Mansfield Pre School Centre Inc. & Ors v Mansfield SC [2011] VCAT 1573

1. The decision of the Responsible Authority is varied.
2. In permit application no. P0173/10, a permit is granted and is directed to be issued. The permit relates to the land at No. 56 Highett Street, Mansfield (Lot 1 - TP1727251, TP179646, TP165826, TP165843 and Lot 2 PS624706).
3. The permit will allow the removal of native vegetation in association with a children's and family centre. The permit is subject to the conditions contained in Appendix A.

For Mansfield Shire Council as responsible authority

Mr J Rantino, solicitor, Maddocks lawyers. Mr J B Citroen, traffic engineer, Trafficworks, presented expert evidence. A statement by Mr L Kern, ecologist, Practical Ecology, was tendered. He was not available to present his evidence or be cross-examined.

Three applications under Section 82 of the Planning and Environment Act 1987 [PEAct].

The review site is Council-owned land that is a park surrounded by dwellings and a kindergarten. There are four entry points to the park from Highett, Davies, Ailsa and Hunter Streets, the latter two being narrower than the access points from Davies and Highett Streets.

Children's and family centre for 50 children. Nine consulting rooms would operate between 9am and 5pm Monday to Friday. Long day care would operate from 7.30am to 6.30pm Monday to Friday. On-site parking for 44 cars would be accessed from Davies Street with bicycle parking also provided. Davies Street would be constructed as would pedestrian links. A River Red Gum would be removed.

Clauses 10, 11, 12, 18, 19, 21, 22.08, 36.02, 52.06, 52.34, 65 and 74.

Prior to the hearing as parties were advised at the commencement of the hearing. The area was revisited during lunchtime and after the hearing.

1. The Applicants (Mansfield Pre School Centre Inc., Mr Fabris and others, and Mr Lawson) want to overturn a decision by the Mansfield Shire Council to allow a children's and family centre to be developed on the Mansfield Community Park. One of their primary reasons is that they oppose the loss of public open space.
2. Unfortunately, for the Applicants, as I explain in this decision, I am unable to review the Council's decision on most of the grounds upon which they rely.
3. My decision in this case firstly addresses the reasons why a planning permit is required for the proposed children's and family centre. Having considered submissions on this question, I find the only reason a planning permit is required is to remove native vegetation. The removal of one remnant tree is a minor issue when compared with the Applicants' overall concerns about the permit application. However, the reason why a planning permit is required is very limited. My ambit is confined for this reason.
4. This finding may add to the degree to which the Applicants feel aggrieved and frustrated about the planning process for the children's and family centre. The legal position is not, however, something that I can contort or depart from and, consequently, although it is appropriate to vary the Council's decision for reasons I explain below, I am not able to address or uphold the many objections Ms Beautyman, Mr Lawson and Mr Fabris have raised with respect to the Council's decision.

1. The Mansfield Shire Council is the permit applicant for a children's and family centre at No. 56 Highett Street, Mansfield. The Mansfield Shire Council, as responsible authority, determined to grant a planning permit subject to conditions.
2. The Mansfield Pre School Centre Inc., Mr Mark Fabris and others, and Mr Donald Lawson have applied for that decision to be reviewed by the Tribunal. Their grounds vary but, overall, they are concerned that a children's and family centre is not appropriate to be located on this public park. Concerns include impacts on the adjacent kindergarten, more traffic in various streets, increased on-street parking and a loss of amenity for nearby residents.
3. The Tribunal must decide whether to grant a planning permit. In deciding whether to grant a planning permit, I must first consider the ambit of discretion in this proceeding. That dictates the extent of consideration possible by the Tribunal with respect to the planning merits.

What is the ambit of the Tribunal's discretion[2]?

1. Submissions and grounds relied upon by Mr Fabris, and a preliminary issue[3] raised by the permit applicant, dispute the applicable permit triggers for the proposed children's and family centre.
2. Mr Fabris submitted the Council has wrongly determined that no use permission is required. He submitted the Public Park and Recreation Zone [PPRZ] does not support the proposed operation on a public park. He submitted the proposed facility is not associated with the public use because services from the Council-owned building would be outsourced with profits to go the operator. He submitted the proposal requires a permit under Section 2 of the PPRZ for reasons explained in his submission and should fail because the facility is not associated with the public land (park). Mr Lawson submitted the hearing should deal with all of the issues of concern and confining the review would be inadequate. He submitted the legal entity to operate the facility, and run it as a business, is undefined and unresolved supporting his position that the proposal should be referred back to the Council to be fully addressed. He referred to the facility's Business Plan that, he submitted, demonstrates the proposal is a commercial operation and not associated with the public use.
3. Conversely, Mr Rantino and Mr Bowden submitted a planning permit is not required for the use or development of the children's and family centre under the PPRZ. This is because the centre is proposed on public land and would be undertaken by or on behalf of the public land manager. Mr Rantino explained why he submitted a permit is required only for the removal of one River Red Gum. Mr Rantino described the establishment and operation of the facility as comprising the following components:
   • The review site is owned by the Mansfield Shire Council, a local government authority under the Local Government Act 1989.
   • The proposed building would be constructed on behalf of the Council through a tender process.
   • The centre would operate under a Committee of Management that would be established by the Council and be responsible for oversight of the facility such as governance, strategic and financial planning.
   • Council staff would operate family services from the facility.
   • Long day care would be run on a not for profit basis through a licensed service provider with any profit after salaries to be provided to the Council to assist servicing the capital loan interest.
4. These components are consistent with the assumptions within the Business Plan[4]. Agreements are not, however, yet formalised.
5. Planning Schemes control both the use and development of land[5]. The permit application described the proposal as "To construct a family and children's centre". I understand that some correspondence with respect to the advertising under Section 52 PEAct referred to "use and construction of a children's and family centre". The Notice of Decision described "What the permit allows" as "Construction of a children's and family centre".
6. It is, therefore, apparent that the Council's position on this question (as responsible authority and permit applicant) has changed. The "shift in ground rules" is understandably of concern to the Applicants. It is incumbent on me to resolve the question.
7. First, I refer to Clause 36.02, the PPRZ. Having regard to the facts described by the permit applicant that I have set out in paragraph 9, I find:
   • The use of the proposed facility is to be carried by and on behalf of the public land manager. Part will be direct Council service provision and part will be on behalf of the Council. The children's and family centre is, therefore, a Section 1 use under Clause 36.02-1.
   • No permit is required for buildings and works associated with the proposal under Clause 36.02-2 because the proposed children's and family centre will be constructed on behalf of the public land manager.
8. My conclusion on these points has taken into account the Business Plan and the understanding that profits would be generated. There is an expectation that a Council and a Committee of Management established by a Council will operate facilities and services responsibly and in a publicly accountable way. The Business Plan is part of this. The intent for any profits to be returned to the Council underscores the conclusion that the proposal is to be carried out by and on behalf of the public land manager.
9. Consequently, I find that no permit is required for either use or development of the land for the proposal under Clause 36.02.
10. Second, I refer to Clause 52.06 with respect to car parking provision and design.
11. Under Clause 52.06, a responsible authority is required to be satisfied about on-site parking provision and the car park layout[6].
12. No permit is required with respect to Clause 52.06-1 because there is no specified amount of car parking required for a child care centre in Clause 52.06 or any other Clause. I was advised that the responsible authority is satisfied with the amount of parking proposed to service the facility.
13. I have considered the expert evidence with respect to car parking because I must determine whether any variation from the design requirements triggers a planning permit under Clause 52.06-3. I do not consider that a permit is required given the proposed car park dimensions and the expert evidence. I note a recommendation by the witness to relocate a disabled parking bay.
14. Consequently, the Applicants' concerns about overflow parking and the extent of analysis in the expert report (such as with respect to Hunter Street) are also not matters that I have power to review.
15. Third, I refer to Clause 52.17 with respect to native vegetation removal. It is common ground between the parties that a permit is required to remove one River Red Gum[7]. Several other trees would be removed and were said by the responsible authority to be exempt under Clause 52.17. That position that was not challenged by other parties.
16. It follows from the above that my decision in this proceeding is confined to the removal of the River Red Gum and the relevant provisions of Clause 52.17 and applicable policies. Although submissions were made about tree removal (which I address below), the Applicants' concerns are far more wide ranging. That a permit is required under Clause 52.17, where third party rights of appeal are available, does not then give latitude to consider the use and development overall. That is, the ambit of my consideration cannot be broadened rather it is confined to the reason why a planning permit is required. On this question, Mr Rantino referred to the findings of the Tribunal in Iluka Resources[8] which is authority for the position that the specific controls that apply limit the scope of the Tribunal's consideration. Simply because a permit is required under one part of the Scheme does not bring into consideration the full panoply of planning considerations set out in sections 60 and 84B PEAct and in Clause 65 of each Scheme.
17. Other concerns raised through the Applications are that the facility is in the wrong location and that the processes adopted by the Council were flawed, such as with respect to the formulation of the proposal and a lack of consultation with the community by the Council. As explained at the hearing, I am obliged to make a decision about the proposal shown in the permit application within the limited scope as to why a planning permit is required. I do not have scope to review whether there are alternative or better sites or inquire into or investigate consultation and site selection processes associated with the project undertaken by the Shire Council.

Is the removal of a remnant native tree acceptable?

1. The Applicants opposed the loss of vegetation referring to the lack of an environmental assessment and a failure to recognise impacts on nesting native birds in established gum trees. The removal of vegetation including the River Red Gum was identified as the loss of an opportunity for children to appreciate and observe nature including through education at the kindergarten where the life cycle of magpies has been taught.
2. Clause 52.17 addresses the removal of native vegetation. As stated, the proposal involves the loss of several trees but only one remnant River Red Gum requires a permit for removal under Clause 52.17. Relevant policies to a decision include Clauses 12.01, 21.02-3 and 22.08.
3. The focus of the Scheme provisions and policies is to protect biodiversity. It is to avoid the removal of native vegetation, to minimise removal if it cannot be avoided, and to appropriately offset any losses.
4. The permit application was accompanied by an arborist report assessing the River Red Gum. I also have the benefit of a written statement of evidence by Mr Kern who had reviewed that arborist's report[9]. I am satisfied based on this advice that the tree's condition is poor from an arboricultural perspective even though it appears handsome in its setting. It provides habitat for common species and amenity value but it is otherwise isolated from other habitats and unlikely to be significant for any threatened fauna.
5. Mr Kern proposes an alternative way to achieve net gain for the loss of a "Large Old Tree"[10] than adopted in the Council's Notice of Decision. That involves location of an offset off-site where ecological management can be undertaken rather than more landscaping on-site. The recommendation is accepted by the responsible authority and permit applicant and would supplement landscaping that is part of the proposal. A standard condition addressing the identification and management of offsets was proposed by the permit applicant and not opposed by any other party. I will adopt that condition and do not consider further environmental assessment is required.
6. Mr Lawson submitted low ground cover should be part of a landscape plan. The landscape plan that forms part of the proposal provides a range of planting layers. The potential for additional low ground cover can be assessed by the responsible authority when reviewing a landscape plan that will be required to be submitted by the permit applicant for endorsement. However, overall, the landscaping plan provides for an increased amount of planted vegetation within the whole of the park that will contribute positively to habitat and biodiversity values. It could become part of the kindergarten's education program if desired.
7. For the above reasons, I consider removal of the tree is acceptable on the basis that other native vegetation has been avoided, new landscaping is proposed on-site, and offsets can be required. I am satisfied that an offset opportunity will be available given the loss of only one tree as part of this permit application. I will amend the conditions in the Notice of Decision to require an offset plan to the satisfaction of the responsible authority.

1. Questions arise about the content of the Notice of Decision as a consequence of my findings about the applicable permit triggers, notably:
   • The description of what the permit allows refers to construction of the proposed centre and not to native vegetation removal.
   • Many of the conditions relate to car parking layout and access that are relevant to the matter the responsible authority was required to be satisfied about but for which no planning permit is expressly required.
   • Multiple conditions included in the Notice of Decision may go beyond the ambit available, for example Condition 10 that addresses residential amenity.
2. I raised these matters with the parties at the hearing given submissions as to the relevant permit triggers. The Council as permit applicant and responsible authority agreed on the wording of an alternative description of what the permit allows. I have adopted that revision. The permit applicant and responsible authority also agreed to add conditions to ensure the proposal's link with the public land manager given the Applicants' concerns and the dispute about this matter.
3. Mr Rantino submitted that the permit applicant has no issue with any conditions included in the Notice and there is a valid basis for them given the Court's decision in Stogdale[11]. This submission was not challenged. I have also recorded that the permit applicant accepts the conditions. However, I am not inclined to accept Mr Rantino's submission. That is because many of the conditions seek to regulate detailed aspects of the use and development of the proposed children's and family centre for which no planning permission is required. While the outcomes may be desirable, I consider the conditions overstep those that may reasonably be imposed given the very confined nature of the planning permission required for a children's and family centre by and on behalf of the public land manager on the review site. As the Council is the service provider and will enter into service agreements, it can address the matters referred to in deleted conditions such as through service agreements or in its own practice as public land manager and road authority, for example, with respect to works in Davies Street and to provide neighbouring property owners with information about the timing and management of construction.
4. The Applicants made a number of suggestions as to permit conditions should the Tribunal determine to grant a permit. I do not find them to appropriate in the context of the decision I must make.
5. However, I suggest that it would be prudent for the plans to be corrected by the Council to remove reference to stage 2 (as I was advised that no such extension is proposed) and to relocate a disabled car space consistent with Mr Citroen's evidence. The plans could address lighting and other detailed design matters that were associated with conditions that I have deleted. The plans could also be modified to avoid any overhang from the entry affecting the kindergarten area.

1. For the above reasons, I am persuaded the proposal represents an acceptable outcome having regard to the requirements of the Mansfield Planning Scheme based on the very limited range of matters that I am able to consider. I will grant a planning permit and vary the Council's decision. I will direct the permit be issued subject to modified permit conditions that reflect my findings.

No. 56 Highett Street, Mansfield (Lot 1 - TP1727251, TP179646, TP165826, TP165843 and Lot 2 PS624706)

Removal of native vegetation in association with a children's and family centre

1. The vegetation removal allowed by this permit and shown on the plans and/or schedules endorsed to accompany this permit must not be amended for any reason without the prior written consent of the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:
   • (a) The vegetation removal is not started within two years of the date of this permit.
   • (b) The vegetation removal is not completed 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.

1. Prior to the commencement of the vegetation removal hereby permitted or such later date as the Responsible Authority may approve in writing, a landscape plan prepared by a suitably qualified professional and generally in accordance with the Landscape Concept Plans prepared by Ground Control (10316- Schematic Design v2) shall be submitted to and approved by the Responsible Authority. When approved, such plan shall form part of the endorsed plan in accordance with this permit. The landscape plan must include:
   • (a) A survey of all existing vegetation and natural features showing plants to be removed.
   • (b) A schedule of all proposed trees, shrubs and ground cover, which will include the location, number and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface materials as specified.
   • (c) The species selected for planting along the road reserve of Davies Street.
   • (d) Any staging of landscaping with an approximate time of completion.
   • (e) Details of the maintenance of landscaped areas (including mulching, watering systems and weed management).

1. Prior to the occupation of the children's and family centre, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority

1. 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.

1. Before any vegetation removal commences, an offset plan to the satisfaction of the Responsible Authority must be submitted to the Responsible Authority for its approval. When approved the plan will be endorsed and then form part of the permit. The plan must be drawn to scale with dimensions (where appropriate) and three copies must be provided. The offset plan must show appropriate offsets to compensate for the loss of one River Red Gum. The offset plan must include details of the following as relevant:
   • (a) Means of calculating the offsets.
   • (b) Locations where offsets will be provided.
   • (c) Types of offsets to be provided.
   • (d) Details of revegetation including number of trees, shrubs and other plants; species mix; and density.
   • (e) Means of interim protection for newly established vegetation until established.
   • (f) Methods for permanent protection for the offsets.
   • (g) Persons responsible for implementing and monitoring the offset plan.
   • (h) Timeframes for implementing the offset plan.

1. The children's and family centre must at all times operate by or on behalf of the public land manager.
2. Prior to occupation of the children's and family centre, any management agreement with respect to the operation of the children's and family centre on behalf of the public land manager must be operative to the satisfaction of the Responsible Authority.

[1] I have considered all submissions, evidence and material tendered and filed by the parties but do not recite it all in these reasons.

[2] To the extent that this question raises a question of law, no party objected to me determining the matter when I asked about this at the hearing. Mr Rantino submitted there is no question of law but did not oppose me determining any question. Mr Bowden and all Applicants offered no objection when I raised this point.

[3] The matter was foreshadowed in correspondence from Maddocks lawyers in April 2011. After discussion at the commencement of the hearing, the parties agreed to proceed at the hearing on the basis of all submissions being received by me, with a decision to then be made by the Tribunal with respect to this question.

[4] Page 46 of the Business Plan dated September 2010.

[5] Development for the purposes of a planning permit is different to a building permit under the provisions of the Building Act 1993 and associated Building Regulations 2006.

1. [6] Clauses 52.06-1 states "Where a use is not specified in the table at Clause 52.06-5, an adequate number of car spaces must be provided to the satisfaction of the responsible authority". Clause 52.06-2 states "Before any use commences or any building or works associated with that use or an existing use is constructed, a plan must be prepared to the satisfaction of the responsible authority showing all required car spaces, access lanes, driveways and associated works and landscaping". Clause 52.06-3 addresses the design and layout of car spaces. A permit is only required to vary the specified design requirements.

[7] There were some suggestions that more than one tree would be removed but the second River Red Gum is shown as being retained with an exclusion area around it within the outdoor play area.

[8] Victorian National Parks Association Inc. v Iluka Resources Limited [2004] VCAT 20 at paragraph 35. The same point is illustrated in other proceedings such as Shailt that is referred to in Iluka Resources.

[9] As recorded above, Mr Kern was not available to present his evidence. That affects the weight it can be given but I also note that there was no challenge to his evidence.

[10] As defined in the Native Vegetation Framework.

[11] Stogdale v StonningtonCC [2004] VSC 348.