1. Before the development starts: 1. A landscape plan, prepared by a person suitably qualified or experienced in landscape design and 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: 1. A landscape plan indicating trees to be removed or retained including a planting schedule of all proposed shrubs, and ground covers, trees to be retained, including botanical names, common names, pot sizes, sizes at maturity and quantities of each plant, and 2. Details of surface finishes of pathways and driveways. 3. Landscaping and planting of canopy trees within all open areas of the site. 4. All species selected must be to the satisfaction of the Responsible Authority 5. A notation that the tree protection fencing and mulching must be in place to the satisfaction of qualified Arboricultural Consultant and a written confirmation that the tree protection fencing is satisfactory must be forward to the Responsible Authority, prior to the commencement of the construction works, and that the tree protection fence must be in place until all site works have been completed, and no vehicles, plants, construction materials, fill or excavations to under or undertaken within the tree protection zone, all to the satisfaction of the Responsible Authority. 6. A notation that any trenching or excavation proposed to be undertaken within 2 metres of tree protection zones must be by hand under the supervision of a suitably qualified Arboricultural Consultant. 7. A notation that building footings in the vicinity of trees 3 and 6 (of report) must be modified in an appropriate manner to minimise the impact of construction of the roots to the satisfaction of a qualified Arboricultural consultant and the Responsible Authority, and evidence that the Arboricultural Consultant is satisfied with the design of the footings must be submitted to the responsible authority prior to the endorsement of plans. 2. Amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show: 1. Deletion of car parking spaces 6 and 7 in the vicinity of tree number 8 and deletion of up to four other car spaces. 2. Details of all external lighting to demonstrate that light still will be confined to the subject property; 3. Provision of waste storage and collection area. 4. A schedule of external materials and colours of the proposed building 5. Finished floor levels not less than 300mm above the applicable flood level of 22.9m to Australian Height Datum (AHD) 6. A stormwater detention system if necessary 7. An acoustic fence 2.1 metres high along the north boundary, along the east and west boundaries to the south boundaries of the southern play area and the service area on the west boundary, and along the southern boundaries of those areas. 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 childcare centre is occupied the following works must be completed to the satisfaction of the Responsible Authority: 1. Areas set aside for carparking and access lanes as shown on the endorsed plans must be as follows: 1. Constructed with an all weather seal coat. 2. Properly formed to such levels that they can be used in accordance with the plans. 3. Drained 4. Line-marked to indicate each car space and all access lanes. 2. The development including all landscape works. 4. Any green waste generated from the clearing of land during the construction phase must be mulched or transported from the site as appropriate, and green waste must not be burnt on site, all to the satisfaction of the Responsible Authority. 5. Construction works must not impede the use of the parking area associated with the Church or Reception Hall, to the satisfaction of the Responsible Authority. 6. All external plant and equipment must be acoustically treated or placed in sound proof housing to satisfy the provisions of State Environment Protection Policy N1 (SEPP N1), to the satisfaction of the Responsible Authority. 7. All pipes, fixtures, fittings and vents servicing any building under this permit must be concealed in service ducts or otherwise hidden from view, to the satisfaction of the Responsible Authority. 8. Plant, equipment, services or architectural features other than those shown on the endorsed plans must not be located above the roof level of the building without the written consent of the Responsible Authority. 9. External lighting must be designed, baffled and located to prevent any adverse effect on adjoining land, to the satisfaction of the Responsible Authority. 10. Before the development starts a drainage 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:

1. Stormwater not discharged from the site other than by an underground drain discharged to an outlet in the street approved by the Responsible Authority. 2. Sediment control measures during construction works to ensure that no mud, dirt, sand, soil, clay or stones are washed into or allowed to enter the stormwater drainage system.

1. Polluted drainage not discharged beyond the boundaries of the subject land, or into a watercourse or easement drain, and the method of dealing with such polluted drainage. 11. Signs to the satisfaction of the Responsible Authority must be provided directing drivers to the areas set aside for staff and patron car parking and must be located and maintained to the satisfaction of the Responsible Authority. The area of each sign must not exceed 0.3 square metres. 12. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority and used for no other purpose, including that any dead, diseased or damaged plants are to be replaced. 13. Without the further consent of the Responsible Authority, the hours of operation must be restricted to: * Monday to Friday 6.00am - 6.30pm 14. The amenity of the area must, to the satisfaction of the Responsible Authority, not be detrimentally affected through the:

1. Transport of materials, good or commodities to or from the land. 2. Inappropriate storage of any works or construction materials.

1. Appearance of any building, works or materials.

1. Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash dust, wastewater, stormwater, waste products, grit or oil. 2. Presence of vermin. 15. Polluted and sediment laden runoff must not be discharged directly or indirectly into Melbourne Water drains or watercourses. 16. This permit will expire if one of the following circumstances applies:

1. The development is not started within two years of the date of this permit. 2. The development is not completed within of years from the date of this permit.

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

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

Mr J Glossop, consultant planner, of Glossop Town Planning Pty Ltd

Mr M Ness, consultant planner, of Hellier McFarland - Cityplan

1. This is an application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the permit applicant for review of a decision of the Casey City Council ("the responsible authority") to refuse to grant a permit.

1. There being no objection I ordered that the name of the permit applicant and the name of the applicant for review be amended to Melkite Catholic Eparchy Corporation, pursuant to Clause 64(2) and Section 127 of the Victorian Civil and Administrative Tribunal Act 1998.

1. The subject land is on the north side of Somerville Road opposite Regans Road, and between Belvedere Court and Hayes Road. The site is generally rectangular in shape. It has a frontage of 42m to Somerville Road and to the rear of the church building it has a width of 34m. The subject land has a depth of 200m and an area of 7358m2 .
2. The southern part of the land is developed with a church and a reception centre which has a capacity of 192 persons. There is a sealed carparking area serving those buildings to the west and to the rear, with a total of 102 car spaces. Access is by two driveways, one for ingress and the other for egress.
3. The northern part of the subject land, north of the carpark, is vacant and contains some native trees but is otherwise grassed.
4. The surrounding lots are generally developed with single dwellings fronting Belvedere Court, Hayes Road and Sinclair Court. The Uniting Church, which fronts Hayes Road, has a rear boundary abutting the east boundary of the subject land. The Hampton Park Primary School is on the south side of Somerville Road opposite the subject land.

1. The proposal is for use and development of the land to the rear of the existing buildings and carpark for a childcare centre for 110 children. It is proposed to be built in two stages, with stage 1 for 80 children and stage 2 for a further 30 children.
2. It is proposed there would be approximately 16 full time staff, with ten staff for children under 3 years, four staff for children ages over 3 years, and one staff member being a cook and one staff member being the centre director.
3. It is proposed that a room will be allocated for sleeping infants, three rooms for children ages under 3 years, and three rooms for children 3 years and over.
4. It is proposed that the buildings be constructed with a rendered brick cladding and a pitched colourbond roof, with a maximum height of 5.13m.
5. The hours of operation of the centre are proposed to be from 6am to 6.30pm Monday to Friday.
6. It is proposed that the centre occupy the northern section of the subject land, which is presently undeveloped. Pedestrian and vehicular access are proposed to be from Somerville Road and the internal road layout will allow for forward entry and exit for vehicles.

1. The subject land is covered by the Casey planning scheme and is in a Residential 1 Zone, which is the subject of Clause 32.01. A permit is required to use and develop the subject land for a childcare centre.
2. The subject land is covered by a Design and Development Overlay Schedule 1 (DDO1), related to a development plan for setting out road networks, open space and linkages for major community facilities. It was submitted by Mr Ness for the responsible authority that this overlay has no bearing on the subject application as it relates to subdivision of broad acres of land.
3. The purpose of the Residential 1 Zone is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

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

1. Reference was made to relevant planning policies including:
   • Clause 18.07 Education facilities,
   • Clause 19.03 Design and built form,
   • Clause 21.05 The Built Up Area,
   • Clause 22.08 Non-residential Uses in Residential Areas,
   • Clause 22.15 Good Design Policy.

1. The grounds of refusal were:
   1. The proposal in out of character with development on adjoining land.
   2. The proposal would be detrimental to the amenity of adjoining residential properties.
   3. The proposal is unsuitably located having regard to traffic considerations and has potential to generate traffic hazards.
   4. The proposal does not make adequate provision for the separation of vehicular and pedestrian traffic.
   5. The proposal does not make adequate provision for access by emergency service vehicles.

1. The grounds of application for review were:
   1. The proposal is consistent with character of development on adjoining land.
   2. The proposal would not be detrimental to the amenity of adjoining residential properties.
   3. The proposal is suitably located, has regard to traffic considerations, and will not generate traffic hazards.
   4. The proposal makes adequate provision for the separation of vehicular and pedestrian traffic.
   5. The proposal makes adequate provision for access by emergency service vehicles.

1. The permit application was received by the Council on 24 April 2007. Further information was requested on 16 and 22 May 2007 and was lodged on 9 and 30 July 2007. The permit application was advertised and there was one objection containing 85 signatures. The officer report recommended that a permit be granted subject to conditions, but a Notice of Refusal was issued. An application for review of the decision to issue a Notice of Refusal was lodged with the Tribunal on 24 January 2008.
2. The refusal was issued on the grounds set out at paragraph 17 above.
3. Mr Ness said that the subject land has been the subject of the previous permit applications as follows:
   • Planning Permit No. P669/97, issued on 27 May 1998, for a Place of Assembly. This allowed for the reception centre and a total of 86 car parking spaces were required. The apparent age of the church is such that it has existing use rights.
   • Planning Permit No. P110/02, issued on 21 June 2002, for associated advertising signs.
   • Planning Permit application No. P720/04, which was refused on 8 March 2005. The application was for the use and development of a child care centre for 120 children. This was not the subject of an application for review to the Tribunal.
   • Planning Permit No. P53/07, issued 28 February 2007. This allowed an extension to the entrance to the church building.
4. Mr Ness submitted:

Council's refusal of the application and the key issues for consideration relate to the following issues:

• The extent to which the proposal is consistent with the character of the area.
• Impacts on adjoining properties.
• Traffic considerations.

1. One of the purposes of the Residential 1 Zone, as quoted above, is in appropriate locations to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs. I consider that this proposal satisfies the purpose of the zone in this respect.
2. Clause 22.08, Non-residential uses in residential areas, provides for complementary non-residential uses to be integrated into residential areas and to ensure harmony between residential and non-residential uses. Policy also provides for larger child minding centres in excess of 40 children to be located along major roads.
3. It was submitted for the responsible authority that whilst the subject land has a frontage to a main road this advantage is lost due to the childcare centre being located deep into the rear of the site. I do not accept this argument. The point was made in the officer report that Somerville Road functions as a collector road and is therefore considered to be a major road ensuring compliance with policy. The proposed childcare centre will have access to Somerville Road and will not have to traverse any minor streets to reach Somerville Road.
4. Another performance standard of Clause 22.08 is the scale and form of the building respects and is reflective of the single and double storey detached residential character of the area. The surrounding dwellings are generally single storey and single storey development is proposed. I consider that this aspect of policy is satisfied.
5. The subject land is also relatively close to other non-residential uses including the primary school, scout hall and a maternal and child health centre.
6. I consider that the proposal has been designed in a way that will cause a minimum loss of amenity, privacy and convenience to people in nearby dwellings. A number of dwellings abut the subject land on their rear boundaries. It was pointed out on the officer report that the proposed building is located centrally within the rear of the subject land with a setback of 18.5m from the north boundary, 6m from the east boundary and 5.5m from the west boundary. Areas around the building are proposed to be used for outdoor play and it must be expected that children will be outdoors only during daylight hours and at a time that would cause minimal inconvenience if any.
7. The fact that single storey development is proposed will itself minimise any detrimental amenity impact on residents of adjacent properties.
8. Mr Ness submitted:

It is further noted by Member R. Naylor in Lunder v Casey CC [2007] VCAT 190 that:

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

1. I consider that this proposal satisfies the criteria considered important by Member Naylor.
2. Mr Glossop tendered a copy of the decision of Member Komesaroff in CH Architects v Monash City Council [2005] VCAT 1777 28 August 2005. This was an application for review of the decision of the responsible authority to refuse to grant a permit for a childcare centre at 149 Huntingdale Road Ashwood. Member Komesaroff included a Condition 1(c) requiring an acoustic fence to a height of 2.1m along the south and rear abuttals to the rear play area along the north boundary. Member Komesaroff also included a Condition 7 that before the use commences such an acoustic fence be erected, and the design of the fence be prepared either in consultation with or by a suitably qualified acoustic engineer, and the details of the design and acoustic qualities of the fence be to the satisfaction of the responsible authority.
3. I consider it appropriate to require such an acoustic fence under Condition 1. This would mean that the fence would be to the satisfaction of the responsible authority. I consider that this acoustic fence should be along the north (rear) boundary which is an outdoor play area, and on the east and west boundaries southerly to the south side of the play area on the east side and the south of the service area on the west side, and along the south boundaries of both those areas. I do not consider the need for any further condition other than a requirement that it be on amended plans.
4. Mr Glossop called Mr S Davies, a consultant traffic engineer, as an expert witness. Mr Davies provided details of traffic on Somerville Road, Belvedere Court and Regans Road and also provided details of traffic at nearby intersections. It was the evidence of Mr Davies that the intersection of Somerville Road and Regans Road operates well within minimum queues and delays in all approaches, and I accept that evidence.
5. It was the evidence of Mr Davies that there are sealed pedestrian pathways on both sides of Somerville Road and both sides of Regans Road and supervised pedestrian school crossings on Regans Road and on Somerville Road in the vicinity of the subject land. Mr Davies said that vehicle access was proposed by the two existing crossovers to the east and the west of the subject land which are 3m wide, the access point to the west being entry only and the access point to the east being exit only.
6. Mr Davies said that the proposed development is expected to generate 110 and 440 vehicle movements in any peak hour and daily period and that there is adequate capacity in the surrounding road network to cater for the traffic generated by the proposal. He said that there is no reason to suggest that the proposal is unsuitably located with regard to traffic considerations or has the potential to generate traffic hazards. I accept that evidence.
7. It was the evidence of Mr Davies that the majority of children would arrive or depart by car and be dropped off and picked up before and after work. He said the number of pedestrians would be relatively low and use of the driveway and carparking aisles as a shared zone was appropriate due to the low speed environment. He said that this was consistent with the operation of the vast majority of off-street carparks, and I agree.
8. Clause 52.06, Carparking, applies to the proposal. There is a table at Clause 52.06-5 which sets out carparking rates for various uses but not including a childcare centre, and in such circumstances it is provided that an adequate number of spaces must be provided to the satisfaction of the responsible authority.
9. It was the evidence of Mr Davies that the permit for the church and reception centre (permit number P669/97) required 86 car spaces onsite and there is currently a total of 102 car parking spaces on site which is a surplus of 16 car spaces. Mr Davies said that the site is intended have three separate uses, the church, the reception centre and the childcare centre, and consideration must be given to the extent to which parking associated with each use does or does not coincide. He said that when account is taken of the different pattern of activity between uses and different parking patterns an assessment of the overall shared parking requirement can be made.
10. Mr Davies said that the reception centre operates on some weekday evenings and weekends, whilst the church conducts a service on Sunday mornings. It is proposed that the childcare centre operate between 6am and 6.30pm Monday to Friday. Mr Davies said that the hours of operation of the childcare centre would generally not coincide with the hours of operation of either the reception centre or the church, although he acknowledged that on some special occasions, such as funerals, services could coincide. He said that these occasions would be infrequent, and I agree.
11. Mr Davies carried out an empirical assessment of carparking demand and it was his evidence that the average peak parking demand for a childcare centre was 0.20 spaces per child. He said that surveys indicate the typical parking demand occurs for only short periods, five minutes average during the morning and evening peak drop off and pick up periods and peak staff parking demands average 0.57 spaces per staff member. He said that children tend to be dropped off and picked up over several hours rather than at a set time as occurs at schools but peak drop off generally occurs around 9am and peak pick up generally occurs around 5pm.
12. Mr Davies said that application of the peak parking demands of the development proposal would suggest a total parent and staff peak parking demand of up to 22 spaces during the peak pick up and drop off periods and during the remainder of the day the peak long term parking demand associated with staff might be expected to be 10 to 13 car spaces.
13. Clause 22.08, non-residential uses in residential areas, sets out a policy where a permit is required for a non-residential use. One of the performance standards is that carparking will be provided at the rate of one space per staff member, with a drive through drop off way for at least three vehicles and one space per 20 children. He said that based on 18 staff and 110 children the carparking provision of 24 spaces and a minimum three vehicle drop off bay would be required. Mr Davies said that the overall provision of parking anticipated by Clause 22.08 is similar to that anticipated by other sources and given that permits generally refer to the maximum number of children rather than the number of employees the parking rate based on the number of children is more appropriate.
14. Mr Davies concluded that the proposal could be expected to generate a peak parking demand in the order of 22 to 28 car spaces.
15. It is proposed that there be 127 onsite car spaces which would exceed the existing permit conditions for the church and the reception centre by 41 car spaces and given the anticipated peak parking demand for the proposed 110 place childcare centre would be in the order of 22 to 28 car spaces, the proposed car parking would be more than sufficient.
16. One of the grounds of refusal was that the proposal does not make adequate provision for access by emergency service vehicles. It was the evidence of Mr Davies that the proposal would not restrict emergency vehicle access to the proposed development at the rear of the reception centre, and I accept that evidence.
17. I consider that the proposal satisfies the purpose of the Residential 1 Zone and is supported by planning policy. The design and built form is consistent with dwellings in the area and there will be appropriate landscaping, fencing and carparking facilities.
18. I consider, for the above reasons, that a permit subject to conditions should be granted.
19. The responsible authority relied on the conditions contained in the officer report and I took comments on those conditions at the conclusion of the hearing. I have already indicated that it would be appropriate to include a condition requiring acoustic fence.
20. The conditions require deletion of some car spaces because of the number of car spaces provided and also to allow increased landscaping.
21. Melbourne Water Corporation required a condition that floor levels be a minimum of 300mm above the applicable flood level and I consider that this is best placed in Condition 1.
22. Some other redrafting is also appropriate. I have already indicated that a pedestrian pathway as will be required by Condition 1(b)(v) is not required.
23. Condition 4(b) refers to carparking and access lanes required by planning permit number P669/97. If there is any issue with respect to that permit that issue should be dealt with separately.
24. Condition 22 would require that not more than 110 children be on the premises at any one time. This is more appropriate in the preamble to the permit. That condition also sets out numbers of children in each age group. I do not consider that such a condition is necessary.