Victorian Civil and Administrative Tribunal|2006-07-07

Mysore & Associates Pty Ltd v Monash CC [2006] VCAT 1346 (7 July 2006)

Section 77 Planing and Environment Act 1987 - Child Care Centre - traffic - car parking - noise - amenity

Qun Xu, Richard Warren, Alisdair M Fyfe, Kit Leong and Pauline Wong, Andrew & Christine Edis, Lisa Armstrong, Don Bruce, Myung Hyung, Andrew Perks, Young Kan & Inese Dzintra Tang, Scott Eddington, Patricia Irene Tonkin, K G Rowley

1

The application for review is allowed. The decision of the Responsible Authority dated 1 February 2006 is set aside. A permit is granted for the development and use of an eighty-four (84) place child care centre at 3-5 The Boulevard, Glen Waverley.

2

The Responsible Authority is directed pursuant to Section 85 (b) (ii) Planning and Environment Act 1987 to grant a permit for the development and use of an eighty-four (84) place child care centre at 3-5 The Boulevard, Glen Waverley subject to the following conditions:

1 Before the use and 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 but modified to show:

(a) The car park to be setback 7.6 metres from the front title boundary and a minimum of 20 car spaces to be constructed;

(b) The car park access way reduced to 6.4 metres wide with a commensurate increase in landscaping on the eastern boundary;

(d) The 1200mm wide path extended to the front boundary;

(e) The front fence to be of quality materials and finish (no chain wire);

(f) A notation that no shade or play structures will be permitted within the front setback playground area without the prior written consent of the responsible authority;

(g) The location of bin storage and drying area/s which are to be located and/or screened from public view;

(i) East elevation to include toilet door and window, and north elevation to include office window as per floor plans;

(j) A schedule of external materials and colours, including car parking area.

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 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 landscaping plan must be prepared by a landscape Architect or suitably qualified or experienced landscape designer. The plan must show:

(a) a survey (including botanical names) of all existing vegetation to be retained and/or removed;

(b) buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary;

(e) 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;

(f) provision of canopy trees (minimum two metres tall when planted)located throughout the site including the major open space areas of the development;

(h) The extent of any cut, fill embankments or retaining walls associated with the landscape treatment of the site.

(i) The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.

4 Before the use/occupation of the development starts or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

5 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.

6 Before the development starts, a site layout plan drawn to scale and dimensioned must be approved by the responsible authority. The plan must show a drainage scheme providing for the conveying of the stormwater to the nominated point of discharge. The nominated point of discharge is the south-east corner of the site where the entire site's stormwater drainage is to be collected and free drained to the Council pit in the road reserve to Council standards.

7 All on-site stormwater is to be collected from hard surface areas and must not be allowed to flow uncontrolled into adjoining properties. The on-site drainage system must prevent discharge from the driveway onto the footpath. Such a system may include either:

(a) a trench grate (175mm minimum width) located within the property; and/or

(b) shaping the driveway so that water is collected in a grated pit on the property; and/or

8 Before the use or occupation of the development starts, the area(s) 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;

(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;

to the satisfaction of the responsible authority. Car spaces, access lanes and driveways must be kept available for these purposes at all times.

9 The construction works associated with the permitted development must only be carried out during the following hours:

• Monday to Friday (inclusive) - 7am to 6pm;

• Saturday - 9am to 1pm;

• Saturday - 1pm to 5pm (Only activities associated with the erection of buildings. This does not include excavation or the use of heavy machinery)

Unless otherwise approved in writing by the responsible authority.

10 The use may operate only between the hours of 6.30am to 6.30pm Monday to Friday unless with the written consent of the responsible authority.

11 No service/delivery vehicles are permitted to arrive or depart before 7.00am and after 5.00pm Monday to Friday or on weekends without the prior written consent of the responsible authority.

12 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;

13 No form of public address system may be installed so as to be audible from outside the building/site.

14 Outdoor lighting must be designed, baffled and located to the satisfaction of the responsible authority to prevent any adverse effect on adjoining land.

15 The operator must make all best endeavours to ensure vehicles under the control of the operator or the operator's staff are not parked on the nearby roadway.

16 This permit will expire if one of the following circumstances applies:

• The development and use are not started within two years of the date of this permit;

• The development 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.

Mr S Wilmoth of counsel instructed by M D Motherwell

Mr T Pikusa of counsel instructed by McPherson & Kelley

1 This is an application for review of the decision of Monash City Council to refuse a permit for the use and development of land at 3 - 5 The Boulevard, Glen Waverley as a child care centre for eighty-four children.

2 The grounds of refusal include that the proposal is inconsistent with clause 22.09 (Non-Residential Use and Development in Residential Areas) in the Monash Planning Scheme; will not provide sufficient on site car parking; is not consistent with the character of the area; will have a detrimental effect on the amenity of the surrounding land and the impact of traffic accessing the site will be detrimental to the amenity of the area.

3 The subject land is located on the north side of The Boulevard approximately 200m to the west of Springvale Road. It is regular in shape has an overall area of 2,406m² with a frontage of 50.43m to The Boulevard (south) and a depth of 47.71m (north). The land has a fall of approximately 4m from west to east.

4 Mr Umbers described the site as containing a single storey building which is located on the western half of the site. This building was most recently used as a church by the Glen Waverley Christian Centre although this is believed to be several years ago. On the eastern half of the site is an open crushed rock car park accessed from The Boulevard at the eastern boundary. The northern part of the site is open and grassed with one large gum tree and a small galvanised iron storage shed in the northwest corner.

5 To the west of and adjoining the site is the rear well landscaped private open space areas of 1 The Boulevard and 12 and 14 Walter Street which each contain a single dwelling. To the east, 7 The Boulevard contains two single storey and one double storey attached dwellings. To the north the rear of the site abuts the rear private open space of 12 and 15 Neera Court each containing a single dwelling well setback from the common boundary. To the south, opposite the site is 2, 4, 6, 8 and 10 The Boulevard, each containing a single storey dwelling.

6 To the northwest of the site is a former local strip shopping centre now occupied by small office related businesses on the corner of Walter Street and Martin Place. Opposite this centre is the Tally Ho pre-school which operates 3 and 4 year old programs from 9.00am to 4.00pm, Monday to Friday.

7 The former church building is proposed to be retained with internal alterations and minor extensions to allow for its use as a Child Care Centre. The centre is to provide for eighty-four children, thirty-one 0-3 year olds and fifty-three 3 - 5 year olds. The centre is proposed to operate between the hours of 6.30am to 6.30pm Monday to Friday. A maximum of 9 staff are to be on the site at any one time.

8 The centre is to have two rooms and internal play areas for the thirty-one 0 - 3 year olds and one large room and internal play area for the fifty-three 3 - 5 year olds.; a kitchen; staff room and amenities; office; laundry; entry foyer directly accessible to the car park; storage and toilet facilities. Two external play areas are proposed one to the north with an area of 634m² and one to the west and south with an area of 217.09m².

9 16 car spaces are to be provided on the east side of the site. 8 spaces are for dropping off and collecting children and 8 are for staff. There is an area to the north of the car park which could provide for an additional 8 car spaces if required.

10 The subject land as is the surrounding land is located within the Residential 1 zone and subject to the Vegetation Protection Overlay under the Monash Planning Scheme. Under the zone provisions both the use and development of a Child Care Centre requires a permit.

11 Under the particular provisions of clause 52.06-1 a new use must not commence until the required number of car spaces has been provided. Under the planning scheme there is no specific car parking rate for a child care centre therefore the number of spaces provided must be to the satisfaction of the Responsible Authority. A policy[1]of the Responsible Authority specifies a car parking rate of 1 space per full time staff member, 1 space per 2 part time staff members and 1 space per 10 children.

12 As no vegetation is proposed to be removed from the site the provisions of the Vegetation Protection Overlay are not relevant in relation to this application.

13 One of the purposes of the Residential 1 zone is 'in appropriate locations to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs'. At clause 22.09 the establishment of such non-residential uses in residential areas is addressed. 'Council supports such uses where it can be demonstrated that the use meets the zone purpose, and the built form is compatible with the residential scale and character of the surrounding area'. This policy also indicates that 'the application of locational criteria is considered particularly important to ensure that there will be minimal impacts on residential amenity'.

14 Non-residential uses in residential areas are therefore considered to be appropriate provided the amenity of the neighbourhood is not impacted upon, the built form is respectful of the residential area and there is provision for adequate and well-located vehicle parking. The policy indicates such uses are discouraged in lower order residential streets and traffic generated by the use must be appropriate to the street and locality and not adversely affect the existing traffic pattern.

15 In response to this policy the permit applicant submits the site is in close proximity to a small activity centre, the site has a long history of non-residential use, it is replacing rather than creating a new non-residential use, The Boulevard is not a lower order street, perimeter landscaping can be provided on the site to create a buffer and improve the site, and there will be no impact on the amenity of the area as a result of noise or traffic.

16 The residential character of the area referred to in the planning scheme focuses on the type and form of residential dwellings found within the area and is not very helpful regarding non-residential uses. It is acknowledged the site has been occupied for a considerable time with the existing building and has been used as a non-residential use.

17 The building itself whilst reasonably large is single storey as are the majority of nearby residential dwellings. Apart from some minor extensions to the building it will remain in almost identical form as it currently presents to the street. It cannot therefore be said that the building does not conform to the neighbourhood character as it has been part of that neighbourhood character for some time.

18 To the eastern side of the site there currently exists an open area previously used as a car park. It is in this location that the proposed car park for the centre is to be located. This aspect of the property is not therefore going to change, although the car park will be more formally formed and landscaping is proposed around its perimeter.

19 The building on the western side of the site is setback 10 to 13m from the rear northern boundary. It is in this location that the area of 634m² is to be used for an external play area for children between the ages of 3 to 5 years. This is an extremely large area that can be used by the fifty-three children in this age group. A buffer of landscaping is proposed along the rear boundary which abuts the rear private open space of the two properties that have a frontage to Neera Court. Where this area abuts the rear private open space of 12 Walter Street to the west additional landscaping could also occur. There will therefore be a reasonable landscape screen between the rear of the properties and the subject site.

20 The other external play area for the 0 to 3 year olds is to be located partly to the west of the building and partly to the south in the south west corner of the site. This area is to be 217.09m² and mainly faces towards The Boulevard with part of its interface to the common boundary with the rear private open space of 1 The Boulevard. Landscaping can be provided along this common boundary providing a sufficient screen. As a result of the siting of this play area towards the front of the site on occasions children will be visible playing in the front setback. This cannot be considered as in any way detrimental to the neighbourhood.

21 It cannot be said that this site is located within the residential hinterland and to access such a site one is required to navigate a number of local streets, rather the subject site is located, albeit in a residential area, but only 200m from Springvale Road a major north south road within the municipality and adjoining municipalities. It is therefore well located in terms of convenient access from a major thoroughfare.

22 Springvale Road at the intersection with The Boulevard is a divided road access is therefore only available by way of a left turn in and left turn out at this intersection. The Boulevard is one of only three or four streets between High Street Road and Highbury Road that provides access onto Springvale Road.

23 Noise and traffic impacts appear to be the two major areas of concern expressed in relation to this proposal.

24 Firstly in relation to noise this could be generated by the number of children on the site and/or by the number of vehicles entering and leaving the site on a daily basis. In relation to noise generated by the children this is not considered to be likely to cause an unreasonable impact on the amenity of adjoining properties. The only time noise is likely to be evident from the children is when they are in the external play areas.

25 Although the children will utilise the play areas, particularly the older children, the period of time the children are in the external play area is not typically for the whole of the day but rather for a period in the morning and a period in the afternoon. The younger children being in the external play area usually for a shorter period of time than the older children. Given the hours of operation of the centre the periods of time for external play are likely to fall mid morning and mid afternoon.

26 Although the area was described as being quiet this is a residential area that is in close proximity to a major road, the background noise in the area is likely to incorporate some of this noise. The sound of children playing is not an unreasonable noise and is a sound that can be expected to be heard in a residential area. The sound generated by a group of children is not likely to be at such a level during the day to be considered to be unreasonable even in this residential area

27 There is likely to be some noise generated by vehicles entering and leaving the site. Given the hours of operation are confined to 6.30am to 6.30pm it is not considered that the noise from vehicles will have an unreasonable impact on the amenity of the area. Certainly vehicles coming to the centre around 6.30am may be heard by residents in the adjoining dwellings to the east but the number of vehicles at this time is likely to be very low with the peak times for a centre considered to be between 7.30am and 9.15am. It is not therefore considered that the noise generated by a few vehicles accessing the site prior to 7.30am will result in an impact on amenity in the form of sleep disturbance to the adjoining properties with a larger number of vehicles expected in the 7.30am to 9.15am period which will coincide with the peak period for commuter traffic.

28 Apart from the impact of noise from traffic generated by the use it was submitted that the increase in the number of vehicles in The Boulevard will have a significant impact on the amenity of the area. The assessment of the expected increase in the number of vehicles was questioned. Mr O'Brien estimated the daily traffic volume in The Boulevard to be 300 vehicle movements per day with a peak hourly flow of 30 vehicle movements. I accept this estimate taking into account The Boulevard provides a left turn into Springvale Road, a primary arterial road where it is expected that commuters from the residential hinterland would move towards this main road.

29 Mr O'Brien estimated, based on surveys conducted in relation to other centres that a total of 125 vehicles are expected to enter the site and 125 exit the site over the period of the day. This results in an estimated 250 vehicle movements generated by the use per day. He considered 60 vehicles are expected to deliver children to the centre over at least a three hour period to 10am. He considered the morning peak time would be between 7.30am to 8.30 am generally coinciding with the commuter peak with 25 vehicles including some driven by staff arriving in this period. As a result he was of the view the peak hour traffic flow in The Boulevard would be increased by around 60 vehicle movements per hour in the morning. Based on these estimates and Mr O'Brien's estimate of the existing 30 vehicle movements at the peak morning period the centre would result in 90 vehicle movements in The Boulevard during the peak morning period.

30 The Boulevard is a 7m wide street which provides access to and from Springvale Road by left out and left in turns. Under clause 56 Monash Planning Scheme The Boulevard would fall within the description of an access street which is expected to carry between 1000 to 2000 vehicles per day. I accept that The Boulevard currently has around 300 vehicle movements per day and the traffic generated by the centre will increase this number. I however conclude that this increase will be well within the limitations of the street.

31 I acknowledge that certainly for an initial period the residents directly opposite the centre will notice the increase in traffic but merely because there is an increase does not result in an impact upon amenity.

32 I am unable to conclude that there will be a safety issue in relation to vehicles turning from The Boulevard into Springvale Road or turning from Springvale Road into The Boulevard. Despite what was described as a small rise in Springvale Road when coming from the south I consider there are sufficient sight lines to allow for vehicles to do a left turn into or out of The Boulevard with gaps being created in the traffic even during the peak period.

33 Although reference was made to a number of accidents near The Ridge I am unable to conclude that vehicles entering or leaving the centre will cause safety issues or conflict with traffic entering or exiting from The Ridge opposite the centre. All road users must abide by road laws and take reasonable care entering and exiting roads. Nor am I able to conclude that there will be any conflict arising due to the number of learner drivers using this road network.

34 The plans show the provision of 16 car spaces on site. The existing crossover on the eastern boundary is to be retained but widened to allow for two way vehicle movement. Mr O'Brien submitted that based on recent surveys at several other centres a peak demand for car parking could be 18 and he therefore recommended that the number of car spaces be increased to 18.

35 I noted in the description of the proposal that an additional 8 car spaces where shown as being able to be provided at a future time on the site. I see no reason why at least an additional 4 car spaces could be provided at this time resulting in the provision of 20 on site car spaces that should be an adequate number to provide for the centre.

36 I was advised that at least 10 staff would work at the centre although I was not given a break down of the number of full time and part time staff. I was directed to the requirements of the Children's' Services Regulations 1998 which indicates the minimum number of staff required for different ages of children. As a result of these requirements it was submitted at least 19 car spaces should be provided on site. As I have concluded there is adequate space for the provision of 20 car spaces that could be accommodated at present, I consider this adequately addresses the number of car spaces to be provided and would exceed even the council's requirements.

37 There did not appear to be a great demand for on street parking in the vicinity of the site. The width of The Boulevard enables vehicles to park on either side of the street and still allow for a one way flow of traffic. Given the provision of an additional 4 car spaces on site I do not expect that on street parking will be an issue however I note that there are no restrictions to on street parking in The Boulevard.

38 Although the use is referred to as a commercial use I consider that the provision of a Child Care Centre in a residential area is not inappropriate provided consideration is given to impacts on the surrounding neighbourhood. Whilst I was not taken to any particular statistics revealing that there is a specific need in this area for a Child Care Centre I would adopt the view that in a metropolitan residential area such as the municipality of Monash there is always a need for Child Care Centres the issue is where to locate them.

39 I consider that this site is an appropriate location for a Child Care Centre given its close proximity to Springvale Road, its former use as a church another non-residential use that can be considered appropriate in a residential area. I am unable to conclude that as a result of noise or traffic there will be any impact on the amenity of the neighbourhood. The surrounding residents will notice a change but the road network can accommodate the increase in traffic, this increase will be to a certain extent staggered over the day and will not impact on the residents early in the morning, at night or at weekends when residents expect a quieter neighbourhood. References to the likely devaluation of property values are not considered valid planning arguments.

40 Draft permit conditions were presented for consideration by the Responsible Authority. I have considered the submissions made by the parties in relation to the conditions and where I have considered appropriate I have retained added, amended or deleted conditions.

41 For the above reasons the application for review is allowed. A permit is granted for the use and development of an eighty-four place Child Care Centre at 3-5 The Boulevard, Glen Waverly subject to conditions.

[1] 'A Guide to Car Parking in Monash, City of Monash, (6 February 2001' or as amended) this document is a reference document at clause 22.09-5 Monash Planning Scheme.

Planing and Environment Act 1987

Mysore & Associates Pty Ltd v Monash CC [2006] VCAT 1346

At a glance

Court

Decision date

Source

Judgment (52 paragraphs)

Mysore & Associates Pty Ltd v Monash CC [2006] VCAT 1346 (7 July 2006)

Parties

Legislation Cited (1)