2. The request for a declaration in Application 512/2003 is granted.

3. Pursuant to Section 149A(2) Planning and Environment Act 1987 the Tribunal declares "the Boroondara Planning Scheme and approved development plans do not preclude children playing in the front gardens of 3 and 5 Rossfield Avenue, Kew".

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1. Two applications are brought before the Tribunal by Methodist Ladies College (MLC) both relate to young children (generally between the ages of 1 - 4 years) being able to play from time to time in the front gardens of 3 and 5 Rossfield Avenue, Kew.

2. Application P511/2002 is an application pursuant to Section 149 Planning and Environment Act 1987 to have the following decision reviewed:

The decision of the City of Boroondara to refuse to be satisfied with an amendment to the Development Plan under Schedule 1 to the Development Plan Overlay to permit the front gardens of Nos. 3 and 5 Rossfield Avenue to be used from time to time for child play.

3. Application P512/2003 is an application pursuant to Section 149A Planning and Environment Act 1987 (PE Act) for a determination whether:

Clause 1.0 in Schedule 1 to the Development Plan Overlay in the Boroondara Planning Scheme and in particular the provision that:

The facades and front gardens of Nos. 3 and 5 Rossfield Avenue must be preserved as necessary in order to present a residential streetscape to Rossfield Avenue. or

Precludes children playing in front gardens of Nos. 3 and 5 Rossfield Avenue from time to time.

4. Mr Pitt sought a declaration that "the planning scheme and approved development plans do not preclude children playing in the front gardens of 3 and 5 Rossfield Avenue, Kew".

5. At the commencement of the hearing Mr David Collins who lives opposite Nos 3 and 5 at 4 Rossfield Avenue sought to be made a party pursuant to Section 60 Victorian Civil and Administrative Tribunal Act 1998. There was no objection to this application by either the Responsible Authority or the Applicant and accordingly the Tribunal joined Mr Collins as a party.

6. The planning history to this matter, is conveniently contained in a letter dated 3 June 2003 from the Responsible Authority:

The Minister for Planing and Local Government approved amendment L21 on 26 May, 1997(copy enclosed). The amendment required the preparation of a concept plan detailing the future development of MLC, for a range of educational uses, to be incorporated into the planning scheme. No's. 3 and 5 Rossfield Avenue, Kew form part of this amendment.

Council approved a concept plan for MLC pursuant to Amendment L21 on 3 June 1999 under the old format Boroondara Planning Scheme. This amendment approved the use and development of the Early Learning Centre for MLC, including use of No's 3 and 5 Rossfield Avenue. A copy of the endorsed plans are enclosed (Ref: Project No 98035, Plan No's. A0.04 Rev. T1. A1.00 Rev. C1, A1.01 Rev. T1, A2.01 Rev. T1, A2.02 Rev. T1, A2.03, Rev. T1, A3.03 Rev. T1, A3.31 Rev T1, Project No 9816 Plan No's DD04 Rev. A & DD)5 Rev. A).

Construction of the Early Learning Centre commenced in accordance with the above mentioned plans. During the construction phase, MLC proposed changes to the Early Learning Centre. At this point in time, the new format Boroondara Planning Scheme had come into effect (16 December, 1999). The new Scheme zoned the land Residential 1 and also introduced a Development Plan Overlay onto this site. Under the provisions of the Development Plan Overly, any changes to the development plan were required to [be] publicly exhibited for two weeks which occurred.

Subsequently, revised plans were endorsed by Council on 23 June, 2000 approving changes to the Early Learning Centre, including the use of No's 3 and 5 Rossfield Avenue. A copy of these plans and covering letter is enclosed (Ref: Project No 98035 A1.00, A1.01 & A2.01). It is important to note from the cover letter that some of these plans supersede those endorsed on 3 June, 1999.

It is also noted that the new format planning scheme placed a Development Plan Overlay on MLC. This overlay control contains a schedule which restricts the appearance and use of the Rossfield Avenue properties and is the subject of this hearing.

MLC lodged a new master plan with Council to enable construction of the new Junior School in 2001.

At its meeting held on 17 December, 2001 Council resolved to adopt the amended development plan (Amendment L21) relating to the new Junior School. Please find enclosed a copy of the endorsed development plans (Ref: Project No. 01-021, Drawing Nos. A0.01 Rev. C1, A1.01 Rev C1, A2.01 Rev C1, A2.02 rev C1, A3.01 Rev C1, A3.02 Rev C1, A3.03 Rev C1, A3.04 Rev C1).

Further, at its meeting held on 17 December 2001 Council determined to issue a Planning Permit (Ref: BOR/01/01475) subject to conditions to construct additions and alterations to the existing Junior School. Please find enclosed a copy of the endorsed plans and planning permit (Reference: Project No. 01-021, Drawing Nos. A0.01 Rev. T1, a1.01 Rev T1, A1.02 Rev T1, A2.01 Rev T1, A2.02 Rev T1, A3.01 Rev T1, A3.02 Rev T1, A3.03 Rev T1, A3.04 Rev T1).

In light of the above information, it is considered that the most relevant documentation relating to the use and development of the properties at No's 3 & 5 Rossfield Avenue is the endorsed pans for the Early Learning Centre, dated 3 June 1999. It is noted that no conditions are included on any planning permit issued for the site relating specifically to the use of the front setbacks of the properties at No's 3 & 5 Rossfield Avenue.

Council provided written advice in relation to the use of the facades and front gardens of these properties on 12 November 2002. A copy of this letter is enclosed for your information. This represents the only formal advice given by Council on this matter.

7. Mr Rantino, on behalf of the Responsible Authority, submitted, the Tribunal did not have jurisdiction to hear the application pursuant to Section 149 PE Act as the Responsible Authority had no record of an application being made by MLC to amend plans that had been endorsed following Amendment L21 to the Boroondara Planning Scheme.

8. Mr Pitt indicated MLC was not pursuing the application under Section 149 PE Act and therefore no determination in relation to the mater was required by the Tribunal. In light of this, Mr Rantino did not make any submissions in relation to the application pursuant to Section 149 PE Act. The Tribunal will therefore dismiss this application.

9. It was Mr Rantino's contention in relation to the application for declaration, that to bring a matter for consideration under Section 149A PE Act there must be an issue. There is no issue he submitted because there is no proposal or consideration of a Development Plan under the Development Plan Overlay, although he conceded the land does enjoy existing use rights and Section 6(3) PE Act as well as clause 63.05 of the planning scheme apply to the land.

10. Mr Rantino referred to the Tribunal decisions in Bayside CC v Firbank Anglican School [1999] VCAT 1791 (3 November 1999) and Premier Homes (Vic) Pty Ltd v Yarra Ranges SC [2002] VCAT 1633 (12 November 2002).

11. In Firbank Anglican School the Tribunal refused to make declarations sought as to the meaning of the term "normal school activities" used in a condition in a permit. Deputy President Bruce referred to the basic requirements to be satisfied noting the Tribunal has wide jurisdiction to make declarations as to planning matters the requirements include: there must be a dispute in existence; the jurisdiction is not available if the issue is purely theoretical; the dispute must not only be in existence but must be attached to facts; the dispute must be real, not hypothetical; the dispute must be of practical importance; the making of the declaration must be of practical use.

12. In Premier Homes Senior Member Walker stated Section 149A ... does not purport to confer any power to give an advisory opinion. This case does not concern any particular proposal or any particular site. What the Applicant is really seeking is a declaration as to what a particular provision of the Planning Scheme means". In this matter the Tribunal did make a declaration after the application was amended to relate to a particular piece of land.

13. Mr Pitt referred to the contents of a letter dated 13 March 2002 which it was indicated had not been received or no record of receipt could be found by the Responsible Authority, however this letter appears to set out some of the circumstances that are background to this matter and expresses the views of MLC, it states inter alia that:

"This application for amendment to the approved Kindle Development Plan is made on the basis of some confusion as to the rights to use the front garden of Nos 3 and 5 Rossfield Avenue.

The college believes there is no constraint to the use of the front garden by students at the Kindle by virtue of the earlier approval of a development plan, while some neighbours believe that such use was not contemplated by the development plan, and contravenes the provisions of the planning scheme.

In order to avoid prolonged argument about the merits of the contrary views, the college wishes to clarify the matter by seeking to amend the Development Plan and attain a planning permit so that the right to use the front garden at Nos 3 and 5 as a playground can be confirmed and the conditions of that use clearly stated in permit conditions.

The College advises that the reasons for seeking to formalise the use of the front garden at Nos 3 and 5 Rossfield Avenue result from requirements of the Human Services Department relating to the safety and segregation of different aged children at play.

It is not proposed to modify the approved buildings or fences at Nos 3 and 5 Rossfield Avenue except in order to comply with the rules and regulations of the Children Services act 1996 and Regulations 1998. It is proposed simply, that between the hours of 9.00am and 3.00pm, Monday to Friday, the front garden at Nos 3 and 5 Rossfield Avenue be able to be used for supervised play by children in the age group 18 months to 3-4 years.".

14. Mr Rantino contended a letter dated 12 November 2002 from the Responsible Authority was forwarded to representatives of MLC in response to a meeting held on 16 August 2002.

15. It would appear to the Tribunal that there is an issue that has been taking up considerable time between all the parties as evidenced in the correspondence between the parties or their representatives and that such a matter can be properly considered by the Tribunal under Section 149A PE Act.

16. The relevant part of the letter dated 12 November 2002 from the Responsible Authority to Daryl Jackson Architects for the purpose of this proceeding is contained in the third dot point as follows:

* The dot points in clause 1.0 of Schedule 1 to the Development Plan contain conditions and requirements for permits. In particular Council draws your attention to dot point 2 which states:

The facades and front gardens of Nos 3 and 5 Rossfield Avenue must be preserved as necessary in order to present a residential streetscape to Rossfield Avenue.

Council wishes to advise that, it was clearly the basis and intention of the design criteria incorporated into Schedule No.1 to the Development Plan Overlay for[the]school, that the front gardens would be preserved as necessary in order to present a residential streetscape to Rossfield Avenue and that any fencing along the Rossfield Avenue frontage was also required to be consistent with its character as a residential street.

It has never been Council's understanding that the area was to be used by the school for child play purposes at the time of gaining approval, during the discussions with neighbours or at the panel hearing. In fact to the contrary, the discussions were clear that this area was to be preserved in a 'residential' state.

It follows from the above that Council does not support the use of these front gardens for the purposes of either a permanent or temporary playground and is not prepared to amend the Development Plan to facilitate its use in the manner outlined. [Tribunal Underlining]

17. The basis for the present application appears to stem from correspondence and complaints made by Mr Collins to MLC and the above views expressed by the Responsible Authority regarding children playing in the front garden of Nos 3 and 5.

18. It was Mr Collins contention referred to by the Responsible Authority that at the time of discussions between MLC and the local residents regarding the Concept plan there was confirmation that the front area of Nos 3 and 5 would not be used as a play area and that there was an undertaking to this effect by the School. This was reflected in the "Concept Plan Sheet 2 of 2 Statement of Principles Governing Use and Development of the Site", forming part of Amendment L21, approved on 26 May 1997 in the Boroondara Planning Scheme at Clause 118-4.6. and expressed as "2. The facades and front garden of Nos 3 and 5 Rossfield Avenue to be preserved as necessary in order to present a residential streetscape to Rossfield Avenue."

19. This has now become dot point 2 in clause 1.0 Schedule 1 to the Development Plan Overlay in the current Boroondara Planing Scheme.

20. Mr Pitt submitted, Amendment L21 and clause 118-4.6 allowed the whole of the site to be used and developed generally in accordance with the Concept Plan, the development plans were required to only show use of buildings, and whilst playground areas are shown on the plan, this is because the location, layout and dimensions of all works was required.

21. Mr Rantino submitted the Amendment controlled the use and development, the whole of the site being an Education centre, where there was a requirement that different uses in different parts of the site be indicated. In this respect he indicated he referred to use in the sense of activities and the principles in the concept plan.

22. At the time of Amendment L21 both properties at Nos 3 and 5 were being used as residences and these two residences became part of the school complex. The Panel in relation to Amendment L21 does not make any comment with regard to the preservation of the front facades and gardens of Nos 3 and 5. The reference incorporated in the concept principles appears to be what was adopted by the Council in 1996. The issue of children playing in the front gardens does not appear to have been raised before the Panel. The panel does comment that "what is interesting in this regard is that submitters did not raise any objections to the general disposition of land uses or proposed buildings on the site other than concern at the interface between the car park and the residences at Nos 7 and 9 Rossfield Avenue. Indeed most submitters pointed out that they were not opposed to the concept plan as such".

23. The land which Nos. 3 and 5 form a part and have done so since Amendment L21 is used as an Education Centre. The Responsible Authority indicated "It is noted that no conditions are included on any planning permit issued for the site relating specifically to the use of the front setbacks of the properties at No's 3 & 5 Rossfield Avenue".

24. There are no proposals for buildings and works to be constructed in the front of the Nos 3 and 5. The use already exists. Children are part of the Education centre. The Tribunal can find nothing either in the development plans or the wording incorporated into the planning scheme that indicates children are not permitted to play in the area shown on the development plans as the front gardens of Nos 3 and 5.

25. Whilst Mr Rantino submitted the plans do show the areas that are to be used as playgrounds, it would appear these areas were required to be shown, as there was a requirement that development plans show "all buildings and works" as well as "the location, layout, dimensions and external surface treatment of all works...". Mr Pitt indicated that works were required to be carried out to establish such playgrounds. It is noted that there are other areas not specifically noted as playgrounds or as buildings on the plans which could be used as areas of play and the front gardens of Nos 3 and 5 fall into this category.

26. The recollections of Mr Collins may be correct in that there may have been some discussions between the school and local residents about children playing opposite the residential properties, but if there was any agreement or undertaking given by the school then this has not been either shown on the development plans or translated into the planning scheme as a prohibition on such activities as child play occurring in the front gardens of Nos 3 and 5. Nor does this issue appear to have been raised during the panel hearing certainly not to warrant any reference by the Panel or to have such a prohibition incorporated into the recommendations of the panel. The Responsible Authority has also made the additional observation that "It is noted that no conditions are included on any planning permit issued for the site relating specifically to the use of the front setbacks of the properties at No's 3 & 5 Rossfield Avenue".

27. What has clearly been incorporated into the planning scheme as part of Amendment L21 and later translated into the Development Overly Schedule 1 in the new format planning scheme was a requirement that the facades of Nos 3 and 5 be retained as well as the front gardens as necessary "to present a residential streetscape to Rossfield Avenue". Given that the two properties were originally residential dwellings and that opposite as well as in a large part of Rossfield Avenue there are a number of residential dwellings, it is understandable that there was a requirement to preserve the facade of the residential dwellings of Nos 3 and 5 so that the residential nature of the street could be retained when viewed from Rossfield Avenue, although the two residential buildings at Nos 3 and 5 are incorporated into and form part of the Education Centre.

28. Residential dwellings in Rossfield Avenue are set back from the street. Within the front setback of the residential dwellings is to be found well maintained gardens that include in various shapes, sizes and species trees, shrubs, lawns, fences, driveways and often cars parked in driveways, in other words typical front gardens found in residential areas.

29. The front of Nos 3 and 5 Rossfield present as having similar front gardens as found in front of the residential dwellings within the street. In this respect it is considered that the front gardens of Nos 3 and 5 preserve the residential streetscape to Rossfield Avenue.

30. There is nothing within the clause that indicates any particular activity is prevented within these areas such as children playing. Mr Collins considered that children could play in front of the residential dwellings in the street, but that it would be unusual for a large number of children to play in the front of the residences and with such regularity as is likely to occur in front of Nos 3 and 5. Whilst such activity may be unusual or simply not occur in this area as Mr Collins has indicated, there is nothing that would prevent this occurring and if such activity did occur it does not seem to me to offend the planning scheme requirements of preserving the front gardens or the facades as necessary in order to present a residential streetscape. Children playing in a front garden is not an activity that is inconsistent with the residential nature of a street.

31. As stated previously there is no proposal for the construction of any buildings or works in the form of for example play equipment in the front gardens. If such equipment was placed in the front gardens of Nos 3 and 5 it could be said that this was not inconsistent with the use of the land as an Education Centre as similarly it could be said the placement of play equipment in the front garden of the residential dwellings was not inconsistent with the use of the land as a residential dwelling. Merely because no one has chosen to place any play equipment in the front garden of their residential dwelling in Rossfield Avenue does not mean that they are prevented from so doing. The requirement is that the gardens be "preserved as necessary" in order to present a residential streetscape. In this respect I consider that the front gardens being preserved as necessary in order to present a residential streetscape would merely require these front gardens to presenting in a similar form as the other residential front gardens in Rossfield Avenue in that they have some trees, shrubs or other features one would expect in and are typical of a garden in front of a residential dwelling.

32. Although, as Mr Collins submitted, play equipment is more usually found in the rear gardens of residential dwellings, not front gardens, this is more often than not for other reasons usually practical reasons such as supervision and safety rather than inconsistency with the use of the land as a dwelling. It is more than likely given the strict supervision requirements required to ensure child safety in an Education centre that this gives in this instance more ability for the children to play in the front of the two dwellings.

33. I find it some what incredible that this issue has even been raised and that it has come to the point of the Tribunal having to make a declaration. I also find it somewhat ridiculous that there needs to be a declaration from the Tribunal that children are not prevented from playing in the front gardens of two properties that just happen to be part of an Education Centre or for that matter that it would ever be contemplated that children could be prevented from playing in the front garden of any property.

34. I will therefore make the declaration as requested.

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