[2005] VCAT 1133

In permit application no. M/2004/623, the decision of the Responsible Authority is affirmed. A permit is not granted and no permit is to be issued.

Mr G Gattini of Gattini and Partners. Evidence was called from Mr R Jude, traffic engineer, and Mr J Martens-Mullaly, arborist.

Mrs M White, Mr G White, Mr J Garmston and Mrs B Earney in person.

1 This is an Application under Section 77 of the Planning and Environment Act 1987 brought by the Melbourne Anglican Trust Corporation seeking review of a decision made by the Maroondah City Council ("the Council") to refuse to grant a permit in permit application no. M/2004/623. A Notice of Refusal was issued on 12 November 2004. An Application was lodged on 24 November 2004.

2 I record the following procedural matters arising during the Hearing:

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At the commencement of the Hearing, Mr Gattini sought leave to substitute the plans submitted with the permit application with plans circulated by letter dated 22 April 2005. There being no objection, I granted leave to substitute the plans in accordance with the provisions of the Victorian Civil and Administrative Tribunal Act 1998.

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Mr Garmston tendered a written submission from D & M Azad.

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During the Hearing, Mr Gattini sought leave to amend the name of the permit applicant and Applicant for Review from "Melbourne Anglican Trust Corporation" to "National Child Care Centres Pty Ltd". There being no objection, I granted leave to make the requested amendments to the documentation pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998.

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At the end of the Hearing, I granted leave for further submissions to be filed in relation to the revisions to the car parking arrangements proposed by Mr Gattini during the Hearing. I also sought a copy of the current permit for the church from the Council. All further material was required to be filed and served by 30 May 2005.

3 The review site is part of a larger land holding of the Melbourne Anglican Trust Corporation. It is located on the west side of Bemboka Road. A two lot subdivision approved in 2000 created a front lot with an area of some 3,591 square metres and an abuttal to Bemboka Road of 40.8 metres. That is the subject land in this Application. A second lot of 4,503 square metres was created to the west of the front lot and relies for access on a 6 metre wide carriageway easement that extends along the northern boundary of the subject land. There are no permit applications relating to that lot or permits issued for its use/development. The review site is occupied by a church with parking for 20 spaces abutting the street[1] and an un-used dwelling to its rear. The car park is behind a hedge with access via a 3 metre wide crossover from the south and the carriageway to the north. Existing trees on the subject land include a large eucalypt, several liquidambars plus native and exotic species. The site is not heavily vegetated.

4 Surrounding properties comprise dwellings fronting Bemboka Road and Lyric Court. No. 25 Bemboka Road abuts the whole northern boundary of the review site while the southern boundary of the subject land is shared with five residential properties. New development is underway to the west of the rear vacant lot. Bemboka Road serves as a collector road with traffic control devices including a roundabout at the Plymouth Road intersection. That intersection is programmed for upgrading later this year.

5 The Applicant seeks approval to use and develop the review site for a 90 place child care centre for children to 5 years in age. The centre would comprise playgrounds to the north and west of the land with the building being single storey and cut into the southern portion of the site. The setback from the southern boundary would be 5 metres with a 1.2 metre high retaining wall at a setback of 3 metres from that boundary. To the north, a car park with five car spaces is proposed for drop-off/pick-up with an additional turning bay. An acoustic fence would be sited to the south of that area and along the southern edge of the carriageway easement further west of those car spaces. The spaces would be accessed by the carriageway easement or the church car park. Other parking would be available in the church car park with the southern crossover proposed to be widened to 5 metres. The church car park would be reduced to 19 spaces to accommodate this crossover change. Pedestrian ramps would be provided from the parking areas to the main entry at the building's south-east.

6 Hours of operation are proposed from 6.30am to 6.30pm Monday to Friday with no weekend use by the operator or church. A maximum of 11 staff would be required. Information provided to the Council includes a proposed business identification sign measuring 1.3 metres in width and 1.5 metres in height. The location of the proposed sign is not identified.

7 The proposal requires the removal of four trees and seeks to retain trees #6, 7 and 8 (adopting the tree numbers set out in the arborist's statement of evidence). A draft landscape plan was tendered at the Hearing showing the planting of additional canopy trees.

8 During the course of the Hearing, a number of changes were recommended or proposed to the plans by Mr Gattini. They have been taken into account in reaching a decision and include:

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Conversion of the five pick-up/drop-off spaces to staff parking with pick-up/drop-off instead from the church car park.

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Southern crossover retained at 3 metres in width with 20 spaces in the car park. The southern crossover would be entry only. [I note that the draft landscape plan deletes a car space adjacent to a proposed ramp].

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Despite the setbacks being modified in the substituted plans specifically to retain the eucalypt and liquidambar (trees #1 and #5 in the arborist's statement of evidence) their removal is requested based on the arborist's evidence as to their condition and health.

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Use of brick to the southern and western elevations of the building.

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Provision of an acoustic fence in line with the western elevation of the building then extending along the southern boundary adjacent to the play area/sand pit. Addition of trellis to the fence along the northern boundary ie. the common boundary with No. 25 Bemboka Road.

9 The following provisions of the Maroondah Planning Scheme ("the Scheme") are most relevant to this proposal:

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The subject site is zoned Residential 1 where a permit is required to use and develop the land for the purpose of a child care centre. Decision guidelines are set out in Clause 32.01.

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A Significant Landscape Overlay (Schedule 4 Maroondah Canopy Tree Protection Area - Inside Urban Growth Boundary) applies to the land. The objectives and decision guidelines of Clause 42.03 are relevant in addition to the matters set out in the Schedule. It was agreed at the Hearing that the removal of four trees as proposed requires a permit given their height and size. A permit is not required for buildings and words.

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Car parking and loading provisions are at Clauses 52.06 and 52.07.

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The policies and provisions of Clauses 11, 14, 15.05, 17.02, 18.02, 19.03, 21 (Municipal Strategic Statement), 22.02 (Canopy Vegetation), 22.03 (Residential Neighbourhood Character), 22.06 (Retail and Commercial Development), 52.05 (Signage), 52.34 and 65 (general decision guidelines). Melbourne 2030 is relevant as an adopted policy to which the Tribunal must have regard.

10 I received submissions from all parties and I advised those present at the commencement of the Hearing that I had inspected the subject site and locality prior to the Hearing. Having considered the State and Local Planning Policy Frameworks, the purpose of the Residential 1 Zone, the decision guidelines of the relevant Clauses of the Scheme and the submissions of the parties, I have decided to affirm the decision of the Responsible Authority. My reasons are set out below. I do not recite all of the submissions although I do refer to some of the main points below.

11 It was contended by the Council and some Respondent Objectors that the review site is not suitable for a child care centre. Some of the reasons advanced included that the use is a commercial activity that is not suitable in this area, the location next to a church is not appropriate, the existence of the church does not provide justification for the clustering of non-residential uses, there is an over-supply of child care places with vacancies in existing facilities and there is no need for the facility.

12 I have considered these and related submissions mindful of the purpose of the Residential 1 Zone and the policies of the Scheme including Clause 22.06. A purpose of the Residential 1 Zone is to provide "in appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs". Child care facilities in residential environments are common-place and I do not find the review site to be particularly problematic as a location for a child care centre because it is not abutting or within a business or commercial area. The use may be commercial in one sense but it can be distinguished from traditional retailing and commerce. Moreover, this type of use must be accessible to the community it is intended to serve and co-location with the church has the potential for some efficiencies rather than being a fatal flaw. The location on a road serving a collector function has the benefit of limiting traffic intrusion into otherwise quiet residential areas while avoiding some issues that might arise if the use was on a major road.

13 On this latter point, traffic and parking are important considerations as to the suitability of a site as are issues relating to built form and off-site impacts with a development proposal. They are matters I return to later.

14 Doubts about the need for the proposed centre or suggestions of an over-supply of facilities are not arguments upon which the proposal fails. There are many cases where the Tribunal has considered these contentions. In short, the need for a facility, particularly where there are significant community benefits to be gained, may weigh in favour of the grant of a permit and in some circumstances may outweigh amenity considerations[2]. That is, a demonstrated need for a facility or use may be a relevant factor but lack of a need will rarely, if ever, be a ground for refusing to grant a permit[3]. Thus, the letters tendered by Mrs White from other child care centres and related submissions do not provide cause to reject the proposal.

15 In summary, I find no reason to reject the review site as a suitable location for a child care centre as a matter of principle.

16 Before turning to the specific issues of built form and site layout, I refer to the matter of on-site tree removal. As sought to be modified at the Hearing, the proposal requires the removal of four trees with most concern raised by local residents and Council in relation to a large eucalypt and liquidambar (trees #1 and 5 in the arborist's statement of evidence). The former is prominent and readily visible from adjacent properties.

17 The provisions of the Significant Landscape Overlay and applicable policies such as Clause 21 and 22.01, strongly emphasise the retention of existing canopy trees. That is within a strategic context where the quality of the natural environment forms a significant theme in the vision for Maroondah set out at Clause 21. There is a desire to retain the existing significant canopy vegetation as an asset of the municipality and add to it.

18 In principle, the retention of the two trees is desirable and the substituted plans provide for that. However, the uncontested evidence of Mr Martens- Mullaly was that the eucalypt has an untreatable fungal infection that has seen the tree commence a process of decline. He said that the liquidambar had been damaged at a previous time (possibly when the church was built) and that tree is also in decline. In the absence of evidence to the contrary I find that the removal of these two trees would be acceptable provided significant new canopy planting could be introduced. Based on the draft landscape plan, there is good scope to achieve a much higher level of canopy planting than exists and thereby meet the Overlay's objectives.

19 There were some concerns raised by the Council and Respondent Objectors that the proposed building style and form is not appropriate and that insufficient setbacks would be achieved to provide for landscaping. The mass of the building was also criticised. After review, I do not think the Application fails on any of these points for reasons I refer to next.

20 The existing church is larger than surrounding dwellings and the proposed development would add to the built elements on the land. However, the proposed structure is single storey albeit large in its footprint. As a result of the proposed cut to the south of the site, the building would not appear elevated and it would not be a prominent element to the streetscape or in the neighbourhood even though the site itself is quite elevated. The substituted plans revise the roof form to break up that element and the inclusion of brick to the external materials may assist with the integration of the facility with its environs although I do not think that material is essential.

21 While the development involving a 90 place child care centre must be larger than the average dwelling, I am persuaded that the physical form of the development is also acceptable in principle. The proposed setback to the southern boundary of 5 metres would allow for a 3 metre wide planting bed above the retaining wall that would be 2 metres from the southern façade of the building. That area could be adequately landscaped and when considered together with the single storey form of the proposed facility a reasonable spacing would be achieved.

22 However, there are issues arising in relation to the layout of the development that give rise to concerns. The entry is sited to the south-east corner of the building, close to adjacent dwellings and somewhat masked behind the church. The location might be the closest point to the church car park but it requires quite lengthy ramps to access the front door and it would bring customers close to the southern boundary which is a sensitive residential abuttal. I find that this aspect of the development requires review. If the Applicant had sought to pursue the pick-up/drop-off spaces in the location shown on the substituted plans I would also have had concerns about the location of those five spaces and a turnaround bay given that the carriageway provides what I understand to be the only access and egress point for the 0.45 hectare lot to the west of the subject land. The turning bay could be used on occasion as a sixth car space and vehicle movement at this point has the potential to be congested and complicated in a location that may have to serve as the only access point for a large development of some unknown type and scale to the west. This sets up a conflict point in the long term that should be avoided.

23 In addition, at the Hearing I raised questions about some quite detailed matters such as arrangements for loading and deliveries. I expect these can be dealt with appropriately but additional information would be desirable.

24 The first matter upon which I comment under this heading is the extent of activity on the subject land that would result if a child care centre was approved. At the core of some concerns was that the church already operates on the land with some daytime and evening activities in addition to regular services. At times this seems quite busy but it is fair to say that quite often there are no activities taking place. Mr & Mrs White were concerned about a scaling-up of non-residential use which would see the child care facility operational during the week and church activities at weekends. On this matter, it is relevant that the child care centre would only operate on weekdays until 6.30pm with no later weekday use and no weekend use either by the operator or by the church. Being a daytime weekday activity I am not persuaded that the use should be rejected because of the intensification of activities that would result, provided that off-site impacts are kept to a reasonable level and if parking can be dealt with.

25 Adjacent residents raised a range of concerns in relation to a loss of privacy with overlooking from the centre's verandah and play equipment, noise from babies and children particularly in the play areas, car noise in association with the carriageway easement, impact on adjacent vegetation and impacts of signage. Of these issues, the potential for noise and impact on vegetation on the lot to the north are the most significant.

26 The noise from cars and play areas has the potential to be intrusive particularly the parking area to the north of the child care centre (which may also have issues with headlights from cars given the relatively low fence along the northern site boundary). I do not delve into a discussion on this point as the proposal for an acoustic fencing to the north of the play area and south of the (revised) staff parking area would significantly assist presuming that it is designed to accord with the requirements of State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1. The same provisions would apply to mechanical plant and the like. Noise to the south would also be limited by an acoustic fence designed to an appropriate standard. I note Mrs Earney's submission that she would experience noise in her dwelling and rear garden that would be particularly stressful given her medical condition. While I appreciate that her concerns are genuinely held, the walls of the building would be below fence height opposite her property and the noise from the service areas would be different to the play areas that would be to the north and west of the building. Nonetheless, service areas may produce noise and it would be desirable to ensure that the development complies with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 along all of its boundaries. Subject to the findings of an acoustic engineer, that may require modifications to the existing fence or a new acoustic fence.

27 There is no potential for unreasonable overlooking or overshadowing to the properties to the south given the position of the proposed building relative to the landform and fence. The potential for overlooking to the property to the north at No. 25 Bemboka Road would be confined to users of the car spaces (at a distance of 6 metres over the carriageway), from the verandah (at a distance of 12+ metres) and children on equipment. With a trellis addition to the fence or a higher fence this concern could be addressed.

28 Based on the evidence of Mr Martens-Mullaly, vegetation on the land to the north of the review site has the potential to be impacted by works to the carriageway easement. Appropriate investigations by an arborist may ensure that the larger tree #12 can be protected through specifically designed pavement construction although tree #11 seems more likely to be adversely affected. There is insufficient evidence in relation to "tree group 1" but it appears that it could also be protected.

29 The problem in relation to tree #11 is that it is suggested by Mr Martens-Mullaly that the carriageway needs to be altered to accommodate the tree preservation zone and root plate radius. That would have the effect of reducing the width of the carriageway to less than 6 metres unless the play area to the north of the child care centre was modified by re-positioning a section of the fenceline southwards. This is problematic in the context of potentially impacting on the future development of the vacant lot to the west of the subject land.

30 Signage associated with a child care centre could be designed and sited to avoid unreasonable impacts on an adjacent resident.

31 One of the main issues in this case is the adequacy of car parking to service the proposed development and existing church. Submissions on this point were contested by the Applicant through the evidence of Mr Jude. Mr Jude's evidence was prepared on the basis of the substituted plans and he dealt orally with the proposed revision to the parking arrangements which were suggested to him by the Applicant/Applicant's representative and he said he supported. The changes would not alter the parking assessment made by Mr Jude in terms of numbers of required spaces or peak demands.

32 On the evidence before me, the proposed use would have a peak period of 8.30am - 9.30am and 4.30pm - 5.30pm. The demand would range from 9-11 spaces at these times. The former time would overlap with a regular mothers' group that uses the church. Mr Jude's evidence relied on a demand for 10 spaces noting that when the group is full then 15 spaces might be generated after 9.30am. His survey showed 50-60% of attendees arriving at the group before 9.30am and it is in issue between the parties as to how frequently the group meets (fortnightly or more frequently).

33 There is some information as to other activities held at the church on weekdays, with a flyer distributed by the church tendered by Mrs White referring to a monthly cottage group as well as noting the mothers' group at 9.15am during school terms as being very popular.

34 The relevance of this is that there are occasions when the use of the church would coincide with the peak period for the child care centre. The car park would work on a "first come first served" basis so that attendees of the mothers' group (including children in a playgroup and helpers) or parents/carers to the child care centre would be obliged to park on-street if all car spaces were occupied. The outcome based on Mr Jude's evidence is a need for 4-6 car spaces on-street although the basis of this was questioned by some Respondent Objectors given that the survey day was said to be a time when there were not as many cars in the car park for the mothers' group than usually is the case.

35 Even though the mothers' group may seem infrequent, there is the potential for the church to attract additional activities during the day and the shared use of the car park with the child care centre potentially forces more on-street car parking. I have no issue with the sharing of facilities as it would be inefficient to provide large areas of car parking that are rarely used, but there remains a basic need to ensure parking is adequate for the activities occurring or likely to occur on the land in accordance with the objectives of Clause 52.06 and 18.02.

36 I have several significant concerns in relation to the proposed parking arrangements. First is that child care centres usually have dedicated pick-up and drop-off areas, whereas the proposal as modified at the Hearing does not seek to dedicate spaces for this activity. A potential problem of setting aside a dedicated area in the car park is that the church may no longer meet its obligations or needs. Second is that I have a related concern as to how the operations of the church and child care centre would be managed in a practical sense. Agreements may well be possible between the respective managing bodies to address times when activities overlap but that is currently uncertain. Third is the extent to which parking is forced on-street. Bemboka Road is conceded by all parties to be very busy at times and I have some concern about adding on-street parking into a setting where queuing back past the site from the Plymouth Road roundabout is said in Mr Jude's evidence to occur. Fourth is that there is no one-way system for the car park so that a car entering from the north end and travelling south toward the closest point to the child care centre entry would have to reverse out if there was no space available to park. There is no turning bay so that if one was to meet another car entering from the south, a driver would be required to reverse northwards towards the carriageway easement being the full width of the car park to enable an exit from the church car park. The existing hedge limits visibility to make an assessment from the street as to which entry to use and what parking is vacant.

37 In summary, I have not been persuaded that there is sufficient parking proposed on-site to service both the church and child care centre or that the location and layout of parking facilities is (using the words set out in the objectives of Clause 52.06) easy, efficient and safe.

38 A further concern raised by those opposing the Application was that the proposal would result in an increase on traffic using Bemboka Road. The evidence given by Mr Jude sought to challenge these submissions. The proposal would increase traffic using the street network in a situation where there is congestion at school and commuter times. Based on Mr Jude's evidence, queues past the site occur between 8.15am and 8.45am, correlating in part with the projected peak period for the child care centre. Planned improvements to the Plymouth Road roundabout would not significantly reduce traffic queues in Bemboka Road based on Mr Jude's evidence.

39 Any development of the review site would be expected to have some increase in traffic and the problem here is that the school peak, the child care centre use and some church use would all overlap. The first two categories of activity would occur daily during school terms. I am not persuaded that the proposal can be rejected simply because it would add some traffic into this area but I have already expressed concern about the undesirable situation of insufficient on-site parking forcing that activity on-street (particularly pick-up and drop-off) even in the context of the current level of use by the mothers' group.

40 Some issues were raised about the adequacy of sightlines for residents departing their properties if cars were parked on-street. Mr Jude's evidence was this should not be problematic although I expect that it would be desirable for some marking of on-street spaces close to the crossovers into the subject land to ensure that adequate sightlines are available.

41 A range of other matters were raised in submissions, including that the proposal would affect property values, that the cars associated with the proposal would bring pollution and affect nearby residents with health conditions, and that the presence of the building would add or bring problems of youths loitering and anti-social behaviour.

42 I do not go to any of these matters in detail suffice to say that these and other matters raised in opposition to the proposal that I have not addressed above do not provide any basis for rejection of the Application for Review.

43 For the above reasons, I will affirm the decision made by the Responsible Authority. The review site is suitable for a child care centre however, the layout of the facility and arrangements for parking raise particular concerns that render the proposal unacceptable having regard to the policies and decision guidelines of the Maroondah Planning Scheme. A revised proposal utilising more of the vacant land available or of a reduced scale could be acceptable. I also consider that the some of the logistical matters associated with the shared use of facilities require attention.

[1] I refer to this as the "church car park" for ease.

[2] Church of England Trusts Corp for the Diocese of Melbourne v City of Brighton (1983) 1 PABR 332 at 336 and more recently in Verraty Pty Ltd, Sunbury Pty Ltd and Norsan Pty Ltd [2005] VCAT 238.

[3] Shell Company of Australia Pty Ltd and Ors v City of Frankston and Anor 8 APAD 127 at 135.