With respect to permit application P160/06, the decision of the Responsible Authority to grant a permit is varied.

A permit is granted for the development and use of a child care centre and advertising signage at 2 Foxborough Glade, Narre Warren North in accordance with the endorsed plans and subject to the following conditions:

1 Before the use and 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 submitted with the application but modified to show:

(a)

Provision of wheel stops on car parking spaces abutting the proposed building.

(b)

The disabled parking bay (car space 8) relocated to car space 7 so it is as close to the entrance as possible and positioned so that reversing manoeuvrability is not compromised by landscaping.

(c)

Existing and proposed levels, vehicular crossovers, drainage, existing services, driveway and/or car park construction etc.

(d)

Details of any feature fencing along the Foxborough Glade frontage.

(e)

The northern screening of the first floor outdoor play area to be acoustically designed.

(f)

The northern boundary fence to be acoustically designed.

(g)

A screen to a height of 1.7 metres along the northern side of the first floor front balcony from the staff room to limit overlooking into the neighbouring northern property.

(h)

Elevations of the proposed advertising signs providing details of content, colours and materials.

2 Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must be generally in accordance with the landscape concept plan dated March 2006 prepared by ERM.

3 Prior to the commencement of the use, a parking management plan must be submitted to and approved by the Responsible Authority. The parking management plan must include:

(a)

How the allocation of car spaces will be managed, including the provision of staff parking during the operating hours;

(b)

Which parking bays will be occupied by staff first;

(c)

Availability of parent parking during the middle of the day;

(d)

Arrangements for delivery vehicles;

(e)

Encouraging use of bicycles and shared transport arrangements;

(f)

Intended education of parents and staff about the parking management plan such as through an orientation session or the like.

4 The use must not be commence until the following works have been completed to the satisfaction of the Responsible Authority:

(a)

The premises are connected to reticulated water supply, sewerage, drainage and underground electricity to the requirements of the relevant servicing authority.

(b)

The areas set aside for car parking and access lanes as shown on the endorsed plan have been:

(i)

Constructed with an all weather seal coat, such as coloured concrete or asphalt.

(ii)

Properly formed to such levels that they can be used in accordance with the plans.

(iii)

Drained and maintained.

(iv)

Linemarked to indicate each car space and all access lanes.

(c)

The development and all landscaping works have been completed and subsequently maintained generally in accordance with the endorsed plan.

5 The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan must not be altered or modified without the written consent of the Responsible Authority.

6 Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

7 The use may operate only between the hours of 7.00am to 7.00pm, Monday to Friday.

8 Not more than 90 children may be cared for on the premises at any time.

9 Water must not be discharged from the site other than by means of an underground pipe drain to an approved discharge point to the satisfaction of the Responsible Authority.

10 Appropriate sediment control measures must be undertaken during construction to ensure that the development site is adequately managed in a way such that no mud, dirt, sand, soil, clay or stones are washed into or allowed to enter the stormwater drainage system.

11 Access to the site, including all vehicular crossovers, must be provided and constructed to the satisfaction of the Responsible Authority.

12 Where existing crossovers will not be used for this development, they are to be removed and the nature strips made good, to the satisfaction of the Responsible Authority.

13 The driveway serving the car park must be left open at all times during business hours, and must not be used for any purpose other than providing vehicular access between the street and the parking spaces and other site areas.

14 In areas set aside for car parking, measures must be taken to prevent damage to fences of adjoining properties and landscaped areas to the satisfaction of the Responsible Authority.

15 Vehicles under the care, management or control of the operator of the use, including staff vehicles must not be parked in any nearby road.

16 The area set aside for car parking, as shown on the endorsed plan, must be used for the parking of vehicles and for no other purpose.

17 The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.

18 All outdoor lights must be designed, baffled and located to the satisfaction of the Responsible Authority to ensure that no direct light is emitted outside the site to prevent any adverse effect on adjoining land.

19 Nuisance or annoyance must not be caused by the operation of the use to persons beyond the site.

20 The site must be so ordered and maintained as not to prejudicially affect the amenity of the locality by reason of appearance.

21 External sound amplification equipment or loud-speakers must not be used for the purpose of announcements, broadcasts, playing of music or similar purposes.

22 The signs must be constructed and maintained to the satisfaction of the Responsible Authority.

23 This permit will expire if:

(a)

the development is not commenced within two years of the date of this permit, or

(b)

the development is not completed within four years from the date of this permit.

The Responsible Authority may extend the periods referred to, if a request is made in writing before the permit expires or within three months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this determination pursuant to section 85(1)(b) of the Planning and Environment Act 1987.

He called the following expert witnesses to provide evidence in chief and be made available for cross-examination:

1 This matter concerns an application by some of the residents in a residential estate to review the decision by Casey City Council ('the Council') to grant a permit for a child care centre and associated signs on a corner allotment at the entrance to this residential estate.

2 The review site is situated on the northeast corner of Foxborough Glade and a tree reservation abutting Ernst Wanke Road. The site has a frontage to Foxborough Glade is 26.34 metres, a depth of 75.95 metres and a total area of 2,000 square metres. The site is vacant, relatively flat, has no vegetation and has a 5 metre wide drainage easement along the rear (east) boundary.

3 The residential estate is known as the Foxborough Estate and comprises a total of 24 allotments of about 2,000 square metres each situated along two dead end roads (Foxborough Glade and Holly Green Court).

4 It is proposed to construct a part two storey child care centre accommodating 90 children with access to 19 car spaces via Foxborough Glade. The car parking will be situated in front of the proposed building and adjacent to the tree reservation. Landscaping will be provided throughout the site.

5 The Council determined to approve the proposal subject to permit conditions, including a requirement for a vehicle exit access point to be provided through the tree reservation and onto Ernst Wanke Road.

6 At the commencement of the hearing, Mr Lunder sought leave for M Gasch & G Roach, owner of lot 20 in Holly Green Court, to be joined as a party in conjunction with Mr Lunder and others to this proceeding. There was no objection to this request, and I granted leave.

7 The expert evidence reports of the two witnesses was received by the Council and Mr Lunder on Friday 1 December 2006, 4 days prior to the hearing which is less than the required time for the serving of expert reports in the Tribunal's practice note requirements. However, the parties had no objection to the late exchange of the expert reports so I allowed the evidence to be presented during the hearing.

8 After the hearing, I inspected the review site, the balance of the residential estate and the surrounding area (including the locations of the three other proposed child care centre VCAT cases referred to during the hearing[1]).

9 The review site and surrounding land to the north, west (in this residential estate) and east (being Ernst Wanke Road itself) are zoned Low Density Residential under the Casey Planning Scheme ('the Planning Scheme').

10 A permit is required to develop and use land for the purpose of a child care centre.

11 No overlay controls affect the site.

12 The land to the east is zoned Public Park and Recreation and the adjacent section of Ernst Wanke Road is contained within a Road zone. The land on the south side of Ernst Wanke Road is zoned Residential 1.

13 Mr Ness highlighted the following demographics outlined in the municipal profile in the Municipal Strategic Statement:

•

Casey has a young population. There are relatively more adults aged 30-39, more infants aged 0-4 years and more children aged 5-14 years. Correspondingly, there are fewer old people aged over 60.

•

Casey is attractive to growing families. There are more two parent families with dependent children and comparatively fewer single person households.

14 Mr Ness also highlighted that the site falls within the designated "built up area", one of five regions that the municipality is divided into.

15 All the parties referred to the Non-Residential Uses in Residential Areas local planning policy at clause 22.08 of the Planning Scheme. The objectives of the policy are:

•

To allow complementary non-residential uses to be integrated into residential areas.

•

To ensure harmony between residential and non-residential uses.

•

To develop neighbourhood nodes that provide convenience and identity to local communities.

16 The content of this policy is discussed further in the reasons for my decision.

17 Mr Lunder and others do not consider the proposal is in accordance the local planning policies in the Planning Scheme. They also consider the proposal is a large centre; not on a main road; and not clustered around a current or planned neighbourhood node. As such the traffic, access, parking and design of the building will cause a loss of residential amenity and will not enhance the neighbourhood character within this residential estate.

18 A child care centre requires planning permission in residential zones, including the Low Density Residential zone. Whilst none of the parties suggested a permit could not be granted, Mr Ness referred me to a decision by Member Hewet of this Tribunal in the matter of Carrafa v Nillumbik SC [2004] VCAT 1904 and I adopt the following passages:

30 The proposed use is a use for which a permit may be granted in this zone and it seems to me that if the Council's and the objector's submissions are correct, there would be little point in including any section 2, permit required uses in the table to clause 32.03-1. The fact that the purpose of the Low Density Residential zone does not make any reference to non residential uses in the same way that the Residential 1 zone does, cannot be interpreted to mean that the planning scheme does not contemplate non residential uses from locating in this zone. The purpose of the zone is in fact quite clear, and that is it is intended to be applied in circumstances where reticulated sewerage is not available and larger than conventional lots are required to treat and retain wastewater on each lot. Beyond that, the zone provides for a wide range of uses other than residential, for which a permit can be granted and the zone purpose neither encourages nor discourages these uses in the zone.

31 There are many very good reasons which underpin the long established principle that child care centres 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 centre is located. That child care centres are the type of use which can also make a contribution to developing a community's sense of belonging has also been recognized by the Tribunal. In Zammit v Shire of Melton and Libella Dion Pty Ltd (1993/28050) the Tribunal found that;

.......It does not seem appropriate to expect that all of the community facilities which may be required by the population in this newly developing suburb will be provided only in the centres nominated in the structure plan, particularly given the distances between such centres. There would seem to be opportunities for limited local facilities to be established which would contribute to developing a sense of belonging to a local area because of their ready accessibility. A child minding centre would seem to be one such facility which could make that sort of contribution.

32 I can see no reason why the benefits to the community as a whole of locating child care centres in residential areas ought to be limited to residential areas zoned Residential 1 and excluded from residential areas zoned Low Density Residential.

33 I agree with the Council and the objectors to the extent that in the Low Density Residential zone, larger than conventional lot sizes will inevitably influence and define the character and amenity of a locality and the appropriateness of a child care centre use must be assessed in terms of its impact on that amenity and character. My view in this respect is consistent with another of the Tribunal's consistent and long held principles that the appropriateness of a site's location is paramount in determining whether or not a permit ought to be granted.

19 The inappropriateness of the proposal on this site (i.e. its location) was a key concern of Mr Lunder, particularly in light of the relevant local planning policies. He pointed out the site is not on a main road and is not clustered around a current or planned neighbourhood node. He made reference to previous decisions of this Tribunal for three child care centres in Narre Warren North that were all refused because of their locations and failure to comply with the Council's local planning policy for non-residential uses.

20 I have inspected the locations of each of the previous Tribunal decisions referred to and I have reviewed each of these decisions. In each case, I note the Tribunal found there were amenity impacts such as traffic and parking in Gori Court, traffic in Brundett Road and built form in Crawley Road. This is of particular relevance to the aspirations of the non-residential uses policy because I find the location statements contained in the policy are aimed at minimising the loss of "amenity, privacy and convenience to people living in nearby dwellings". As Senior Member Marsden stated in paragraph 19 of Toltrade Australia Pty Ltd v Casey CC [2006] VCAT 1189:

... It is quite apparent that this proposal does not meet the locational preferences expressed in Clause 22.08 of the Casey Planning Scheme. While that in itself is not fatal to the proposal, it is a weighty factor against it.

21 The basis of the policy states residential areas require complementary non-residential uses, including child care centres, for the convenience of local residents. So, the basis of the policy is not to prohibit or preclude child care centres from establishing in residential areas, but to ensure care is taken in selecting and siting non-residential uses so as to avoid loss of privacy, amenity and convenience to residents living nearby.

22 The location statements in the policy recommend clustering of non-residential around planned neighbourhood nodes in new residential areas, and locating near similar non-residential uses in established residential areas. The parties all took the view that the review site is in a new residential area, but I consider this is questionable in this case. The surrounding residential area is well established and this residential estate is also well under construction with a number of the lots containing dwellings already. However, regardless of this, I have considered the submissions about clustering non-residential uses around planned neighbourhood nodes.

23 Mr Ness pointed out the southwest corner of Ernst Wanke Road and Narre Warren North Road is a designated activity centre in the Maramba Development Plan (applying to this area) and is zoned for business purposes; the northwest corner of the same intersection contains a primary school; to the west of the school is the Jack Thomas Reserve; and to the west of the reserve is the review site. Mr Ness submitted the Council is of the view the review site therefore has reasonable proximity to other non-residential uses and community facilities and meets the policy statement of being clustered around a planned neighbourhood node.

24 I note the arrangement of these non-residential uses and community facilities accords with the policy statements in the Residential Development local planning policy at clause 22.05, which state:

•

New communities be provided with neighbourhood facilities including open space that are conveniently located and which can be reached by alternative transport modes, including walking.

•

Neighbourhood facilities be grouped together to provide a visible focal point which residents can readily identify with which are linked by open space and road networks.

25 In regard to the first dot point, Mr Lunder pointed out there are no footpaths on the north side of Ernst Wanke Road. I accept this is the case but do not consider that fatal to this proposal. Footpaths exist on the south side and there is no reason why the Council cannot include a footpath in the tree reservation and public open space running along much of the northern side of the road in the future.

26 Based on these policy statements in the Residential Development policy, I am satisfied neighbourhood facilities (and hence a planned neighbourhood node) may include businesses generally found in an activity centre, schools and open space. In light of this, I am also satisfied the location of the review site adjacent to open space, a school and a main road (Ernst Wanke Road) continues the grouping of neighbourhood facilities along Ernst Wanke Road, a visible and identifiable focal point with the surrounding residential area.

The Character and Amenity of the Foxborough Residential Estate

27 Mr Lunder expressed concern the traffic, access, parking and design of the proposed child care centre building will cause a loss of residential amenity and will not enhance the neighbourhood character of this residential estate.

28 When I inspected the residential estate I noted a variety of building styles are being utilised and many of the dwellings are quite expansive across their respective frontages. Mr Bisset submitted:

The proposed centre has been architecturally designed and will present as an attractive building of an appropriate scale which is well articulated and with the opportunity for landscaping both on the site and within the adjacent tree reserve. The appeal site is located within an area of emerging neighbourhood character where the land opposite fronts onto Holly Green Court and presents a side paling fence to the Foxborough Glade entrance. The surrounding lots are large, cleared and progressively being developed with substantial new dwellings.

29 Mr Ness pointed out the design is part one and part two storey; it incorporates a 2 metre setback from the northern boundary, which is the only residential abuttal; and it has a low site coverage of about 25%.

30 I agree with Mr Bisset that the design of the building is attractive and of an appropriate scale within this emerging neighbourhood character. The review site is located at the entrance to the residential estate and is situated opposite a side paling fence for an allotment fronting Holly Green Court. As such, it has no direct interface with any other residential allotment other than the one immediately to the north (the second residential property as you enter the estate). The development to date of the lots within the estate generally do not include any front fencing but there is feature fencing shown on the ground floor plan and landscape concept plan of the proposal. There are no details available as to what this feature fencing will look like. Given the lack of front fencing within the estate but acknowledging the side paling fence opposite the site, I find some feature fencing may be appropriate at the front of this site but further details will need to be provided to the Council as part of the permit conditions. Ultimately, it will be the Council's decision as to whether any feature fencing should be permitted in the frontage.

31 There is only one sensitive residential interface and that is to the north with the adjoining residential allotment that has not yet been developed. The 2 metre setback with new landscaping and the use of first floor highlight windows and screening along the northern edge of the rear first floor outdoor play area all assist to maintain a reasonable level of amenity to this adjoining allotment.

32 There is a balcony proposed at the front of the first floor, accessible from a staff room, and it contains no screening along its northern edge. Mr Ness stated any view from the balcony will be over the frontage of the adjoining allotment only but acknowledged the design could be modified to include a 1.7 metre high screen. Whilst Mr Bastone gave evidence screening is not necessary, I am of the view a 1.7 metre high screen along the northern edge will not impact upon the internal amenity of the child care centre and will provide certainty that the potential for overlooking to the adjoining allotment is limited (an outcome that is generally considered to be acceptable in the relevant objective of ResCode). Accordingly, I will require this as a permit condition.

33 The screening of the rear first floor outdoor play area is not nominated as being acoustically designed/treated. Mr Bastone gave evidence acoustic treatment is not necessary as the play area will only be used by 15 children in a supervised manner. The Council, however, requested this as a permit condition at the end of the hearing, as well as acoustic fencing along the northern boundary given there are two other outdoor play areas at ground level adjacent to this boundary, and I agree.

34 The provision of car parking for the proposed 90 place child care centre complies with the local planning policy requirement. There was some discussion at the end of the hearing about design changes to the car park layout sought by the Council and, where I consider it appropriate, I have modified these requirements.

35 Mr Lunder submitted the traffic generated by the proposal will cause access problems in Foxborough Glade. The first point I wish to make is this site is the first allotment as you enter the estate and there are no other driveways that will conflict with the access to the site (as it will have its own separate driveway and is not located opposite any existing driveways). There is sufficient car parking provided on the site, so I see no reason why the vehicles visiting the centre cannot safely utilise the proposed driveway and car parking on the site itself.

36 Mr Lunder pointed out Foxborough Glade has a width of 6.5 metres and submitted it will be difficult for cars to travel along the road if there are cars parked along its edge. As I have already stated, I see no reason why vehicles visiting the site cannot park on it. Also, Mr Walsh gave evidence the width of the road already restricts vehicles from parking directly opposite each other because it is just not wide enough to facilitate that level of parking plus traffic moving in between. So the fact of the matter is such a scenario is unlikely to occur because the road has not been designed to accommodate it.

37 Mr Lunder explained that, by far, the main concern of the residents is the traffic to be generated by the proposal and its impact on the estate. Mr Ness explained the Council had endeavoured to respond to this concern by requiring a new exit access point through the adjacent tree reservation onto Ernst Wanke Road. Mr Walsh gave evidence such a change was not necessary based on his analysis of the anticipated traffic volumes and the safety of access into and out of the site. Given the proposal is situated at the entrance to the estate and does not involve vehicles travelling further into the estate, I do not share the concern of the residents about traffic impacting upon their amenity. I accept Mr Walsh's evidence that Foxborough Glade is capable of accommodating the traffic generated by this proposal. As such, I do not agree that the Council's suggested solution of including a new exit to Ernst Wanke Road is necessary. Having said that, I also wish to highlight two other concerns I have about the appropriateness of the Council's suggested solution:

i

The proposed access point would cross the tree reservation which was required by the Council as part of the initial subdivision and clearly forms part of their desired outcome for the treatment of the frontage along Ernst Wanke Road; and

ii

The permit condition states its provision is "subject to compliance with the provisions under the Local Government Act", so in other words it is not guaranteed that the access point will be permitted as it is subject to approval/compliance under another Act. Such wording in a permit condition is unsatisfactory.

38 I find the proposal is in accordance with the local planning policies in the Planning Scheme. The location of the child care centre will not cause an unreasonable loss of amenity, private or convenience to the other residents in this residential estate. The design of the building will complement the emerging neighbourhood character and minimises any amenity impacts by way of overlooking and acoustic privacy. The design of the car park provides a satisfactory provision of car spaces that can be safely accessed via Foxborough Glade.

For the above reasons, the decision of the Responsible Authority to grant a permit is varied. It is ordered that a permit be issued subject to modified conditions.

[1] Toltrade Australia Pty Ltd v Casey CC [2006] VCAT 1189

Applegrove Pty Ltd v Casey CC [2006] VCAT 208

Love & Associates v Casey CC [2004] VCAT 2395