1. The decision of the Responsible Authority is affirmed. In permit application PLP/2009/167 a permit is granted and directed to be issued for the land at 620 Mair Street Ballarat. The permit will allow the Use and Development of a 90 place child care centre and display of an advertising sign in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit No. P2968/2009 issued by the Responsible Authority on 14 October 2009 modified and included in Appendix A.

Mr Mark Bartley, Solicitor Phillips Fox. He called the following witnesses:

Use and development of a child care centre at 620 Mair Street Ballarat. The centre is described as:

• 90 place child care centre.
• 24 on site car spaces.
• Single storey building.
• Proposed hours of operation are 6.30am to 6.00pm weekdays.
• Maximum number of staff on site at any one time 19.
• The style of the building is contemporary.
• Access to the centre and car park is from Lyons Street.

Section 82 Planning and Environment Act 1987

State Planning Policy Framework clauses: 11.03-6 Social needs, 14 Settlement, 15.11 Heritage, 18.02 Car parking and public transport access to development, 18.07 Education facilities, 19.03 Design and Built Form.

Local Planning Policy Framework clauses: 21.01 Municipal Overview, 21.04 Land uses, 21.05 Built form, 21.07 Infrastructure, 21.08 Local Areas.

The site is located within the grounds of the Ballarat & Clarendon Junior Campus which has its frontage to Mair Street, Ballarat. The child care centre, whilst within the grounds is located with its frontage to Lyons Street.

Lyons Street[1] (between Webster and Mair Streets) is a one way street with ingress from Webster Street to the north and existing at Mair Street to the south. Lyons Street is characterised by the school (and school grounds) and residential properties.

I inspected the site and surrounds on 14 April 2010.

Kathy Lloyd Pty Ltd v Ballarat City Council [2005] VCAT 515.

Krampitz v City of Footscray 13 VPA 88.

1. The proposal involves constructing a child care centre within the site of the Ballarat & Clarendon College in Mair Street Ballarat. The site of the child care centre is the north east corner of the College campus. There is an existing shed to be relocated and cricket nets demolished.
2. The new building is to be a contemporary form with its frontage to Lyons Street. The staff room is set closest to Lyons Street at 7 metres, whilst the primary building line is set back at 12.5 metres from Lyons Street. The building has been designed as a series of elements with pitched roofs.
3. Secure play areas are provided for each age group. The play space for the 3-13 months old children is located within the front setback to Lyons Street. This area is 140 square metres. The front fence is proposed to be constructed of brick and sheet steel.
4. Car parking is to be provided at grade for a total of 24 vehicles. Access to the car park is via Lyons Street.
5. An identification sign is also proposed as part of the application. The sign is freestanding in the Lyon Street frontage 1.8 metres high by 1.732 wide in the College colours of black, red and grey.
6. As described, the subject site forms part of the College which has its frontage to Mair Street. However, the child care centre is to have its frontage to Lyons Street. The east side of Lyons Street includes residential dwellings. The west side comprises of a combination of the College and residential dwellings.
7. Lyons Street runs in a north south direction and connects Webster Street to Mair Street. It is a narrow road with parking on the east side. Historically it was a two way street but recently[2] Council resolved to convert traffic in Lyons Street between Webster Street and Mair Street to one way, south bound[3].
8. The east side of Lyons Street is zoned residential but located opposite a non residential use. It is also located close to a mixed use and business zoning. It is not the quiet residential hinterland of Ballarat.
9. I am persuaded by the Permit Applicant that the proposed location and design of the facility is appropriate. The key issues in this case can be summarised as:
   • Suitability of the location for a child care centre.
   • Access and car parking arrangements.
   • The built form having regard to the heritage overlay.

Suitability of the location for a child care centre.

1. Ms McCarthy put to me that there is an oversupply of child care places within the City of Ballarat and that the proposal is a 'misuse' of the Special Use Zone 5 which is to protect residential properties.
2. In the case of the oversupply argument, I make the same observations as those of Member Taranto in Kathy Lloyd Pty Ltd v Ballarat City Council[4] that it is a well established planning principle that the lack of need for a proposal, will rarely, if ever be a ground for refusing to grant a permit. From the submissions made, I am unable to make any conclusion as to whether there is an actual oversupply or an undersupply of child care places within the City of Ballarat. I note that the planning scheme informs us that Ballarat is a growing regional city and the population will reach over 118,000 in the next 16 years. This argument is not a sufficient one to refuse the proposed use on the site.
3. It was further submitted that the Special Use Zone 5 is to protect residential properties and the proposed use is a misuse of the zone. I disagree with this submission and find that the use is consistent with the zoning of the land. The land is zoned Special Use Zone 5 Private Education Establishment. The purpose of the zone is:

To provide for the use of land for the purpose of a private education establishment. This includes the use of land for a religious establishment.

1. The zone allows an education establishment as a permit not required use. A child care centre is not defined as an education establishment. However, there are some synergies with co-locating a child care centre within a zone for education facilities. I make the same observations of Mr Bartley that it is not inconsistent to build a child care centre on the subject land as part of the broad educational use of the land and that the use is appropriate within the zoning.

1. The residents in Lyons Street have concerns about the increase in traffic generated by the child care facility and that the lack of on site parking is unacceptable. Council has also required that the proposal provide a total of 25 car spaces on site, an increase of 1 space.
2. Clause 52.06 establishes parking requirements for new development. The use child care centre is not a specified use, therefore the scheme requires that an adequate number of car spaces be provided to the satisfaction of the Responsible Authority. It is proposed to provide 24 car spaces on site accessed from Lyons Street. The northern crossover is to be 6 metres wide and will allow for movements to and from the site whilst the southern crossover is approximately 5 metres wide and is an exit only.
3. In considering the merits of the car parking and access arrangements, reference is made to the objectives of clause 52.06 which include:

To ensure that provision of an appropriate number of car spaces having regard to the activities on the land and the nature of the locality.

To ensure that the design and location of car parking areas:

• Does not adversely affect the amenity of the locality, in particular the amenity of pedestrians and other road users.
• Achieves a high standard of urban design.
• Creates a safe environment for users, particularly at night.
• Enables easy and efficient use.
• Protects the role and function of nearby roads.
• Facilitates the use of public transport and the movement and delivery of goods.

1. Evidence provided by the Traffix Group indicate that a ratio of 0.2 parking spaces per child care place represents an upper level design parking demand rate. Applying this rate, the development requires 18 spaces. The proposal provides 24 on site spaces.
2. The Traffix Group conducted parking surveys which highlighted a total of 15 unrestricted spaces available on the east side of Lyons Street between Webster Street and Mair Street. These spaces were in demand during school hours and a low demand outside school hours. During my inspection I observed that the spaces were all occupied at 9.00am (school time).
3. Based on their empirical surveys, I accept the evidence of the Traffix Group and accept that the provision of 24 spaces will cater for the demand generated by the use. The empirical study at Brentwood Childcare centre[5], was comparable in size and staff numbers etc and surveyed at a peak (parking) rate of 0.18 spaces per child. I accept that the provision of 24 spaces will adequately cater for the likely parking demands of the child care centre while minimising reliance of on-street parking in Lyons Street.
4. The other prime concern from residents is the increase in traffic to be generated by the proposed use.
5. I note that Council's Traffic Engineer accepted the projected traffic movements generated by the permit applicant as well as making recommendations for permit conditions.
6. During my inspection of the morning 'peak' time between 8.30 and 9.15 am I observed some traffic congestion but it primarily related to Mair Street not Lyons Street. I understand from residents that the change to traffic conditions to Lyons Street to one way traffic has improved the traffic flow and impact to the residents.
7. The Traffix Group evidence was that the increase in traffic would be in the order of 71 vehicle trips in the AM peak hour from 8.00 to 9.00am and 60 trips in the period 5.00 to 6.00pm. It is anticipated that the daily traffic volumes in Lyon Street will increase from 399 vehicles per day (vpd) to 598 vpd in a road that has a capacity of 1,000 vpd. It was Mr Robertson's evidence also that the additional traffic would have minimal effect on the operation of the road network including the Mair Street/Lyons Street intersection).
8. I understand the resident's view that the one way traffic direction in Lyons Street has resulted in an improvement to the street and they don't want that to change. However, my findings are based on evidence presented by the Traffix Group on the capacity of the road and the locational context of the street.
9. I am satisfied that the surrounding road network will be capable of accommodating the additional traffic generated by the proposal without any unreasonable impacts on the operation of Lyons Street. I am further satisfied that the provision of 24 car parking spaces is adequate to meet the demand generated by the use.

1. The residents submitted that the proposed building would detract from the significance of the precinct and is out of character with the heritage overlay. The subject site is located within the Central Ballarat Heritage Precinct. The statement of significance identifies the area as an example of a highly desirable mid 19th century goldfields residential area. It further identifies that its close proximity to the central business district of Ballarat made it a prime location for a number of educational, religious and medical institutions. Issues to be considered/assessed include character, scale, bulk, materials, visual setting, roofs, setbacks, orientation, and provision of cars, fencing, details and outbuildings.
2. Lyons Street is comprised of residential dwellings on the east side of the street and a combination of school uses and dwellings on the west side (subject site). Planning policy directs any new development to have regard to the significance of the area.
3. It was put to me that the proposed design respects the heritage significance o the area by maintaining a single storey scale and designing the centre as a series of six small buildings. It is intended that the fragmentation of the built form respects the series of individual dwellings on the east side of the street. The design also includes pitched roofs which are characteristic of the dwellings in the street.
4. I am of the opinion that the proposed built form is appropriate for the location and will not detract from the heritage significance of the area as the design:
   • is a series of small buildings respecting the scale of dwellings opposite;
   • is a contemporary form. The Heritage Overlay does not encourage design that mimics heritage buildings;
   • the selection of materials is simple, again not attempting to mimic the heritage area but has taken cues from the heritage precinct;
   • the front setback is sufficiently recessed to ensure that a domestic scale fronts Lyons Street; and
   • the form includes pitched roofs which respects elements of the heritage overlay.

1. Some concern was raised with respect to noise and amenity impacts. It has been a long held principle of the Tribunal that the noise from children playing is not an offensive one and one which is entirely appropriate for a residential zone. In addition, there is the often repeated quote of the former Planning Appeals Board:

"Children of preschool age who will be brought to the premises will spend much of their time sleeping and some of the time engaged in occupations within the house. It will be a sad day for this community when responsible authorities find that the laughter of little children or their exuberance in playing their games becomes a nuisance"[6].

1. These comments and views apply equally to this case. I do not share the concern of the objectors regarding the potential for noise impacts from the proposed child care facility. It is located within a zone whose purpose is for an education centre, which would not have a dissimilar impact with respect to noise.

1. Mr Bartley made submissions that conditions 1(a) and 1(b) below should not be included on any permit issued. Mr Roberston further made submissions that condition 1(c) requiring 'No Standing' signs is superfluous as they exist.
   1. Before the development or use commence, the owner must enter into a section 173 Agreement with the Responsible Authority made pursuant to section 173 of the Planning and Environment Act 1987 to provide for the following:

(a) The applicant shall commission a traffic study to be conducted six months after the commencement of the use. A copy of the study is to be provided to the Responsible Authority. If the traffic study indicates that there has been an increase in traffic speed in Little Lyons Street, mid block traffic calming measures may be required to be installed at the owners expense.

(b) Payment of a cash contribution to carry out roadworks necessary to implement the creation of a one way street carrying southbound traffic in Little Lyons Street. The works shall be limited to alterations to the entry and exit points of the street, and the installation of associated signage.

(c) Payment of the installation of 'No Standing' signs to the frontage of the site to the satisfaction of Council's Traffic Engineers.

Before the development or use commence, application must be made to the Registrar of Titles to register the section 173 Agreement on the title to the land under section 181 of the Act.

The owner/operator under this permit must pay the reasonable costs of the preparation, execution and registration of the section 173 Agreement.

1. I will not include condition 1 on the permit to be issued. I am persuaded by the permit applicant that there is no legal basis to require the College to retrospectively fund works. I am further persuaded by Mr Robertson that the likely traffic impacts are able to be predicted and that any works required as a result of the proposal should be required as part of the planning permit. With regards to the creation of the one way street, this has been undertaken. It has not been sufficiently demonstrated to me that there is a nexus between the implementation of the one way street and the proposed child care centre. I note that the one way street is in operation.

1. Having regard to the above, I will order that a permit be issued subject to conditions.

1. Before the development starts_,_ amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application and the amended site layout plan submitted on 16 July 2009, but modified to show:
   • (a) The drop off/collection car spaces are to be nominated 10 minute parking bays. Signs (measuring no more than 0.4 square metres) must be erected promoting the use of these bays as drop off/pick up bays only.
   • (b) The provision of a pedestrian path conveniently located on the southern end of the staff parking area to provide access to the building from within the site.
   • (c) The installation of directional signs and alterations to the design of the entry and egress to limit all vehicle movements for the drop off and collection accessway.
   • (d) The installation of directional signs and alterations to the design of the entry and egress to limit all vehicle movements to right turn in only and right turn out only.
   • (e) The installation of an acoustic fence along the northern boundary to ensure the development complies with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No.N-1. The design of the fence must be prepared in consultation with/by a suitably qualified acoustic engineer. The details of the design and acoustic qualities of the fence must be to the satisfaction of the Responsible Authority.
   • (f) Details of the screening devices to ensure that the on site waste storage facilities are not visible from the street.
   • (g) The provision of a security fence to be provided between the child care centre and the education centre to prevent access between the two facilities. The fence may include a gate to be used for emergency access only.
   • (h) Any modifications to the layout and design of the premises required by the Department of Human Services (DHS), with such modified plans to be accompanied by the letter from DHS confirming their acceptance of the plans.
   • (i) The provision of a 1m offset from the sewer main as required by Central Highlands Region Water Corporation or a copy of the Authority's written consent to build over the sewer.
2. The use and/or development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

1. 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 plan must show:
   • (a) A survey (including botanical names) of all existing vegetation to be retained and/or removed;
   • (b) Details of surface finishes of pathways and driveways;
   • (c) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
   • (d) Details of in-ground irrigation systems;
   • (e) The garden bed along the Little Lyons Street frontage is to contain plants with a mature height under 1m to maintain adequate sightlines for drivers into the collection/drop off bay parking areas.

Any landscape must be professionally prepared in accordance with the "City of Ballarat Landscape Guidelines for Development - September 2000 version (section 3.0)".

Before the use of the site commences all landscape works forming part of the endorsed plans must be completed to the satisfaction of the Responsible Authority. Upon completion, the landscaping must be maintained to the satisfaction of the Responsible Authority. The Responsible Authority may defer the implementation of the landscaping works due to water restrictions.

1. Before the use or occupation of the development starts, the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
   • (a) Constructed
   • (b) properly formed to such levels that they can be used in accordance with the plans
   • (c) surfaced with an all-weather wearing course
   • (d) drained;
   • (e) line-marked to indicate each car space and all access lanes;
   • (f) clearly marked to show the direction of traffic along access lanes and driveways

Car spaces, access lanes must be maintained and kept available for these purposes at all times.

All works shall be completed in accordance with plans and specifications prepared to the satisfaction of the Responsible Authority and submitted to and approved by the Responsible Authority before the use/occupation of the development starts.

1. The use may operate only between the hours of 6.30 am and 6.00 pm Monday to Friday without the further written consent of the Responsible Authority.
2. Children must only use the outdoor playground areas between the hours of 7.30 am and 6.00 pm to the satisfaction of the Responsible Authority.

1. Not more than 90 children are to be present on the site at any one time.

1. The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:
   • (a) Transport of materials, goods or commodities to or from the land;
   • (b) Appearance of any building, works or materials
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
   • (d) Presence of vermin or otherwise.
2. No sound shall be emitted from any device or from any source or activity so as to become a nuisance to occupiers of adjoining properties or impair or impinge upon the amenity of occupiers of properties within the near vicinity to the satisfaction of the Responsible Authority.

1. On-site external lighting shall be installed to the satisfaction of the Responsible Authority prior to the occupation of the buildings.

1. The loading and unloading of goods from vehicles must only be carried out on the land.

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

1. All waste material must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no waste is spilled or dust or odour is created to the satisfaction of the Responsible Authority.

1. Any signage must not be illuminated by external or internal light.
2. The signage approval expires 15 years from the date of issue of this permit.

1. The removal of the shed must involved the manual demolition methods (not mechanical demolition) to ensure the English Oak tree is not damaged by these activities.

1. No site scraping and/or lowering of soil levels are to occur within a 9m radius of the base of the English Oak tree.
2. Before the development (including demolition) starts, a tree protection fence must be erected around the English Oak tree at a radius of 9m from the trunk to define a 'Tree Protection Zone'. The fence and associated signage must be erected and maintained in accordance with the recommendations of the 'Arboricultural Inspection and Report' prepared by Arbor Co Pty Ltd dated 22 May 2009.

1. Vehicle access to the proposed development shall be constructed at approved locations in accordance with designs and specifications approved by the Responsible Authority.

The works shall include the construction of a concrete layback and apron and the removal of all redundant access points, reinstating the area to match adjacent materials and profiles.

All works shall be completed to the satisfaction of the Responsible Authority prior to the use hereby approved commencing.

1. All underground or surface works that are considered necessary by the Responsible Authority shall be constructed in accordance with plans, computations and specifications submitted to and approved by the Responsible Authority prior to the commencement of construction.
2. Such drainage works shall include the provision of an on-site stormwater detention system designed in accordance with the City of Ballarat's 'Site Stormwater Management Systems Policy' and installed to transport stormwater run-off from the subject land and surrounding land or adjoining road(s) to an approved point of discharge.

No stormwater shall drain or discharge from the land to adjoining properties without the prior approval of the Responsible Authority.

On completion of the construction of the stormwater detention system, as constructed drawings shall be submitted to the Responsible Authority. The plans shall be certified by a suitably qualified and experienced engineer eligible for Corporate Membership of the Institution of Engineers, that the completed works are in accordance with the approved plans, design levels and specification.

All works shall be completed to a standard satisfactory to the Responsible Authority prior to the use hereby approved commencing.

1. No material shall be permitted to be deposited or remain deposited on any road external to the site by any means including construction vehicles or associated plant entering or leaving the land subject to this permit. Any material deposited on the road shall be removed by mechanical or manual means to the satisfaction of the Responsible Authority.

1. Prior to the issue of a building permit a soil report prepared by a suitably qualified geo-technical engineer or similar shall be submitted to the Responsible Authority which includes data on a reasonable number of test bores on the site as determined in consultation with the Responsible Authority. Any fill and the nature of that fill shall be detailed in the report.

Should the report identify the existence of fill then the following information shall be submitted:

(a) If clean fill, the full extent and depth of the fill is to be shown on a plan. This information may require some alteration of proposed lot boundaries or further works to the satisfaction of the Responsible Authority; OR

(b) If not clean fill, either:

• (i) A certificate of environmental audit issued for the land in accordance with Part IXD of the Environment Protection Act 1970 must be provided prior to the use hereby approved commencing; OR
• (ii) An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of that land are suitable for the intended use prior to the use hereby approved commencing.

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

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

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

[1] The various submissions referred to Lyons Street as Little Lyons Street and Lyons Street north. I have referred to the street as Lyons Street consistent with map referencing.

[3] Council further resolved to amend the existing on street car parking configuration if required to facilitate property access and monitor and evaluate on street parking following a reasonable period (6 months) from one way conversion to determine any need for parking restrictions or traffic calming measures in the street.

[4] [2005] VCAT 515, paragraph 33.

[5] Brentwood Child Care Centre, Berwick. Page 14 of Evidence of Don Robertson, Traffix Group.

[6] Krampitz v City of Footscray 13 VPA 88.