1. Although limited matters are in dispute between the parties, I need to consider the overall merits of the proposal. In that regard, the following aspects are all positive factors when assessing whether the proposal is an acceptable planning outcome:
   • The proposed use is entirely consistent with the purpose of the Neighbourhood Residential Zone (NRZ), which includes:

To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations.

• It is not essential to establish the precise 'need' for a child care centre of the scale proposed (118 children) or that the use will exclusively serve the local community. In any event, I agree with Ms Ring that a child care centre with 118 places is of a scale that can now be considered typical for new and emerging centres. Furthermore, the centre would be close to a relatively dense residential area which includes higher density residential development. The parents of most of the children are likely to either live or work in the area.
• The proposal is consistent with the local strategy to 'Encourage community facilities and services to co-locate and to locate within or adjacent to activity centres'.[2] The review site is at the eastern edge of the Church Street Major Activity Centre and around 30m from Richmond Primary School.
• Although most of the review site is in a NRZ, it is at the interface with a high order activity centre, with the land along Church Street (zoned Commercial 2) being rejuvenated.
• No substantial matters arise from the two applicable Design and Development Overlay schedules.
• The proposal involves the adaptive re-use of an existing commercial building and car parks, consistent with the policy at clause 22.01-3 of the scheme that 'Existing buildings constructed for non-residential purposes are the preferred location for non-residential uses'.
• The new buildings and works are consistent with the scale, bulk and character of the area which includes a mix of buildings and typologies. There is a high level of compliance with the Urban Design Guidelines for Victoria, which are invoked by clause 15.01-1S of the scheme.
• The review site is within the heritage place identified in the schedule to the Heritage Overlay as 'Barkly Gardens Precinct, Richmond'. However, the relevant heritage study gives the site a grading of

'Not-Contributory'.

• The provision of 25 on-site car spaces fully complies with the parking requirement for a Child care centre in clause 52.06-5 of the scheme. It accords with Mr Hunt's empirical analysis of parking demand. It is also consistent with the policy at clause 22.01-3 of the scheme that 'all required car parking should be on site'.
• Clause 52.3 of the scheme has no specified requirement for bicycle facilities. Nevertheless, the proposal includes six spaces (in three hoops) and one cargo bicycle space.
• Wastes could be collected away from the Brighton Street frontage.

1. Since the issue of the NOD, Amendment VC148 has been gazetted. However, Ms King advised that the substantial changes introduced by that amendment to the scheme have no bearing on the merits of the proposal.

Except with the prior written consent of the Responsible Authority, the use authorised by this permit may only operate between the hours of 6:30am and 7:00pm, Monday to Friday.

1. In preparing for the hearing, I noted that the report by the Council's planning officer assumed that some children and staff could arrive at the earliest time (6:30am). The amended acoustic report provided by the permit applicant assumed that there could be 'children drop offs or staff arrivals before 7am'.[3] The statements of evidence of Ms Ring and Mr Hunt did not discriminate between the arrival time of staff and children.
2. I sought clarification at the start of the hearing as to whether the 6:30am commencement time refers to both staff and children (accompanied by their parents/carers).
3. Mr Cicero advised that it is not proposed that any children enter the premises before 7:00am, but there would be staff 'setting up' from 6:30am. At the end of the day there would be a similar half hour difference, with all children likely to have left by 6:30pm but some staff potentially present until 7:00pm. The hearing proceeded on the basis of that understanding of the proposed hours of operation.

1. Clause 22.01 of the scheme has a policy with the title 'Discretionary Uses in the Residential 1 Zone'.[4] The policy provisions include 'Hours of operation shall be limited to 8am to 8pm except for convenience shop'.
2. Mr Manderson acknowledged that the policy relates to the exercise of discretion to allow non-residential activities, and discretion will have to weigh numerous factors. However, the following extracts from Mr Manderson's written submission summarise his position:

... the hours of operation are a fixed prescriptive: Clause 22.01 is unique in setting a prescriptive policy of operating hours of any

non-residential usage (excepting convenience shops) as 8:00am to 8:00pm. There are no "grey" areas.

In the absence of a compelling case that, on balance, longer hours would actually benefit the existing residential community, this policy should be adhered to.

I believe that policy under 22.01 entitles me to be able to sleep between 7:00am and 8:00am without noise and disturbance associated with commercial activity (which includes the noise of vehicles and pedestrians arriving at the active premises). I like to sleep between 7:00am and 8:00am and often have occasion to do so.

1. In elaborating on that position, Mr Manderson advised that he is particularly concerned about early morning noise arising from vehicles turning into the car park, doors opening and closing, children being escorted to the front door, and vehicles leaving the car park and accelerating away. Mr Manderson noted that the potential for noise disturbance is heightened because there are bedrooms at the front of his dwelling (and other nearby dwellings), approximately 2m from the footpath. Mr Manderson also suggested that there is every reason to believe that

kerb-side spaces on the west side of Brighton Street, between Albert and Kingston Streets, would be the preferred drop-off/pickup points for many users. He feared that the use of those spaces, being closer to the dwellings on the opposite side of the street than the proposed car park, would add to the disturbance. 2. Mr Manderson submitted that the current noise levels from vehicles and pedestrians, particularly before 7:30am, is not unreasonable, noting that the main noise associated with the primary school occurs after 8:30am. 3. Mr Manderson noted that the permit applicant has not provided any data on why there needs to be 118 child care places and why the proposed hours are required. On the matter of the need for an early opening time, Mr Manderson suggested that given the location (especially the proximity to the CBD) the time required from drop-off to when parents start work is likely to be less than in a more removed location. 4. Mr Manderson was concerned that the acoustic reporting has not referenced the external areas, including the car park. He highlighted that while the acoustic reports assume that the outdoor play area may cause disturbance before 8:30am, the reports overlook the noise associated with traffic and parking at that time. Mr Manderson submitted that there is no evidence of actual noise levels meeting expectations for residential amenity prior to 8:00am (the starting time in the policy). 5. The report by the Council's planning officer justified a departure from the hours of operation in clause 22.01 by reference to five existing child care centres that open at 6:30am (two of the centres), 7:00am (one centre) and 7:30am (two centres). In response, Mr Manderson highlighted that none of the five centres are in a NRZ and the two that commence at 6:30am are in either a Commercial 2 Zone or a Mixed Use Zone. Furthermore, Mr Manderson noted that of the 17 Richmond early learning/child care centres listed on the Council's website, only one is in a NRZ, and it is a kindergarten that operates from 8:30am.

1. I agree with Mr Manderson that there is a consistent theme in the scheme regarding the protection of residential amenity from non-residential uses. For instance, a key decision guideline for non-residential use and development in the NRZ is 'Whether the use or development is compatible with residential use'. The objective of the clause 22.01 policy is 'To ensure that residential amenity is not adversely affected by non-residential uses'. In addition to the policy regarding hours of operation, it is policy that 'Noise emissions should be compatible with a residential environment'.
2. The Interface Uses Policy at clause 22.05 of the scheme also applies, as the review size is mostly in a residential zone within 30m of land zoned business or industry or used for such purpose.[5] The objectives of the policy include 'To ensure that residential uses located within or near commercial centres or near industrial uses enjoy a reasonable level of amenity'. The policy basis refers to the balancing of interests, stating:

In order to maintain the viability of industrial and business areas there is a need to ensure that new residents do not have unrealistic expectations of the level of amenity that can be achieved. New dwellings must be constructed to protect residents as much as reasonably possible from the inherent conflicts. There is also a need to ensure that commercial and industrial activities are well managed having regard to their proximity to residential uses.

1. Although education/community uses are not specifically referred to in the policy basis, it is entirely reasonable to expect that they are also designed and managed so as to minimise amenity impacts, including those arising from noise, overlooking, light spill, etc. Those expectations are enhanced when the use is itself in a NRZ.
2. The detailed policy at clause 22.05-4.2 does not refer to hours of operation but does call for 'a high level of acoustic protection to adjoining residential properties' by the adoption of specific measures, none of which relate to traffic or car parking.
3. The clause 22.10 policy is more relevant. The proposed starting time (of 6:30am for staff and 7:00am for children) is clearly at odds with the policy, which calls for a starting time of 8:00am. On the other hand, the proposed closing time of 7:00pm is one hour before the provision in the policy. However, contrary to the position put by Mr Manderson, the hours of operation in the policy are not 'a fixed prescriptive'. The role of policy is to guide the exercise of discretion in a particular case. It cannot be determinative of an outcome. Its application will vary depending on the circumstances. Furthermore, there is often a need to balance competing policies in assessing whether a proposal results in a net community benefit.
4. In considering whether the proposed commencement time is acceptable, one of the factors I have had regard to is the specific location. I agree with Ms Ring that this is 'not a pristine neighbourhood'. There is a mix of uses and proximity to a major activity centre. A before-school program at the primary school commences at 7:15am. The existing amenity is not that of a hinterland residential area. Furthermore, as put by Ms Ring, the 'downside' of traffic, noise and other amenity impacts must be viewed with the 'upside' of close proximity to a wide range of facilities and services in this inner urban location.
5. There would be no activity on the review site at weekends and after 7:00pm on weekdays. In that respect, it is a relatively benign non-residential use. Furthermore, it is important to appreciate that child care centres are unlike schools and kindergartens in that they do not have strict hours. Arrivals and departures are staggered. That feature was identified by the Tribunal in Minnows Childcare Pty Ltd v Bayside CC.[6]
6. Regarding the five child care centres referred to in the planning officer's report, Ms King noted that the three that are located on main roads have starting times of 6:30am, 6:30am and 7:30am and the two that are in 'residential areas' (more specifically, a General Residential Zone) have starting times of 7:00am and 7:30am. However, she suggested that in each case the permitted hours were those applied for, rather than a restriction imposed by the Council. While I acknowledge that none of the five centres are in a NRZ zone, the review site has the distinguishing feature of being at an interface with a major activity centre.
7. Mr Cicero provided a mapping analysis of 11 Richmond child care centres. They have varied commencement times - three start at 6:30am; one at 6:45am; two at 7:00am; one at 7:15am; and four at 7:30am. Interestingly, none have the 8:00am start time of the clause 22.01 policy.
8. Ms Ring and Mr Cicero both advised that many people in their respective offices are at work by 7:00am. Ms King suggested that the proposed commencement time is 'typical' of a child care centre, allowing parents to drop children off outside standard business hours and then continue their journey to work. On the other hand, Mr Manderson suggested that given the proximity to places of employment, including the CBD, parents would not need to drop their children off early.
9. I am not persuaded by Mr Manderson's argument. It cannot be known where parents will be coming and going from, their hours of work and other factors. In any event, there is no requirement to have survey information about the 'need' for specific hours. I accept that 'standard business hours' is a shifting concept. The nature of the workplace is changing and child care centres need to be responsive. However, while flexibility for parents would be enhanced by the offer of an early start time, it should not result in unreasonable amenity impacts.
10. As highlighted in the revised Acoustic Report provided by the permit applicant, there is no statutory regulation controlling on-site vehicle noise. The report assumed some limited drop off of children between 6:30am and 7:00am, but it has been clarified that that is not what is proposed. In any event, the report predicted that car movement noise would be within acceptable limits so as not to cause sleep disturbance. Consultants engaged by the Council to review the report raised no issues with that finding.
11. I was not provided with information about the arrival of staff between 6:30am and 7:00am. I assume the number would be small and arrivals might be staggered over that period. A 'Proposed Staff Roster' in Mr Hunt's witness statement indicates that five staff would be present from 7:00am to 8:00am. It cannot yet be known how many of the staff will arrive by car. In relation to children arriving, Ms Ring and Mr Hunt made different assumptions about the morning peak. Mr Hunt thought the peak would be generally between 8:30am and 9:15am, based on surveys across Melbourne. Ms Ring thought the peak would typically be between 7:00am and 8:00am, from her experience. As highlighted by Mr Manderson, they are very different scenarios. However, whatever the actual peak, no children would be arriving during the 'Night period', as defined in State Environment Protection Policy (Control of Noise from Industry, Commerce and Trade) No. N-1 (SEPP N-1).[7]
12. Ultimately, I accept that SEPP N-1 reflects community expectations about what constitutes 'day' and 'night' times and associated expectations about sleep disturbance. Those expectations are also reflected in environment protection regulations regarding residential noise, which prohibit various prescribed items before 7:00am on weekdays.[8] It is not reasonable for Mr Manderson to expect the child care centre to start at 8:00am so that he can enjoy undisturbed sleep after 7:00am.
13. I think it is reasonable for a limited number of staff to arrive from 6:30am onwards. However, children and their carers should not be permitted to enter the premises until 7:00am, consistent with the EPA's classification of the 'Day period'. I acknowledge that those start times have the potential to impact on existing residential amenity. However, I agree with Ms Ring that any such impact needs to be balanced against many other positive aspects of the proposal. The proposed start times could be more problematic in some other situations, such as a very quiet hinterland residential area. However, given the existing conditions and the strategic context, I am satisfied that any amenity impacts are unlikely to be unreasonable.

1. Condition 5 limits the use of the outdoor play space to between 8:30am and 5:30pm, Monday to Friday. While the permit applicant agrees to the commencement time, Ms Ring was of the view it is not necessary to require the use to end at 5:30pm. On that matter, she noted that the revised acoustic report recommended that outdoor play be permitted between 7:00am and 6:30pm. Mr Cicero submitted that use of the outdoor space later in the day would be valued, especially in the warmer months.
2. It is unclear why the hours in Condition 5 were included. The peer review of the original acoustic report recommended the use of the play area be restricted to 8:30am to 6:00pm, but no reason was given for that recommendation.
3. Ms King resisted Ms Ring's suggestion that Condition 5 be amended to allow an end time of 6:30pm. She noted that the permit applicant has not contested the condition, the revised end time has not been considered by the Council and the inclusion of Condition 5 could have been why some objectors did not get involved in the application for review.
4. The scenario posed by Ms King regarding other objectors is highly unlikely. Mr Manderson advised that he had no objection to a 6:30pm end time, provided the commencement time of 8:30am remains. I think it is reasonable to allow the outdoor play space to be used until 6:30pm, when the last of the children will be leaving the centre.

1. Mr Manderson considers that a permit should not be issued until measures are put in place to ensure vehicle and pedestrian traffic safety and efficiency. His submissions in support of that position included:
   • The proposed child care centre is likely to have different usage patterns, in terms of hours and mode of access, compared to child care centres in less central suburbs.
   • This area has a high level of 'walkability'. Most of the primary school students arrive and leave on foot. Many people cross Brighton Street to get to and from the Barkly Gardens to the east.
   • Data was collected by the Council in late 2018 regarding pedestrian and vehicle movements along Brighton Street. It showed that vehicle movements per day were in the order of 2,000 (rather than the earlier estimate of 3,000). It revealed a high level of pedestrian movements (with three peak periods per day when pedestrian movements exceeded vehicle movements). It also showed that 2/3 of pedestrian crossings are not made at the school crossing.
   • Brighton Street is heavily utilised by motorists, less than other streets in association with the primary school but by drivers who want to avoid the intersection of Church and Swan Streets. Peak hour turning restrictions are not enforced. The proposal will approximately double the level of vehicle movements in Brighton Street between 7:00am and 8:00am every weekday.
   • The scheme's emphasis on safety and pedestrian priority in residential areas should be an even higher priority when a large proportion of the pedestrians are young.
   • The traffic reports have overlooked the prospect of vehicles approaching the child care centre from feeder streets to the east such as Goodwin Street, a one-way street that abuts his property to the north. That is also an obvious route for pedestrians approaching the proposed centre. The street and footpath are close to the habitable room windows of numerous dwellings.
   • It cannot be assumed that the proposed car park will be the only

drop-off area. On-street parking will be convenient and there are safety issues that arise from any such parking. * The traffic movements generated by the proposal, superimposed over the existing traffic, materially increase the safety risks. Those risks should have been properly assessed. * If Brighton Street is to have a child care centre, as well as the primary school, it should be recognised as an Access Street - Level 1,[9] with appropriate infrastructure changes. They could include a reduction in the speed limit to 30kph; a pedestrian crossing outside the centre; and permit parking (resident only) outside the centre. 2. Mr Manderson was also critical of the design of the proposed car park. For instance, he highlighted that part of Selby ROW is to be relied on as a pedestrian path and that turning into some spaces will require multiple manoeuvres and crossing the pedestrian path. He submitted that Selby ROW will only be capable of handling one vehicle movement at a time, resulting in queueing in the street. That will encourage use of on-street parking, which is unsafe.

1. Various provisions of the scheme call for an assessment of safety issues associated with car parking and traffic. For instance, a key decision guideline in Schedule 1 to the NRZ is:

The layout and appearance of areas set aside for car parking, access and egress, loading and unloading and the location of any proposed off street car parking.

1. I agree with Mr Manderson that in assessing the proposed child care centre there should be an enhanced focus on safety, given the existing primary school. That focus is reflected in the scheme, with strategies at clause 19.02-2S including:

Locate childcare, kindergarten and primary school facilities to maximise access by public transport and safe walking and cycling routes.

Ensure childcare, kindergarten and primary school facilities provide safe vehicular drop-off zones.

Ensure streets and accessways adjoining education and early childhood facilities are designed to encourage safe bicycle and pedestrian access.

1. Mr Hunt agreed with Mr Manderson that Brighton Street effectively functions as an Access Street, but saw it as a Level 2 street, rather than a Level 1 street. Both of those types of streets are identified in clause 56.06-8 of the scheme as 'providing local residential access where traffic is subservient, speed and volume are low and pedestrian and bicycle movements are facilitated'. They are differentiated by their indicative maximum traffic volume per 24-hour period (1,000vpd to 2,000vpd for Level 1 and 2,000vpd to 3,000vpd for Level 2) and their target speed (30kph for Level 1 and 40kph for Level 2).
2. Relying on the Council's survey last November,[10] Mr Hunt's evidence was that in the vicinity of the review site Brighton Street is currently carrying in the order of 2,000vpd. That traffic volume equates to the upper end of Level 1 and the lower end of Level 2. Mr Hunt estimated that the proposed use would generate an additional 96 vehicle movements in the peak hour, with a 50:50 north-south directional split. Given the review site's location in an area with intense population density and good public transport, Mr Hunt suggested that there is less likely to be car-based trips to this centre than for a centre in a location without those features. He considered that the additional traffic can easily be accommodated, noting that this is an 'unusually wide local street'. Mr Hunt's evidence was that the 40kph speed limit and three existing speed humps within 50m of the review site reasonably control the behaviour of drivers, and will continue to do so. Pedestrians will utilise the existing footpaths. Mr Hunt highlighted that there are designated lanes for cyclists on both sides of the road. He saw no need for a pedestrian crossing for the proposed use, noting that a school with a dedicated pedestrian crossing is different to a child care centre with its own car park. He thought that only people from the local area, walking to the centre, will cross Brighton Street. Mr Hunt concluded that the proposed child care centre will not result in any discernible difference to the existing function, safety and amenity of Brighton Street.
3. I accept Mr Hunt's evidence, which was the only expert traffic evidence before me. My observation confirmed his description of this section of Brighton Street as a low speed environment. As I have already noted, the Tribunal in Minnows observed that traffic generated by a child care centre is generally spread over a longer period than the traffic associated with a primary school or kindergarten.
4. Although all car parking demand could be accommodated on the review site, I agree with Mr Manderson that some parents/carers may choose to use the two-hour spaces on the western side of Brighton Street. Mr Hunt acknowledged that prospect, although he highlighted that spaces are heavily utilised. I observed that there were spaces available outside the review site on Saturday afternoon but all of the spaces were occupied in the middle of a weekday. The on-street spaces would not be suitable for use by staff.
5. Reliance on on-street car parking for child care centres is not uncommon. Furthermore, the use of car parking spaces on a public street, after 7:00am, must be seen as acceptable. However, it is also reasonable to expect that parents/carers will choose the safest and most convenient car parking option. In this instance there would be the convenience of parking on-site, with dedicated spaces for visitors.
6. Despite Mr Manderson's critique, I think the car park would operate in a reasonably safe and efficient manner. On the matter, Mr Hunt's evidence was that the proposal meets the design standards for car parking in clause 52.06-9 of the scheme. In particular, he referred to the two-way traffic; the splay at the exit allowing appropriate sightlines; a single manoeuvre into most spaces; all vehicles exiting Selby ROW in a forwards direction; compliance with the minimum dimensions for 90° car parking spaces; and a 900mm-wide pedestrian path, identified by paving, 'guiding pedestrians in a safe manner'. Mr Hunt highlighted that as the path is on the north side of Selby ROW, where there are only five car spaces, the need for vehicles to cross the path will be minimised. Mr Hunt described the proposed car park as an 'unusually safe' environment.
7. I agree with Mr Hunt that the design of the car park is 'completely satisfactory'. I see the car parking arrangement as not dissimilar to many other places where parents/carers park and take children from cars, such as swimming pools, playgrounds and other recreational facilities, shopping complexes and the like.
8. The proposal involves the reinstatement of a crossing along the northern section of the frontage. That is consistent with clause 21.06-1 of the scheme, which calls for the minimisation of vehicle crossovers on street frontages. It also enhances available public parking.
9. While I am satisfied that the proposal will not have any adverse impacts in terms of vehicle or pedestrian safety, I trust that the Council will investigate and, if necessary, respond to any safety issues that arise as a result of the commencement of the use. If necessary, there are various tools available, including a lower speed limit, parking restrictions and road infrastructure changes, as suggested by Mr Manderson.

1. The conditions of the permit should be based on the revised conditions suggested by the Council in response to the amended plans. Those conditions should be altered to reflect my findings on when children should be allowed to enter the premises and when the outdoor play area can be used.
2. I adopt Mr Hunt's recommendation that all of the car space adjacent to the southern side of Selby ROW should be allocated to visitors, rather than some for staff. The Council supported that recommendation.
3. The condition requiring a Car Park Management Plan (Condition 16) should be amended to require the plan to also address the need for signage indicating that Selby ROW is a shared zone; advisory information relating to visitors using on-site spaces and showing respect for residential neighbours; and the exclusive use of the car park.
4. The elevation should be corrected to show that there is no fencing in front of 78-80 Brighton Street, consistent with the ground floor plan.
5. Ms Ring raised a concern that lighting of the outdoor areas after dark could result in light spill. I agree with Ms King that the NOD condition referring to the nature of external lighting (for car parks, the pedestrian walkway and building entrances) should be reworded so as to refer to all external lighting.
6. Although my order does not include the 'Notes' suggested by the Council, such advisory information may be included in the permit that the Council is directed to issue.

1. For the reasons explained above, the decision of the responsible authority is varied. A permit is issued subject to conditions that are different to those on the NOD.

64-80 Brighton Street and 511-521 Church Street, Richmond

• Use of land for a Child care centre and associated buildings and works in a Neighbourhood Residential Zone;
• Use of land for a Child care centre and associated buildings and works in a Commercial 2 Zone; and
• Demolition and the construction of carrying out of works, including a fence, in a Heritage Overlay.

1. Before the use and development commences, 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 this 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 prepared by Perkins Architects, dated 25/1/19, but modified to show:
   • (a) Permanently fixed screens with a transparency of no more than 25 percent be applied to the 2.0 metre high acoustic clear glass/perspex screening around the perimeter of the upper level deck where within a within a horizontal distance of 9 metres (measured at ground level) of the secluded private open space of the adjoining property to the north.
   • (b) The correct extent of demolition as it relates to 'Outdoor Playspace 3' on the existing/demolition roof plan.
   • (c) A notation indicating that the gate from the ground floor play area to Gibbons Street be for emergency access only.
   • (d) The reallocation of the car spaces immediately to the south of Selby ROW so that all are available as 'Visitor' spaces.
   • (e) The east elevation showing no front fence at 78-80 Brighton Street, Richmond.
   • (f) Any requirement of the endorsed Acoustic Report (Condition 9) (where relevant to show on plans); and
   • (g) Any requirement of the endorsed Landscape Plan (Condition 15) (where relevant to show on plans).
2. The use and development as shown on the endorsed plans must not be altered (unless the Yarra Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
3. No more than 118 children are permitted on the land at any one time.
4. Except with the prior written consent of the Responsible Authority, the use authorised by this permit may only operate between the hours of 6:30am and 7:00pm, Monday to Friday. More specifically, children (and their carers) may not be on the land until 7:00am on any day.
5. Except with the prior written consent of the Responsible Authority, the use of the outdoor play spaces authorised by this permit may only be used between the hours of 8:30am and 6:30pm, Monday to Friday.
6. The amenity of the area must not be detrimentally affected by the use or development, including through:
   • (a) the transport of materials, goods or commodities to or from land;
   • (b) the appearance of any buildings, works or materials;
   • (c) the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or
   • (d) the presence of vermin

1. The use must comply at all times with the State Environment Protection Policy - Control of Noise from Commerce, Industry and Trade (SEPP N-1).

1. Before the use and development commences, an amended Acoustic Report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Acoustic Report will be endorsed and will form part of this permit. The amended Acoustic Report must be generally in accordance with the Acoustic Report prepared by Acoustic Control and dated 5 February 2019, but modified to include (or show, or address):
   • (a) Deletion of Section 9 to ensure consistency with Condition 5.
2. The provisions, recommendations and requirements of the endorsed Acoustic Report must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Before the use and development commences, an amended Sustainable Management Plan (SMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Sustainable Management Plan will be endorsed and will form part of this permit. The amended Sustainable Management Plan must be generally in accordance with the Sustainable Management Plan prepared by Ark Resources dated 5 February 2019, but modified to include (or show):
   • (a) The SMP (P11) updated to reference a 10,000 litre water tank in accordance with the plans.
   • (b) The SMP (P11) updated to reference 6 bicycle spaces in accordance with the plans.
   • (c) JV3 modelling report.
2. The provisions, recommendations and requirements of the endorsed Sustainable Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Before the use and development commences, an amended Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Waste Management Plan will be endorsed and will form part of this permit. The amended Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Leigh Design and dated 1 February 2018, but modified to include (or show):
   • (a) An alternative collection point other than Brighton Street.
   • (b) Provision made for the disposal of food waste.
2. The provisions, recommendations and requirements of the endorsed Waste Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Before the use and development commences, an amended Landscape Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Landscape Plan will be endorsed and will form part of this permit. The amended Landscape Plan must be generally in accordance with the Landscape Plan prepared by John Patrick Landscape Architecture, dated 22.01.19 (TP01 Rev H 1 of 2) and 23.10.18 (TP02 Rev B 2 of 2) but modified to include (or show):
   • (a) The landscape plan for the upper level play deck updated to show:
     1. The species specified for the pots and planting beds;
     2. Minimum heights for pots provided;
     3. Total number of plants specified in the planting plans.
   • (b) Tree Management procedures as referenced in the letter prepared by John Patrick Landscape Architecture dated 5 September 2017; and
   • (c) Appropriate species selection for the planting adjacent to the northern edge of the vehicle crossing to ensure all vegetation is maintained at a height of no more than 900mm to allow for sight lines for vehicle egress.
2. Before the use commences, or by such later date as approved in writing by the Responsible Authority, the landscaping works shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority. The landscaping shown on the endorsed Landscape Plan must be maintained by:
   • (a) implementing and complying with the provisions, recommendations and requirements of the endorsed Landscape Plan;
   • (b) not using the areas set aside on the endorsed Landscape Plan for landscaping for any other purpose; and
   • (c) replacing any dead, diseased, dying or damaged plants,

1. Before the use commences, a Car Park Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Car Park Management Plan will be endorsed and will form part of this permit. The Car Park Management Plan must address, but not be limited to, the following:
   • (a) the number and location of car parking spaces allocated to staff/parents;
   • (b) the number and location of car spaces for shared use, including time of shared use;
   • (c) details of way-finding, cleaning and security of end of trip bicycle facilities;
   • (d) policing arrangements and formal agreements;
   • (e) details of the management of Selby ROW;
   • (f) a schedule of all proposed signage including:
     1. directional arrows and signage;
     2. informative signs indicating location of disabled bays and bicycle parking, exits, restrictions, and the use of Selby ROW as a shared pedestrian and vehicle zone; and
     3. signs requesting that all visitors park on the site, rather than on the street, and at all times behave in a manner that respects the amenity of residential neighbours.
   • (g) the collection of waste and garbage including the separate collection of organic waste and recyclables, which must be in accordance with the Waste Management Plan required by Condition 13;
   • (h) details regarding the management of loading and unloading of goods and materials; and
   • (i) the use of the car parking spaces exclusively in association with the approved Child care centre and only during its approved hours of operation.
2. The provisions, recommendations and requirements of the endorsed Parking Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

1. Before the use commences, or by such later date as approved in writing by the Responsible Authority, the redundant vehicle crossing along the Brighton Street road frontage must be demolished and reinstated with paving, kerb and channel:
   • (a) in accordance with any requirements or conditions imposed by Council;
   • (b) at the permit holder's cost; and
   • (c) to the satisfaction of the Responsible Authority.

19 Before the use commences, or by such later date as approved in writing by the Responsible Authority, the new vehicle crossing servicing the development must be constructed to satisfy the ground clearance for a B99 design vehicle:

(a) in accordance with any requirements or conditions imposed by Council;

(b) at the permit holder's cost; and

(c) to the satisfaction of the Responsible Authority.

1. Before the use commences, or by such later date as approved in writing by the Responsible Authority, any damage to Council infrastructure resulting from the development must be reinstated:
   • (a) at the permit holder's cost; and
   • (b) to the satisfaction of the Responsible Authority.
2. The cost of modifying any parking signs or road markings for parking bays (where required) shall be borne by the Permit Holder.
3. Except with the prior written consent of the Responsible Authority, Council assets must not be altered in any way.
4. Any services poles, structures or pits that interfere with the proposal must be adjusted, removed or relocated at the owner's expense after seeking approval from the relevant authority.
5. Areas must be provided inside the property line and adjacent to the footpath to accommodate pits and meters. No private pits, valves or meters on Council property will be accepted.
6. No parking restriction signs or line-marked on-street parking bays are to be removed, adjusted, changed or relocated without approval or authorisation from Council's Parking Management unit and Construction Management branch.
7. Any on-street parking reinstated as a result of development works must be approved by Council's Parking Management unit.
8. Before the use commences, or by such later date as approved in writing by the Responsible Authority, the area set aside on the endorsed plans for the car parking spaces, access lanes, driveways and associated works must be:
   • (a) constructed and available for use in accordance with the endorsed plans;
   • (b) formed to such levels and drained so that they can be used in accordance with the endorsed plans;
   • (c) treated with an all-weather seal or some other durable surface; and
   • (d) line-marked or provided with some adequate means of showing the car parking spaces

1. Except with the prior written consent of the Responsible Authority, delivery and collection of goods to and from the land may only occur between 7:00am and 10:00pm on any day.
2. Before the use commences, or by such later date as approved in writing by the Responsible Authority, external lighting capable of illuminating access to the car park, pedestrian walkway and building entrances must be provided within the property boundary. All external lighting associated with the use must be:
   • (a) located;
   • (b) directed;
   • (c) shielded; and
   • (d) of limited intensity,

1. Except with the prior written consent of the Responsible Authority, demolition or construction works must not be carried out:
   • (a) before 7:00am or after 6:00pm, Monday-Friday (excluding public holidays);
   • (b) before 9:00am or after 3:00pm, Saturdays and public holidays (other than ANZAC Day, Christmas Day and Good Friday); or
   • (c) at any time on Sundays, ANZAC Day, Christmas Day and Good Friday.
2. This permit will expire if:
   • (a) the development is not commenced within two years of the date of this permit;
   • (b) the development is not completed within four years of the date of this permit; and
   • (c) the use is not commenced within five 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 six months afterwards for commencement or within twelve months afterwards for completion.

[1] The submissions and evidence of the parties, all supporting documents given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Strategy 10.01 of clause 21.04-4 (Community facilities, hospitals and medical services).

[3] Report prepared by Acoustic Control, dated 5 February 2019, 10.

[4] The policy was introduced into the scheme in August 2009. Although it has not been updated to refer to the new residential zones, it is still applicable.

[5] The policy has not been revised to refer to the new residential, industrial and commercial zones.

[6] [2007] VCAT 716.

[7] The 'Night period' is between 10:00pm and 7:00am. The 'Day period' is between 7:00am and 6:00pm. The 'Evening period' is between 6:00pm and 10:00pm.

[8] Environment Protection (Residential Noise) Regulations 2018.

[9] Rather than a Connector Street - Level 2 (as identified in the traffic report accompanying the application and adopted in the Council's assessment).

[10] A total of 1,721 vehicles were recorded in the period 7:00am to 7:00pm.