Dominic Scally, solicitor of the firm of Best Hooper, solicitors.

He presented written and oral submissions and called three expert witnesses, who each gave oral evidence and who each adopted a written report. They were John Patrick, landscape architect; Damien Isles, town planner and Kate Partenio, traffic engineer

Mr P Chiappi, barrister, appeared on the instructions of Herbert Geer, solicitors for the following respondent objectors, namely Norman Weiss, David Mond, Mark Fleiszig, Andrew Sorrell, Eva Sorrell, Eric Upton, Jan Upton, John Frederick, Denise Frederick, Kevin Slomoi, Suzanne Slomoi, Molly Kasriel, Ashleigh Want and Barbara Want. David Mond, who was not present in person on the first two days of hearing, was present on the third day when, by leave, he presented elaborate written submissions in addition to what has been previously presented on behalf of himself and others.

He presented written and oral submissions and called two expert witnesses who gave oral evidence and adopted written reports. They were Jonathan Chapman, town planner and Henry Turnbull, traffic engineer.

Mr Lesley M Schwartz, solicitor, appeared in person for himself and for Lana Schwartz.

Mr Nechama Bendet and Barry Bendet appeared in person. Each made oral submissions.

Though not appearing on the Tribunal list of parties, Mr Loren was given leave to make a submission.

Various, photographs and other documents were tended. The documents and evidence in documentary form have been retained on the file of the Tribunal.

Application under s 77 of the Planning and Environment Act 1987 for review of a decision of the responsible authority to refuse to grant a permit.

To develop and use the land for a 120 place child care centre.

Residential 1 Zone adjacent to a Road Zone Category 1 (Glen Eira Road)

Under the Residential 1 Zone provisions in Clause 32.01-1 of the Glen Eira Planning Scheme permission is required to use the land for a child care centre and further permission is required to construct and carry out buildings and works for that use with carparking to be to the satisfaction of the responsible authority.

Lots 1 and 2 on Plan of Subdivision No. 050105 being the land in Certificates of Title Volume 4241 Folio 340 and Folio 8266 Folio 103

Rectangle of land (save for a splay corner) on the north west corner of the intersection of Glen Eira Road with Morrice Street, having a frontage of 24.99 metres to the north side of Glen Eira Road, a side abutment of 49.41 metres to the west side of Morrice Street and an area of 1230 metres.

The name of the permit applicant and applicant for review, where originally given as "Yuyu Wang - Perkins Architects Pty Ltd" was amended by consent to appear as "Perkins Architects Pty Ltd".

1. This case concerns a proposal for the development and use of land for a child care centre to accommodate 120 children.
2. Notice was given of the proposal and objections were received.
3. Planning officers of the responsible authority referred the proposal to the Roads Corporation (which trades as VicRoads) and to various internal departments of the council. All referrals, internal and external, have ultimately resulted in the various referees approving of the proposal (with or without imposition of conditions), or at least their not opposing it.
4. Planning officers of the responsible authority prepared a report on the proposal with recommendations. The recommendation was that planning permission should be granted. Although it is probably impossible for any proposal for any perplexity to be perfect from every point of view, it is fair to say that the professional planners of the responsible authority found the proposal to be a good one. The report found little or nothing, and certainly nothing of substance that could not be corrected with conditions, that would weigh against granting approval in this case.
5. Nevertheless, the responsible authority determined to refuse to grant a permit. It maintains that refusal supported by the various objectors who appeared or who were represented.
6. This case is an application by the applicant company, Perkins Architects Pty Ltd (the company) for a review of that refusal by the responsible authority.

1. The site is a rectangle of land (save for a splay corner) on the north west corner of the intersection of Morrice Street with Glen Eira Road, Caulfield North.
2. The intersection between those two thoroughfares is a "T" intersection. Glen Eira Road is a main arterial road which runs east to west. It is in a Road Zone Category 1 under the Glen Eira planning scheme. That means that the Roads Corporation is a referral authority in respect of any new vehicle crossing onto Glen Eira Road, or any modification of any existing such crossing.
3. Morrice Street runs north from Glen Eira Road.
4. The review site is within a Residential 1 Zone on the north side of Glen Eira Road. That Residential 1 Zone stretches to the east and west along the northern side of Glen Eira Road, and north to cover all land within relevant proximity on the north side of that road.
5. Somerset Street, like Morrice Street, is a local access street but it runs south from a "T" intersection with Glen Eira Road. It is located opposite the centre of the frontage of the review site to Glen Eira Road. That means that it is somewhat offset to the west from Morrice Street.
6. On the south side of Glen Eira Road between Somerset Street and running west to Orrong Road there is a Business 1 Zone containing businesses that offer a variety of goods and services.
7. Apart from that strip of Business 1 Zone land, which extends south from Glen Eira Road to the extend of the depth of the properties that actually front the street, the land on the south side of Glen Eira Road is also within a Residential 1 zonings.
8. That is the zoning in relation to the planning scheme but Glen Eira has some local policy provisions creating some differentiation amongst areas in Residential 1 Zonings. This land is in a so-called minimal change area under those provisions.
9. The site itself is a substantial one made up of two allotments. The southern most is No. 249 Glen Eira Road on the actual corner of Glen Eira Road with Morrice Street. The second one is No. 1A Morrice Street adjoining its northern side and fronting Morrice Street. Together they have a frontage of 24.99 metres to the north side of Glen Eira Road and a side abutment of 49.41 metres to the west side of Morrice Street. The total area is 1239 square metres. It is proposed to demolish an existing house on 1A Morrice Street and to construct a new double storey purpose built child care centre on the site as a whole.
10. There are various health, child care and educational establishments in the locality, including in the Residential 1 zoning, generally along Glen Eira Road. On the south side, on either corner of Somerset Street with Glen Eira Road there is a maternal health care centre and a crèche. A further crèche is further along on the south side of Glen Eira Road with an eye clinic on the south-eastern corner of Garden Street. Caulfield Grammar School is to the west and Shelford Girls School to the east, each on the northern side of Glen Eira Road. There are also a travel clinic, a synagogue and a disabled child's facility further to the east on the north side of Glen Eira Road.
11. The majority of the properties in the surrounding Residential 1 Zone land are used for residential purposes in a variety of styles of residential building. Two storey buildings of modern style and materials are quite common. There is a local shopping centre in the Residential Zone already described.
12. There is good public transport in the form of bus services along Glen Eira Road and Orrong Road.
13. The proposed new building would be architect designed to have a total floor area of approximately 820 square metres including verandas and with seven playrooms. The maximum building height would be 8.4 metres with the building set back at 7.35 metres from Glen Eira Road and 3.8 metres from Morrice Street.
14. The ground and first floor levels would be above a basement carpark to contain 27 car parking spaces. That would enable 11 staff spaces and 16 for parents or visitors. Some would be tandem car spaces and those would be used by staff.
15. The establishment would have up to 120 children with up to 22 full time staff at any one time with three part time staff also employed. Hours of opening would be 7 am to 6 pm Monday to Friday. There would be outdoor playground areas to the front, sides and rear of the ground floor levels with further play areas at first floor level. These would be protected by acoustic barriers and ground level fencing to Glen Eira Road and Morrice Street.
16. It has to be appreciated that Glen Eira Road is a busy arterial road that carries substantial volumes of traffic, particularly at peak times but also at many other times during the day and night. This traffic inevitably generates a degree of traffic noise greater than would be expected in what might be called the residential hinterland. Residential properties fronting such roads have diminished residential amenity, because of traffic noise and movement, compared to other properties deeper into a residential zone. For this reason such main road properties are, that extent, less desirable from a residential point of view. That is part of the reason why none residential uses are more common upon such roads. The other reason is probably the accessibility in such locations.
17. Pedestrian access to the offices, reception area and lifts is near the south-eastern corner of the proposed building.
18. Vehicle access is via a crossing and ramp down to the basement located a short distance around the corner into Morrice Street. Located there it avoids a crossing off the main road, an option that the Roads Corporation refuses to countenance, without intruding more than a few metres into residential Morrice Street.
19. Both streets have unrestricted on street parking in this locality.

1. The main issue in this case as to whether this site is a suitable one for this use. Is it a suitable location in terms of its surrounds, its Residential 1 zoning and its location in a minimal change area? Is the built form suitable to the location and its surrounds? Is the use suitable in terms of its impact on the surrounding residential area and Morrice Street? Is there sufficient scope for landscaping?
2. I have formulated that issue has a composite of several subsidiary parts. Nevertheless taken together they amount to the real basis for saying that this proposal should not be allowed. Many things were at least mentioned in the course of a lengthy hearing. I do not propose to deal here with minor or irrelevant matters, or things that do not indicate refusal of the proposal because they could be readily remedied by the imposition of conditions. Nevertheless, there are a couple of other issues of sufficient substance to warrant comment.
3. The first of these is in relation to traffic and parking. The second relates to apprehensions in relation to noise. The potential for noise is seen as noise of vehicles and noise of children at play in the outdoor play areas.
4. Is this a suitable location?
5. The suitability of this location has to be viewed in terms of the actual physical situation, in terms of the planning scheme policies, and in terms of planning purposes including to those relating to the Residential 1 Zone and those relating to local planning policies.
6. "Child care centre" is a land use defined in clause 74 of the planning scheme as land used to care for five or more children who are not permanently resident on the land.
7. Clause 32.01-1 of the planning scheme relates to Residential 1 zone land. It contains a table of uses indicating various land uses. Some of them require planning permission, others are prohibited whilst others again do not require a permit. Child care centre does not appear specifically in the table but is covered by the "catch all" provision at the foot of the list in section 2 of the table that reads "Any other use not in the section 1 or 3". As child care centre does not appear in section 1 or section 3 of the table of uses, it is regarded to be a section 2 use. Section 2 uses require planning permission. Furthermore, clause 32.01-6 provides that permission is also required to construct buildings or carry out works for a section 2 use.
8. The primary purpose of a Residential 1 Zone, as its name implies, is to provide for residential uses. The purposes of the zone are found in clause 32.01 and appear as follows:

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

To provide for residential development of 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. Town planning has long since recognised that residential zones and the people who live therein need various other facilities, commercial and otherwise, to serve their residential needs. Such facilities have been recognised as appropriate to locate within residential zones, but some care needs to be taken to see that any proposal is suitable in terms of location, development and otherwise. Thus it is that planning permission is required for such uses notwithstanding the last paragraph of the purposes as quoted above. That last paragraph recognises the principle of the accommodation of non residential uses within a Residential 1 Zone provided that they meet local community needs. Churches, schools, local convenience shops, medical centres and so on come within this concept. So too, do child care centres.
2. Although respect for existing and, where relevant, preferred future neighbourhood character is important, this does not mean that churches, school, shops and the like are required to look like houses. The scale of such buildings will frequently and necessarily be in excess of the proportions of normal dwellings. That might not be true of local milk bars and the like serving daily needs for milk, bread, papers and so on, but nevertheless shops have a different appearance to houses. These differences are necessary. It is not much use having other facilities if they cannot be recognised and found when needed. School, churches and the like will equally need to be considerably larger buildings than individual dwellings.
3. That is also true of child care centres. Although it is possible to convert a house and use it for child care purposes, generally speaking modern proposals for child care centres look to accommodate numbers of children up to 90 to 120 or something of that order. This is necessary for various reasons. Sufficient and suitable facilities are needed for children and staff and it is necessary to capture some of the economies of scale to make efficient use of lands, staff, equipment and facilities.
4. It is appropriate to locate child care centres in Residential 1 Zones. It may be regarded as suitable to utilize frontages to main roads in favour of accessibility and because such sites are less "prime" from a residential point of view. Such facilities and such positions can buffer other residential uses from the impacts of busy roads.
5. The Municipal Strategic Statement for Glen Eira is to be found in clause 21 of the Glen Eira Planning Scheme. It is meant to give an overview of the municipality in terms of town planning. In clause 21.08-1, under a heading of "Overview" the following paragraph appears:

The development and expansion of non-residential and institutional uses in residential areas is an issue that warrants attention. Medical centres, churches, child care and kindergartens all, quite clearly, have a place within residential areas. However, badly sited or controlled non-residential uses can progressively erode Glen Eira's residential nature. The Non-Residential Use in Residential Zones Policy has been developed to ensure that such uses are integrated into residential areas with a minimum impact or loss of residential amenity. Local residents and developers should also be provided with a degree of certainty and direction.

1. Glen Eira council, through its planning scheme, has given some consideration to these important questions of location and has developed some specific local politics in that regard.
2. Of course planning policies, including those within the local planning framework, are policies not prescriptive rules. They are meant to be guidelines to assist the responsible authority, or this tribunal on review, in exercising the discretions created by the planning scheme as to whether planning permission should or should not be granted and if granted then as to what conditions might be appropriate. Where planning permission is required, it is implied by that requirement, that somebody has to give careful consideration as to whether, from a town planning point of view, the permission sought should be granted. In the first place, that is the council of the relevant municipality, acting as responsible authority. In the second place, on review, it is this Tribunal that has that responsibility.
3. The guidelines of policy should not be applied as rules, but they should be used as guidance and they should not be disregarded or ignored. They can be departed from but the reasons for doing so, in a particular instance, are important.
4. If a responsible authority ignores, disregards or fails to apply relevant policies in the absence of good reasons for departing from principles and guidelines, it destroys the purpose of policies. It also denies to local residents and developers the degree of certainty and direction that the last sentence of the above quoted overview paragraph from clause 22.08-1 indicates that they should have.
5. Clause 22.02 in the local planning policies deals with non residential uses in residential zones. At first impression it might appear that the provisions in that clause would be relevant to the present task. Indeed, the representative of the responsible authority took me to that clause, presumably for that reason. However it appears that he was in error in doing so. Although this proposal might, in many ways, be compatible with the provisions laid down in clause 22.02, that clause nevertheless commences with its "Policy Basis" set out in clause 22.02-1. This policy basis contains four paragraphs. The fourth of them reads as follows:

The Policy does not apply to Child Care Centres and Kindergartens. In respect of these uses, the Child Care Centres Policy at Clause 22.11 of the planning scheme applies.

1. The relevant provisions then are to be found in clause 22.11 which is headed CHILD CARE CENTRES POLICY.

This policy applies to the use and development of land for child care centres (including kindergartens) within the municipality.

1. It then goes on to the relevant policy basis. That part of clause 22.11 reads as follows:

The purpose of this policy is to establish reasonable location, design, amenity and car parking standards to apply to child care centres within Glen Eira.

This policy provides guidance, on the preferred location and design for child care centres within the municipality.

The Municipal Strategic Statement recognises that the development and expansion of non residential uses, (such as child care centres) in residential areas is an issue that warrants further recognition and policy direction. Where possible these facilities should be integrated into residential areas with minimum impact or loss of residential amenity. They should also aim to protect the surrounding neighbourhood character of an area.

1. Clause 22.11-1 sets out seven objectives of the policy. I will set out these objectives, one by one, with a brief comment or two, as relevant, in relation to this particular proposal. In some instances further discussion will be necessary. I will put the objectives in bold and the comments in ordinary type.
2. To encourage child care centres to locate in strategic locations that have good access to public transport, commercial, community, educational and recreational facilities.
3. Clearly this site is well located in terms of these "strategic" considerations. It has good access to public transport and other commercial, community and educational facilities in close proximity.
4. To ensure child care centres have minimal impact on adjoining properties
5. Some consideration needs to be given to the word "minimal". It is sometimes taken to mean trifling or insignificant. On that interpretation there might be no locations where the impact is so tiny as that.
6. As with most English language words, minimal has to be understood in the context in which is it used. Dictionaries are often helpful, but also often not definitive in as much as nearly all words have more than one definition and varying shades of meaning. The definition of minimal in The MacQuarie Dictionary[1] refers to "minimum". That word has some specific meanings in science and music but also means:

1. the least quantity or a jot of anything
2. something very small or insignificant ...
3. smallest; very small.
4. The definition given of minimal reads:
   1. pertaining to or being a minimum
   2. least possible
   3. smallest; very small, least.
5. To interpret minimal in this context as meaning trifling, insignificant or a mere jot would be to render the policy impractical. I think it here must mean minor and so as not to have any unreasonable adverse impact on adjoining properties. My assessment is that this proposal meets that objective.
6. To encourage the design, location and form of child care centres which are compatible with the surrounding built form environment.
7. In my opinion this proposal is for quite a well designed structure that will fit appropriately onto the site and into its context and such as to be compatible with its surrounding build form environment. Of course a major aspect of that environment is the frontage to the main road of Glen Eira Road. It has a secondary frontage to Morrice Street and it is proposed to construct a substantial building on the modern style of materials. Two storey buildings of modern style and material are common enough in this locality so that this structure will not be out of place, notwithstanding its relatively significant size.
8. To ensure adequate provision for on site car parking and drop off areas.
9. There is no real contest in this case that the proposal provides ample off street car parking. It also provides for on site drop off. Both of these things can take place in the basement. This objective is meant in the proposal although it will not greatly matter if the odd drop off was to take place utilizing on street parking in front of this building. Of course parents residing in the immediate area are likely to bring children on foot, but other children brought by car are to be anticipated. Some may come by public transport. Facilities of this sort have rather diffuse "peak" periods for dropping of and collecting of little children which do not necessarily coincide with commuter peaks on main roads, or drop off or pick up peaks in relation to schools providing education for older children. Some people residing to the north may well use Morrice Street to get to this facility but otherwise the traffic impact on Morrice Street will be minor. The entrance to the car park is just around the corner from the main road. All the traffic engineering evidence, from various sides, indicate that these streets and this road network will be able to cope without problems of any significance arising from this proposal.
10. To ensure that traffic generated by the use is appropriate to the street and the locality.
11. Perhaps I should have taken this with the previous objective. Traffic generated will be appropriate to the streets and locality.
12. To minimize the impact of noise, overlooking, overshadowing, car parking and traffic on the surrounding neighbourhood.
13. I note that the objective is to "minimise" impacts. There is no talk here of unrealistic avoidance of any impact. I have mentioned car parking, traffic and noise or will do so again. Having regard to orientation, overshadowing is not an issue, and the same is largely true of overlooking although screening can be utilized.
14. To maintain the garden character of the neighbourhood.
15. This structure will not be a dwelling but, taken with opportunities to maintain street trees, there is scope here for some appropriate landscaping.
16. This proposal handsomely meets the objectives of clause 21.11-1. The same can be said in relation to the "preferred" location of child care centres policy set out in the provisions of clause 22.11-2. There are four policy provisions in this clause. I will deal with them as I did with the objectives of clause 22.11-1
17. Encourage the location of child care centres in Housing Diversity Areas (as defined in Clause 22.07 of the planning scheme) and/or on main or secondary roads and preferably on corner sites.
18. This policy proposition contains several alternative preferences. One of them is that child care centres should be located in Housing Diversity Areas. This proposal is not for a housing diversity area and, accordingly, that particular preference is not met. However, there are other equal preferences. A site not in a housing density area is still a preferred location if it is on a main or secondary road. Glen Eira Road is a main road. Therefore this second option is satisfied. This option applies to areas other than housing diversity areas and the alternatives include minimal change areas like this one.
19. This second option uses the expression "main and secondary roads" but that cannot mean that a site must be on the intersection of a main road with a secondary road. Within each option there is a further preference for a site. That implies that a site in a housing diversity area or on a main or secondary road will still be a preferred site, even if it is not on a corner. It is just that a corner site is more preferred compared with a mid block site. I reject the submission that for locations outside housing diversity areas there must be frontages to two roads each of which must be either a main road or a secondary road. That would be to bestow preference (outside housing diversity areas) on sites so relatively rare that this aspect of the policy would be little use as guidance as it would hardly ever apply. In any event, I think such an interpretation is not only improbable, but incorrect.
20. Encourage the location of child care centres near schools, and pre-schools in Housing Diversity Areas and along main and secondary roads.
21. This proposition again recognises the preference for housing diversity areas on the one hand and frontages along main or secondary roads on the other. The added element is preference for nearness to schools and pre-schools. I consider that element to also be satisfied in relation to this proposal. I find it ironic that the town planner called by Mr Chiappi thought that this site was inappropriate because it would constitute or contribute to a concentration of pre-school establishments in the area. To achieve this he advanced some highly doubtful guesses as to the purposes of the policy which are not expressed in what is actually said in the planning scheme. A planning scheme can state such things but there are no such statements here. I find no indication in what is said to the effect that two or several child care centres should not be allowed in proximity to each other. The convenience of location near schools and pre-schools is obvious enough. The planner appears to have overlooked this policy in voicing such a view.
22. The use and development of childcare centres must be at least 200 metres (measured by the shortest route reasonably accessible on foot) from an adult sex bookshop, a brothel and any sexually explicit adult entertainment venue.
23. There has been no suggestion that there is any such establishment within 200 metres. I am very confident that such a circumstance would have been drawn to my attention if it existed.
24. Discourage the location of child care centres on local streets within Minimal Change Areas (as defined in Clause 22.08 of the planning scheme).
25. I think that Morrice Street can be regarded as a local street for the purposes of this policy provision. However, I think it was also clear, reading these propositions as a whole, that this means that child care centres are discouraged mid block in minimal change areas or on corners in such areas between such local streets. It does not cancel the preference already given to locations in minimal change areas on main or secondary roads, especially on corner sites involving main or secondary roads.
26. Although this site, constituted by two allotments, is quite a large one it may originally have been a single allotment. Whether that is so or not, the present situation is that the southern most certainly fronts Glen Eira Road. The northern allotment currently fronts Morrice Street. As a consolidated parcel I would regard the frontage as being one of lesser length, namely that to Glen Eira Road. I think that is correct as to the frontage of the parcel of land, however a particular building might be arranged upon it. Such building might be said to "face" Glen Eira Road, Morrice Street or both of them, or be on an angle between them. I do not regard that point of orientation as being significant generally or in relation to these preferred location policies.
27. It should be remembered that some minimal change areas are extensive in area and people residing therein can benefit from the proximity of child care centres, a proposition well recognised in these local planning policies read as a whole. Such a need is not well served by the provision of child care in a remote housing density area although I think these location provisions are wise in preferring main and secondary roads and corner sites in minimal change areas.
28. Of course "encourage" or "preferred" do not imply prohibition. They guide rather than dictate. It is quite possible for there to be circumstances where a child care centre proposal should appropriately receive permission in spite of not according with these guidelines.
29. That said, it is quite obvious that, in terms of the preferred location of centres provisions in clause 22.11-2, this is definitely a preferred location.

1. The grounds upon which the Responsible Authority determined to refuse to grant a permit deal almost exclusively with traffic and parking. These grounds reads as follows:
   1. The proposal fails to satisfy the intent and objectives of Clause 22.11 of the Glen Eira Planning Scheme (Child Care Centres Policy) with respect to traffic, car parking and landscaping.
   2. The Child Care Centre has the potential to have a detrimental impact on traffic and pedestrian safety both entering and exiting the site and in the immediate area and fails to provide a safe environment for pedestrians and vehicles.
   3. Traffic generated by the proposal will detrimentally impact on traffic movements in the area, particularly at peak drop off and pick up times and will potentially conflict with other non-residential uses in the immediate area.
   4. Vehicles leaving the proposed child care centre will not be able to readily turn into Glen Eira Road such that child care related vehicles will disperse through local residential streets to the detriment of residents in terms of traffic efficiency and amenity.
   5. The Child Care Centre will have detrimental impact on the neighbourhood in terms of noise.
2. The only items in these grounds that do not relate to noise is landscaping in the first ground and noise in the fifth ground in so far as that might relate to children playing rather than traffic noise.
3. I will comment on these grounds later but I now refer to that part of clause 22.11-2 dealing with policy that appears under the sub-heading "Car parking, vehicle access, car park layout and traffic". As before I will reproduce the text in bold with my comments in ordinary typing but I will deal with a couple of items together.
4. "Provide car parking at the rate of 0.2 car spaces to each child.
5. Consider requests for dispensations, or reductions from the above rate, if the applicant can satisfy the responsible authority having regard to the Decision Guidelines in Clause 52.06-1.
6. There is no real suggestion that there is insufficient car parking in this proposal. In relation to this and other traffic matters I have had the benefit of expert traffic engineering evidence directly from two traffic engineers who gave evidence and indirectly in as much as the traffic engineers of the responsible authority. None have found fault with the proposal in relation to the quantum of parking. It is common ground amongst them, and I agree, that there is sufficient car parking provided in this proposal.
7. Ensure that tandem parking is only provided for staff parking, where necessary.
8. This implies that tandem parking can be necessary and can be acceptable. I agree with this and reject submissions to the contrary. Tandem parking is not as convenient as single parking spaces that each have their own separate entry, but they are still useful and it would be a foolish waste of space not to utilise space. That is available. In this case the proposal does contemplate staff use of the inner or first to be occupied tandem space. That is sensible. It does not mean that there can never be an occasion where a car needs to be moved to release a tandem partner car. Nevertheless, such arrangements can be made to work. Generally non staff visitors will be for shorter periods, particularly if they are only in the basement to drop off children.
9. Avoid the need for vehicles to reverse across pedestrian areas.
10. This is achieved except that there is a common aisle in the basement to be used by pedestrians who have alighted from cars and by cars backing out of or entering parking spaces. This aisle runs approximately the length of the proposed building from its northern end to the vicinity of the lifts. Vehicles and pedestrians have occasion to seek to reach the exit ramp and the lifts respectively.
11. Suggestions were made that this arrangement is not ideal and that it would be preferable to be able to provide a separate pedestrian pathway. It was suggested that the width of the basement might be increased to accommodate such an arrangement, although this would be detrimental to landscape plantings. Common use of aisles by vehicles and pedestrians alighting from them is quite common and can work satisfactorily. It may not be ideal, but it is acceptable. I do not propose to require an enlargement of the basement on that account.
12. One possibility, discussed in the course of the hearing, was that the position of the vehicle crossing to the basement ramp might be relocated. Generally speaking the Roads Corporation will strongly oppose new access ways on to road zones Category 1 (like Glen Eira Road) where they can be avoided. It, and other traffic engineers, often also prefer crossings to be as far from an intersection as possible. In this case that might mean relocating the crossing further to the north. That, of course, would bring the vehicles closer to the residential uses in Morrice Street. There is an advantage, from movement and noise point of view, if they enter at the currently proposed position so that their manoeuvring and parking will take place underground in the basement. There are also some typographical questions in relation to such a relocation.
13. I have come to the conclusion that the currently proposed location for the ramp is acceptable. I note too that the whole of this location, from a vehicle movement point of view, is in a very low speed environment and one where people will generally be well familiar with the situation, layouts and potential dangers. This is not an ordinary public car park where strangers are expected to park. People parking in this basement will be staff, contractors and parents or friends dropping off children. The only people likely to unfamiliar with the set up are parents or relatives bringing children for the first time, or picking them up for the first time, or the odd occasional other visitor.
14. The traffic engineer who gave evidence on behalf of Mr Fleiszig (objector) expressed the view that this proposal had probably been designed before traffic engineering advice in relation to the design had been obtained. That may be so, or it may not. Even if it is so, that was not a prohibition; indeed, it is not even the question. The question is, is the proposal satisfactory, whenever traffic engineering advice happens to have been sought? That expert witness is a highly experienced and respected traffic engineer but, in criticising this proposal, he did appear to view the case almost exclusively from a traffic engineering point of view as if that was the only consideration, and made little allowance for countervailing considerations of other sorts. I think that, in this case, that approach has led to counsels of perfection (from a single narrow point of view) rather than counsels of acceptability.
15. One aspect was that he is firmly of the view, from a traffic engineering point of view, that it would be better if the vehicle entry to the basement car park was directly off Glen Eira Road. In saying this I suspect that he was looking at traffic engineering from the point of view of the site alone, rather than from the point of view of the road network.
16. Such a proposal was put to that Road Corporation and it would not countenance it. That hardly surprises me. Indeed, I would have been very surprised, having regard to experience in this area, if the Roads Corporation had sanctioned such an arrangement.
17. This witness expressed the view that he might have been able to persuade the Roads Corporation to allow entry from Glen Eira Road. I have no means of knowing whether he would be successful in such representations. All I have is that representations of the same sort were rejected by the authority. In these circumstances the speculative view that someone else might have been able to persuade the Roads Corporation to a different view, are really beside the point.
18. Provide clear sight lines when entering and exiting the site and maintain good visibility of child care centre from the street.
19. These things are provided.
20. Awkwardly skewed and modified T and cross intersections within the site are inappropriate and should be avoided.
21. In my view, and on the basis of expert evidence that I accept, I consider these undesirable features to have been satisfactorily avoided.
22. Provide clear sight lines when entering and exiting the site and maintain good visibility of the child care centre from the street.
23. This is provided.
24. Avoid the use of access ways to pick up and drop off.
25. These things are avoided.
26. Provide separate pedestrian access between the street and the facility. Typically at a minimum width of 1.2m, clear of parked cars.
27. This is provided.
28. Ensure that traffic generated by a child care centre has minimal impact on the street. An average peak hour rate of 0.91 trips per child should be adopted.
29. According to the expert evidence, with which I agree, the impact of traffic generated by the use would be minimal to a point of being imperceptible. Such criticisms as are made in the area of traffic engineer relate to the basement, not to the surrounding road network.
30. Locate parking used to pick up and drop off toward the frontage of the site. Any parking to these sides, rear of the site or in a basement should be limited to staff parking unless on a corner site.
31. This, of course, is a corner site. I find that pick up and drop off in the basement is acceptable in this proposal.
32. The only expert traffic engineering evidence that opposed or criticised the proposal from a traffic engineering point of view was that of the witness called in support of the case of Mr Fleiszig. That witness said that, in his view, there were three main issues within his area. They are ramp grade, car park layout and tandem spaces. Whilst not suggesting that there is nothing in this criticism, or the proposal would not be more nearly perfect if his views were accommodated, I consider that I have said sufficient to indicate that I regard the layout and the existence of tandem spaces as acceptable. In this I include the central aisle turning through 90 degrees at the front of the ramp to the basement with car parking spaces at 90 degrees off either side of the aisle.
33. I do not consider it necessary to modify the grade of the entry ramp. While a flatter grade might be preferable, I find the proposal to be acceptable. In so saying I adopt the explicit view of the traffic engineer called on behalf of the applicant company and the implicit acceptance of the failure of the traffic engineers of the responsible authority to criticise the proposal or seek modifications to it.
34. There was a diversion to view between the two traffic engineers actually called to give evidence as to the nature of this car park and as to the appropriate guideline in relation to steepness of incline on the ramp. There is a distinction between so called private car parks and public ones. There is a difference between domestic car parking of residents' vehicles or employees' vehicles on the one hand as compared with a car park to serve the general public who come or go such as the car park of a supermarket or a cinema. A private car park might not be open to the general public at all or, it might be possible for a member of the public to enter when that is not intended or invited. The steepest part of the proposed plan is at a grade of 1:5 which accords with the guideline of the maximum of 1:5 for a public car park whereas 1:4 would be acceptable in a private one. This car park is to serve the child care use and is not intended for the comings and goings of the public generally. It is for people whose children are booked in for child care and staff who will be using it and who will quickly become familiar with it. They are not "strangers" except perhaps when attending for the first time.
35. I am satisfied that the proposal is satisfactory and that it is not necessary to alter the building by, for example, raising the floor level of the basement, to achieve a flatter vehicle ramp. My view in that respect is supported by expert evidence which I accept.
36. To return then to the grounds of refusal for the Responsible Authority relating to parking and traffic as set out in paragraph 79 above, I am satisfied with the proposal. It does, in fact, satisfy the intent and objectives of clause 52.11 of the planning scheme in relation to traffic and car parking.
37. The second ground talks of the "potential' to have a detrimental impact on traffic and pedestrian safety entering and exiting the site and in the immediate locality. There is always the potential for an accident, even in the safest of situations. It only requires some inattention or failure to keep a proper lookout for there to be some form of collusion. It follows that an accident could happen here, just as it could happen anywhere. However, there is no unusual danger here, and no unsatisfactory arrangement from a safety point of view.
38. There will be no conflict, or certainly no unreasonable conflict, with other users of the immediate area in relation to pick up and drop off. That activity is to happen in the basement. If it sometimes happens in the street adjacent to the site, there is parking space available that can accommodate it. It would do no great harm. Drop off and pick up times are spread out. It is possible that some vehicles may arrive or leave by coming from the north in Morrice Street. There is no great harm in that although the majority can be expected to come via Glen Eira Road. Reasonable traffic movements are available at that intersection and traffic in the local residential street is unlikely to suffer a detriment or even a noticeable change in circumstances.
39. I do not accept that there is the likelihood of any nuisance in the neighbourhood due to vehicle noise in such a low speed situation. Of course activities on this site in relation to the care of children, including coming and going and delivering them, take place during the day, not during the more sensitive evening, night and early hours of the morning. Furthermore, the noise of faster moving traffic on Glen Eira Road is likely to mask quieter noises from quiet slow moving vehicles in Morrice Street and in the basement.

1. I have already made some reference to the style and form of the proposed building. Clause 22.11-2 of local policy has no policy propositions in relation to this topic. I do not think it is necessary to go through them point by point. I find the proposed building to be quite acceptable in both siting and built form having regard to the context including the main road and the surrounding neighbourhood with new modern and two storey buildings. Although larger than dwellings, as befits its purpose, it is appropriate for this corner site.
2. The policy propositions under this heading offer guidance and advice but do not really offer a basis for refusing the proposal. It would be a matter of modifications imposed by conditions, rather than a refusal.
3. The third policy proposition on deciding a built form in clause 22.11-2 concerns overlooking and overshadowing. It reads

Ensure that new buildings and extensions to existing child care centres are constructed to minimise overlooking and overshadowing of adjoining residential properties. Adequate screening should be provided to avoid overlooking.

This calls for minimisation, rather than elimination of all overlooking or overshadowing. It can be adequately be achieved by siting design and the use of screening.

1. I have already dealt with the question of noise in relation to traffic. The other aspect of noise relates to outdoor play areas, and the sounds of children at play. No expert acoustics evidence was called in this case. The town planner called on behalf of Mr Fleiszig was prepared to venture opinions outside his area of expertise including traffic engineering and acoustics. I have not placed weight on those opinions.
2. The fourth policy proposition under siting and built form in clause 22.11-2 reads:

Require appropriate acoustic treatments, including but not limited to offence, treatment of external walls, roofs, all floors, window and play areas where sensors may impact adjoining properties.

It is proposed to require acoustic barriers in the form of fences or other acoustic screening to protect, in particular, the adjoining residential property to the north. Furthermore, conditions will control times of outdoor play in the more adjacent outdoor play areas.

1. I have briefly referred to the question of landscaping and indicated that I regard the proposal as being acceptable from that point of view.

1. The town planner called on behalf of Mr Fleiszig apparently felt obliged to concede that this is an excellent site for child care centre but then suggested that 120 children would be too many. It is hardly surprising that this lead to him being questioned as to how many would be appropriate. He persisted in resisting in giving an answer to that question but eventually, under cross examination, he suggested an upper limit of 60. He lacks knowledge and experience in local child care centres or in recent practices and developments in that field. In my view he lacks a basis for saying that 120 is too many. He did not justify his limit of 60. The best he could do was to make mention of possible noise of traffic and children, questions I have already dealt with. He was not able to make a case that the maximum of 120 children is likely to create a nuisance. I am prepared to accept that the well designed and well managed establishment at 120 can be conducted without creating a nuisance though a badly designed and badly run one of 60 may do so.

1. That witness was not able to point to any other concerns except to throw in a suggestion that there could be a problem as to the collection of waste. This appeared somewhat out of the blue as a possible "make weight" suggestion. It appeared to have been thought up in the witness box, no mention having been made of it in the adopted written report. I find no basis here for rejecting the proposal. I am confident that suitable arrangements as to waste collection can be achieved.

1. On the last day of hearing Mr Mond obtained consent to make a submission. This occupied 2½ hours notwithstanding that he had estimated 40 minutes. He has certainly made a diligent enquiry into the case. However, he is a layman so far as the professions of law and town planning are concerned. He dealt with various things without appropriately addressing the policy issues raised by the residential 1 zone provisions in clause 32.01 of the planning scheme. I am afraid he also misunderstood the distinction that needs to be drawn between policy as part of the law and planning scheme provisions that lay down legal requirements or constraints. He portrayed various propositions as "law" whereas as they were in fact policy guidelines. They have to be considered but he regarded them as legal constraints. Most of his 15 questions of law were not questions of law in as much as they related to the meaning of ordinary English words and expressions not defined in the planning scheme. Such meanings are, in fact, questions of fact.

1. Having heard and considered the evidence and submissions presented in this case, I conclude that the council's planning officers, in their recommendation, came to the right decision for the right reasons. This was backed by the failure of internal and external referrals to find fault with the proposal. I am satisfied that the grounds of refusal of the responsible authority have not been substantiated and that additional matters raised by objectors does not give rise to a situation where, on the merits, this proposal should rejected. On the contrary, I am proposed to grant the permit subject to conditions.

1. The question of conditions was discussed in the course of the hearing. That discussion was based on suggested draft conditions produced for that purpose. Ultimately, I am responsible for the conditions and will utilise the draft and the discussion in formulating that I consider to be an appropriate set of conditions. In doing so I felt free to alter the English expression and arrangement of the conditions, as well as to alter include or exclude conditions as I thought appropriate.

Development and use of land for a 120 place Child Care Centre with parking in accordance with the endorsed plans provided for in the following conditions which are the conditions of the permit.

1. Before commencement of the development, amended plans are to be submitted to and approved by the Responsible Authority. Such plans are to be drawn to scale with dimensions and three copies are to be provided. When approved the plans are to be endorsed as evidence of their approval and will thereby become the endorsed plans in relation to this permit. The plans must be generally in accordance with the plans submitted with the application (identified as Drawing Nos. TP07-TP12, prepared by Perkins Architects, dated 20/12/11) but modified to show :

1. the material of the front fence along the Morrice Street boundary of the site to be changed from corrugated iron to a timber picket style fence with capping or of an alternative material that is in keeping with the quality of front fences in Morrice Street;
2. additional notes to state that the screens around the perimeter of the upper level playground and for the west-facing window seat of Playroom 07 are to be not more than 25% transparent to restrict overlooking of the adjoining properties;

1. a detailed schedule of materials, finishes and colours (including paint samples) for all external surfaces;

1. an acoustic fence along the northern and western boundaries of the site to a minimum height of 2.0 metres above natural ground level and an acoustic barrier along the northern and western boundaries of "Playground 03";

1. as to plan TPO6 and ground floor plan TP07 modifications in accordance with the changes recommended in Kate Partenio's Report dated 09/01/13 presented to the Victorian Civil and Administrative Tribunal in its hearing of Planning Application for Review P1019/2012; and

1. a landscape plan that must incorporate:
   1. a survey, including botanical names, of all existing vegetation to be retained;
   2. buildings and trees (including botanical names) on neighbouring properties within 3 metres of the boundary;
   3. a planting schedule of all proposed vegetation including botanical names; common names, pot sizes; sizes at maturity; quantities of each plant; and details of surface finishes of pathways and driveways;
   4. landscaping and planting within all open space areas of the site;
   5. three advanced canopy trees (minimum 3.0 metres tall when planted) in playground areas or other locations but not sited over easements.

1. The child care centre allowed under this permit is to confine child care to the following times:
   • Monday to Friday 7:00am to 6:00pm
2. Not more than 120 children are to be on the premises at any one time. This excludes children not enrolled at the centre.
3. Not more than 22 full-time and 3 part-time staff members/employees may be present on the site at any one time.
4. Prior to the commencement of the use, a Parking Management Plan must be submitted to and approved by the Responsible Authority. The Parking Management Plan must include as appropriate:

1. how the allocation of car spaces will be managed, including the provision of staff parking during the operating hours and the provision of 13 parent car spaces during the morning and afternoon peak periods; 2. which car spaces will be occupied by staff;

1. availability of parent parking during the middle of the day;

1. arrangements for delivery vehicles; 2. encouraging use of bicycles and shared transport arrangements; 3. intended education of parents and staff about the Parking Management Plan such as through an orientation session or the like; 4. prohibition on staff utilizing the two car parking spaces opposite the ramp during peak drop off and pick up times.
2. Prior to the occupation of the development, an acoustic fence must be erected along the northern and western boundaries of the site to a minimum height of 2.0 metres above natural ground level and an acoustic barrier to the satisfaction of the Responsible Authority must be erected along the northern and western boundaries of "Playground 03" to a minimum height of 2.1 metres above finished floor level in accordance with specifications to be prepared in consultation with a suitably qualified acoustic engineer or consultant and where details of the design and acoustic qualities of the fences have been approved by the Responsible Authority.
3. Playground areas 2 and 3 must not be used between the hours of 4:00pm on one day and 9:00am on the following day.
4. Not more than 50 children may be present in the rear playground areas (2 and 3) at any one time.
5. No playground equipment or playground structures which have a height greater than 0.5m are to be installed or maintained within 3.0m of the northern and western site boundaries.
6. Disabled persons' access to the building must be provided in accordance with the relevant Australian Standard/s to satisfy the provisions of the Disability Discrimination Act.
7. The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or the commencement of the use or at such later date as is approved by the Responsible Authority in writing.
8. The landscaping as shown on the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to the satisfaction of the Responsible Authority.
9. The amenity of the area must, to the satisfaction of the Responsible Authority, not be adversely affected by the use or development as a result of the:

(a) transport of materials, goods or commodities to or from the land; and or

(b) appearance of any building, works, stored goods or materials; and/or

(c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and/or

1. All security alarms or similar devices installed on the land must be of a silent type approved by the Standards Association of Australia and be connected to a registered security service.
2. No amplified public address system or other amplified sound is to be utilized out of doors except in cases of emergency.
3. All outdoor lighting must be baffled and/or located, to the satisfaction of the Responsible Authority, to prevent light from the site causing detriment to the locality.
4. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

18(a)Adequate provision, to the satisfaction of the Responsible Authority, must be made for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles.

(b)All bins and receptacles used for the storage and collection of garbage, bottles and other solid wastes must, to the satisfaction of the Responsible, be kept in a storage area screened from view.

(c) All bins and receptacles must be maintained, to the satisfaction of the Responsible Authority, in a clean and tidy condition and free from offensive odour.

1. Areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must, to the satisfaction of the Responsible Authority, be:

1. 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;

1. clearly marked to show the direction of traffic along the access lanes and driveways;

1. Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.
2. Vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s) to the satisfaction of the Responsible Authority and any redundant existing crossing or crossing opening must be removed and replaced with footpath, nature strip and kerb and channel to the satisfaction of the Responsible Authority.

• The development and use does not start within two (2) years from the date of this Permit; or
• The development is not completed within four (4) years of the date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.