The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for a Child Minding Centre at 364 McKinnon Road, Bentleigh East generally in accordance with the endorsed plans and subject to the following conditions:-

1. Before the development starts amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with plan No 4635, TP 1 of TMP Drafting Service dated August 2001, but modified to show:

A) The scale, dimension and materials of new boundary fences and any alterations to existing boundary fences, including an acoustic fence (10kg per square metre) on the south and east boundaries of the site, adjacent to the kindergarten group play area, the acoustic fence is to have a minimum height of 2 metres and chain mesh (or the like) above to 3 metres.

B) The five on-site car parking spaces being allocated for staff parking only.

C) The existing vehicular crossing to Joy Street being removed.

D) The cross over to McKinnon Road with a maximum width of 4.5 metres.

E) Colours and materials including paving materials.

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

3. Before the use starts works as set out on the endorsed plans must be completed to the satisfaction of the Responsible Authority.

4. The hours of operation permitted are as follows:-

* The use may only operate between the hours of 7.15am to 6:15pm Monday to Friday

* The use must not operate on weekends and public holidays

5. The loading and unloading of goods must only be carried out on the land.

6. The amenity of the area must, to the satisfaction of the Responsible Authority, not be detrimentally affected by the use or development through the:

a) Transport of materials, goods or commodities to or from the land.

c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

7. The site must be kept in an orderly and tidy state and its appearance must not prejudicially affect the amenity of the area, all to the satisfaction of the Responsible Authority.

8. Except with the written consent of the Responsible Authority, the number of children accommodated, enrolled or left for care and supervision on the site must not exceed 73;

9. The child to staff ratios must be in accordance with those prescribed under the Children's Services Regulations 1998, as from time to time amended ("the child/staff ratios"), and except with the written consent of the Responsible Authority, the maximum number of staff, child minders, or other persons associated with the care, supervision and administration of the use must not exceed 12.

10. The car spaces as shown on the endorsed plan must be clearly identified as "staff parking" by signage or other means to the satisfaction of the Responsible Authority, and the owner and/or occupier must ensure that such spaces are not used by parents for parking or drop-offs.

11. The car park areas must be kept available for such purposes at all times.

12. Before the use starts Permit No. MBN/450 issued by the former City of Moorabbin on 28 February 1972 for a child minding centre must be cancelled in accordance with the provisions of the Planning and Environment Act 1987.

13. Before the use starts the owner of the land must enter into an Agreement with the Responsible Authority, pursuant to Section 173 of the Planning and Environment Act 1987. The Agreement must be to the satisfaction of the Responsible Authority and be registered on title and run with the land. All costs associated with the Agreement must be borne by the owner. The Agreement must be provided that, to the satisfaction of the Responsible Authority, the use must be in accordance with the Management Plan required by Condition 14.

14. Prior to the permitted use commencing the permit holder must submit a management plan setting out the measures to be implemented by the permit holder to assist in the orderly management of the permitted child minding centre to limit any impacts of the use on the amenity of the locality, to the satisfaction of the Responsible Authority. The management plan must include measures relating to the use of the external play areas, and practices for dealing with unsettled children in the external play areas. The plan must not be revised without the consent of the Responsible Authority. The permit holder must implement the provisions of the Management Plan.

15. The permit will expire if one of the following circumstances applies:

a) The development is not started within 2 years of the date of this permit.

b) The development is not completed within 4 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 3 months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Ms Sue Monagle, Town Planner, appeared on behalf of the Responsible Authority.

The following Respondent/Objectors appeared on their own behalf:

Mr Dominic Scally, Solicitor, appeared on behalf of the Applicant for Review and Permit Applicant. Mr Scally called Ms Christine Barnes, Town Planner, and Mr Ian Pitcher, Traffic Engineer, as witnesses in support of his submissions.

1. This is an application to review the decision of the Responsible Authority to refuse permission for a Child Mind Centre encompassing the alteration and extension of an existing Child Minding Centre to enable an increase in the number of children accommodated to 73. The Responsible Authority issued a notice of refusal to grant a permit, notwithstanding the recommendation of its officers, for the following reason:

"The proposed extensions and associated increase in the numbers able to attend constitute an unacceptable increase in intensity of the use with resultant detriment to residential amenity and traffic efficiency and safety."

2. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject site and its locality. At the commencement of the hearing Mr Scally applied to amend the permit application by substituting Mr Neville Matthews as the permit applicant. No party objected to this proposal, and the Tribunal ordered the amendment of the permit application in accordance with Mr Scally's request.

3. At the conclusion of the hearing the Tribunal gave oral reasons for its decision to set aside the decision of the Responsible Authority and direct the grant of a permit for a child minding centre. A summary of the Tribunal's reasons is set out below.

4. The existing Child Minding Centre is in an entirely appropriate location, and on an appropriate site for a community facility of its type. The land is within a residential zone, the area is residential in character, the site has two street frontages, and one of the streets onto which it abuts is a collector road.

5. The planning policy framework and the zone purposes support the provision of community facilities required by the local community. A child minding centre performs this role, and the evidence supports the idea that there is a need for additional places within child minding centers in this locality.

6. The minimal development required supports the conclusion that the site can accommodate 73 child minding places. As a general rule, it is my view that unless an unacceptable adverse effect can be demonstrated, the optimal use of existing infrastructure should be encouraged. Therefore in this case the issue to be resolved is what are the consequences of the proposed child minding centre vis-à-vis the existing child mind centre. In my view there are only two consequences of significance noise and car parking.

7. Noise associated with child mind centers is a difficult issue. Child minding centers are properly located within residential areas. A child minding centre with a capacity of 73 child minding spaces is not unusual. Therefore, there will always be neighbours affected by the noise associated with a child minding centre of this type. Hence as for schools I think it is difficult to argue that the noise from a child minding centre is unacceptable in a residential environment. However, I agree with Ms Barnes that the location of the kindergarten group play area leads to the conclusion that some management is required, and that an acoustic fence would be desirable to the south and east of the kindergarten play area.

8. In relation to car parking the new on-site car spaces provided in this proposal has the effect that the ultimate outcome is an improvement over the existing conditions. There will on occasions be some congestion at dropping off and picking up time, but much less than would be normally experienced around a school. The management plan can be used if necessary, to manage dropping off and picking up time but in my view the operator of the centre has limited power to control the on-street behaviour, even of the children's parents. The Council could if it is deemed desirable create a pick-up and drop off area by for example imposing a 10 minute parking restriction, but I note that in the relatively long history of this Child Minding Centre, such a measure has not been thought necessary.

9. For all the above reasons it is the Tribunal's view that a permit should be granted for the proposed Child Minding Centre providing for a child minding centre which is operating on a somewhat different basis to that of the existing child minding centre.