidence was that the intersection would continue to operate satisfactorily without compromising the safety or function of the surrounding road network.

67 I am satisfied that the surrounding road network will be capable of accommodating the additional traffic generated by the proposal without any unreasonable impacts. On my inspection of the site and surrounds, I approached the site from the north and south along Gillies Street. I did not experience any difficulty undertaking the necessary manoeuvres and when turning right into Stirling Drive, took advantage of gaps in on-coming traffic due to the operation of the traffic signals at the intersection of Lake Gardens Avenue. I was also able to perform other movements from the various approaches to the site without any difficulty.

68 This, of course is not to say that traffic conditions will always be the same as those which I experienced in the middle of the day during my inspection. However, the design of the intersection including the ability to undertake controlled right and turns into and out of Stirling Drive, good sight distances on approaching and leaving the site, the location of the splitter island in Stirling Street and the distance of the cross-over from Gillies Street offer favourable conditions which I observe as supporting Ms Partenio's evidence. The 10.8m wide carriageway width of Stirling Drive together with 'No standing' restrictions opposite the site and along the review site frontage near the Gillies Street intersection also lead me to conclude that even with kerbside parking vehicles can comfortably pass during peak times without unduly impacting upon the function or safety of Stirling Drive.

69 I also find that it is unlikely that visitors to the centre travelling north along Gillies Road will approach the site from Lake Gardens Avenue and St Robbins Avenue and Garden Court because these routes are based on left turn movements. It was said by some objectors that this would occur to avoid the need for west-bound motorists to execute right turn movements into the carpark or u-turns for kerbside parkers in front of the site. Having accessed the site from these alternative routes, I am of the opinion that their circuitous nature is likely to act as a disincentive for most motorists. I acknowledge that some use of these routes may possibly occur but I do not consider that their likely limited use will cause any unreasonable increase in traffic given the more direct option available via the Stirling Drive/Gillies Street intersection.

70 There was some discussion at the hearing about the use of a second cross-over in St. Robbins Avenue. I find that the re-use of the existing double cross-over (and associated carpark) is in this case an appropriate design response. The provision of a second access onto St. Robbins Avenue whilst facilitating through movements on the site, will tend to concentrate traffic flows in St. Robbins Avenue. I find that this concentration of traffic activity would be an undesirable outcome given the narrower carriageway width and more localised function of St. Robbins Avenue compared with Stirling Drive.

Are the proposed number of car spaces and the carparking arrangements satisfactory?

71 Council and objectors raised various concerns related to carparking issues which can be summarised as follows:

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the adequacy of car parking spaces on the site to cater for the centre's demand, particularly during drop-off and pick-up times in the morning and afternoon peaks;

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the effects of overspill parking in Stirling Drive causing congestion, queuing and delays at the Gillies Street intersection;

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the lack of a direct pedestrian link from the carpark to the centre, necessitating the use of the footpath along Stirling Drive to access the centre's main entry; and

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the ability for delivery vehicles to park on the site.

72 In relation to the adequacy of car parking, there are no prescribed rates for a child care centre under Clause 52.06 of the Planning Scheme. An adequate number of spaces must however be provided to the satisfaction of the responsible authority (or Tribunal on review). The proposal involves the provision of 19 on-site car spaces, using the existing carpark at the site's western end. For 65 children, this equates to 0.29 car spaces per children. The officer's report on this application concludes that the proposed number of car spaces would be to the satisfaction of the responsible authority, having considered the views of Council's traffic engineer, Vic Roads and the traffic and parking report accompanying the application.

73 Ms Partenio's evidence made reference to parking surveys of other child care centres which found an average peak parking demand of 0.2 spaces per child with an 85th percentile peak of 0.27 spaces per child. These rates were said to be conservative as the survey data includes a kindergarten which typically generates higher peak parking demands. Ms Partenio concluded that the number of on-site spaces would be adequate to cater for peak demands. I also agree that the number of on-site car spaces will be sufficient. I note that while a maximum of 14 staff are to be employed on the site, the operational characteristics of child care centres are such that all 14 staff will not all be present on the site from opening to closing times. The staggering of parents' arrivals and departures is also expected to occur, recognising that there will be times of greatest demand during the morning and afternoon peaks.

74 Although I am of the view that a sufficient number of car spaces are provided on the site, it is possible that some cars will park on the street should the need arise. As I have previously stated, I am satisfied that parking in Stirling Drive is unlikely to adversely impact upon the safe and functional operation of the surrounding street network. However, I agree with Council's submission that the pedestrian access arrangements to the front entry from the car park is poor, necessitating the use of the public footpath. I find that this arrangement is likely to un-necessarily encourage on-street parking in Stirling Drive rather than on the site. From an orderly planning perspective, I find that on-site parking should be made as convenient as possible to minimise the use of kerbside parking. This may involve some consequential modifications to the carpark layout however I anticipate that such changes will be minor and can be achieved without any loss of carparking spaces.

75 Accordingly, I will require the provision of a pedestrian path within the site itself from the carpark to the building.

76 To promote their use during peak times, I will also require 4 car spaces (i.e. spaces 1, 2, 4, and 6) to be set aside for 10 minute parking including the use of car space No. 1 for delivery vehicles. Appropriate conditions can also be included to manage deliveries so as to avoid morning and afternoon peak times.

77 I note that the carpark is to be sealed and car spaces linemarked. I will require conditions that the dimensions of car spaces and the width of access aisles be provided to the Council's satsifaction.

78 With these suggested modifications, I am satisfied that the parking arrangements will operate satisfactorily without any unreasonable impacts upon surrounding streets.

Will the proposal result in any unreasonable amenity impacts upon the surrounding residential area?

79 I am of the opinion that the proposed design of the building and layout of the site will not result in any unreasonable impacts upon the visual amenity of the surrounding area. The form of the building is residential in character and will not be at odds with the character and scale of existing development nearby.

80 Some landscaping is already evident around the site and this can be consolidated and enhanced with additional landscaping as part of a landscape plan. The provision of shrub planting adjacent to the St. Robbins Avenue frontage is recommended (such as "Orange Jessamine") instead of the proposed lower lying daisies to soften the appearance of the carpark from this street.

81 While there will be some activity associated with arrivals and departures from the centre and noise from children's play, I am not persuaded that these activities would cause unacceptable impacts upon residential properties nearby. These operational impacts will be largely limited to the centre's opening hours on weekdays between 6:30am and 6:30pm with proposed permit conditions only allowing the use of outdoor play areas between the hours of 7:30 am and 6:30pm. I find that such activity will not be unreasonable in the context of the site's abuttal to Gillies Street (which of itself generates some background traffic noise).

82 Ms Stupak submitted that the proposal does not provide an adequate level of internal amenity for future occupants of the centre. Reference was made to the comments by DHS which highlighted the need for some internal facilities such as storage space and other various detailed design matters.

83 To receive the necessary approvals from relevant state agencies, modifications to the plans will be required addressing these detailed design features. Ms Stupak rightly conceded that these matters can be dealt with by permit conditions.

84 For the reasons I have set out, the decision of the Responsible Authority is set aside. I will direct the grant of a permit with the various modifications and conditions which I have described in my reasons.