A permit is granted and directed to be issued by the responsible authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the land at 107-113 Hallam Road, Hampton Park which allows use and development of a child care centre and to alter access to a road in a Road Zone Category 1.

The Tribunal directs that the permit must contain the following conditions:

1 Before the 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 (3) copies provided. The plans must generally be in accordance with the plans by Clayton Brown Architects Pty Ltd Nos. TP1 and TP2 March 06 and Landscape Planting Plan by Site Landscape Architects Dwg 06-TP1, but modified to show:

(a)

Lighting of the car park and measures to prevent light spill on adjoining properties;

(b)

The pedestrian link between the entrance and the footpath on Hallam Road;

(c)

Existing and proposed levels, vehicular crossovers, existing services, driveway and/or car park construction etc;

(d)

The location of waste storage, cleaning and collection areas. These areas must be capable of being screened from view and allow for collection to occur;

(e)

The provision of an on-site stormwater retention system;

(f)

A roof plan showing any rooftop plant and equipment.

(g)

The location of all external plant and equipment including air conditioning and heating units, water tanks and exhaust stacks;

(h)

A schedule of construction materials, external finishes and colours (including driveway/parking areas);

(i)

All permanent structures proposed external to the building;

(j)

An acoustic fence of a minimum height of 1.8 metres around the entire perimeter of the property constructed of such density and with no gaps so as to achieve genuine noise reduction for neighbours to the satisfaction of the responsible authority;

(k)

Landscaping for the site. The plan must be prepared by a person suitably qualified or experienced in landscape design. The plan must show:

(i)

the retention of trees 27, 28 and 30 as identified in the Tree Logic report dated 17 October 2005 as well as on the accompanying 'Arborist's Conclusions' Plan;

(ii)

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

(iii)

details of surface finishes of pathways and driveways;

(iv)

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;

(v)

landscaping along the external perimeters of both western and northern outdoor play areas as well as along the southern boundary where not already provided. This landscaping must include species that are both:

•

appropriate to provide for above fence canopy softening of the development from adjoining properties; and

•

compatible with playgrounds in child care centres;

(vi)

landscaping and planting within all garden beds and open areas of the site;

(vii)

replacement of any street trees identified for removal.

All species selected must be to the satisfaction of the responsible authority.

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 any works associated with the development start, detailed drainage construction plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must provide for the installation of a stormwater retention system.

4 Before the development (including demolition) starts, tree protection fences must be erected around the trees identified for retention on the approved landscape plan. The fences must be constructed in accordance with section 5 of the Casey Tree Manual to the satisfaction of the responsible authority. Once constructed the fences must be inspected and approved by the responsible authority. The tree protection fences must remain in place until construction is completed. During development, the trees identified for retention on the approved landscape plan must be watered and mulched to prevent their destruction.

5 No vehicular or pedestrian access, trenching or soil excavation is to occur within the tree protection zone without the written consent of the responsible authority. No storage or dumping of tools, equipment or waste is to occur within the tree protection zone.

6 Once the development has started it must be continued and completed to the satisfaction of the responsible authority.

7 Appropriate sediment control measures must be undertaken during construction to ensure that the development site is adequately managed in such a way that no mud, dirt, sand, soil, clay or stones are washed into or allowed to enter the stormwater drainage system.

8 Any green waste generated from the clearing of land during the construction phase must be mulched or transported from the site as appropriate. Green waste must not be burnt on site.

9 The buildings must not be occupied until the following works have been completed to the satisfaction of the responsible authority:

(a)

The premises are connected to reticulated water supply, sewerage, drainage and underground electricity to the requirements of the relevant servicing authority.

(b)

The areas set aside for car parking and access lanes as shown on the endorsed plan have been:

(i)

constructed with an all weather seal coat of asphalt or coloured / patterned concrete;

(ii)

properly formed to such levels that they can be used in accordance with the plans;

(iii)

drained;

(iv)

line-marked and signage provided to indicate each car space and all access lanes in accordance with Australian Standards.

(c)

Pedestrian connections are provided in accordance with the endorsed plan.

(d)

All landscaping works have been completed generally in accordance with the endorsed plan.

(e)

Disabled access is provided in accordance with Australian Standard Design Rules for Disabled Persons (No. 1428).

(f)

A screened bin storage area is provided in accordance with the endorsed plan.

(g)

The fencing is installed in accordance with the endorsed plan.

10 The use and development must be managed to the satisfaction of the responsible authority 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;

(d)

presence of vermin.

11 The use may operate only between the hours of 6.00am to 7.00pm Monday to Friday without the further written consent of the responsible authority.

12 No external sound amplification equipment or loud speakers are to be used for the purpose of announcement, broadcast, playing of music or similar purpose.

13 All external plant and equipment must be acoustically treated or placed in soundproof housing to reduce noise to a level satisfactory to the responsible authority.

14 All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the responsible authority.

15 Not more than 150 children may be cared for on the premises at any time. The number of children under the age of 3 years old being cared for at the centre must be to the written satisfaction of the responsible authority.

16 No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building without the written consent of the responsible authority.

17 External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the responsible authority. No coloured or flashing lights may be installed.

18 Provision must be made on the land for the storage and collection of garbage and other solid waste. This area must be screened from public view to the satisfaction of the responsible authority.

19 Litter bins must be regularly emptied and secured so that no wastes are spilled or dust or odour is created to the satisfaction of the responsible authority.

20 Stormwater must not be discharged from the site other than by means of an underground pipe drain discharged to an approved outlet in the street to the satisfaction of the responsible authority.

21 The on-site stormwater retention system must be maintained to the satisfaction of the responsible authority.

22 No fewer than 27 car spaces must be designed and provided on the land for the use and development, including one space clearly marked for use by disabled persons.

23 Signage and line-marking to the satisfaction of the responsible authority must be provided directing drivers to the area set aside for car parking and must distinguish between staff and visitor spaces to the satisfaction of the responsible authority. Such measures must be maintained to the satisfaction of the responsible authority.

24 The vehicular crossings must be constructed to suit the proposed driveways to the satisfaction of the responsible authority and any 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.

25 The operator of the child care centre must use his/her best endeavours to ensure that vehicles under the care, management or control of the operator of the use, including staff vehicles, are not parked in Kooyong Close.

26 The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority and used for no other purpose, including that any dead, diseased or damaged plants are to be replaced.

(a)

Prior to the use permitted under this permit and prior to commencement of works associated with the proposal, a detailed functional layout must be submitted to VicRoads and the responsible authority for approval. The layout must include, but not be limited, to the following:

(i)

a right turn lane arrangement must be constructed on Hallam Road at the vehicle access location. The roadworks shall be designed in accordance with current road design standards and constructed to the satisfaction of VicRoads.

(b)

Subsequent to the approval of detailed functional layout a detailed engineering layout must be submitted to VicRoads for approval. When the detailed engineering layouts are approved, an additional copy must be submitted to VicRoads for surveillance purposes.

(c)

Prior to the commencement of roadworks, the developer must contact Team Leader - VicRoads Improvement Projects Department (Telephone No. 9881 8080) for the following requirements:

(i)

provide a bank guarantee (in the name of the developer) without a termination date, to VicRoads for the estimated cost of works;

(ii)

provide evidence that the contractor has a public liability insurance policy for at least $10 million, effective for the duration of the works;

(iii)

provide VicRoads with the name, address, business and out-of- hours telephone numbers of the principal roadworks contractor;

(iv)

submit to VicRoads for approval, a Traffic Management Plan showing the proposed provision for traffic and signing for the duration of the works, at least 21 days prior to the commencement of works. The Traffic Management Plan must meet the requirements of the VicRoads Worksite Traffic Management (Roadworks Signing) Code of Practice which incorporates AS 1742.3 - 2002. Traffic management/control must be carried out by suitably trained personnel;

(v)

arrange for the contractor to contact the VicRoads Surveillance Coordinator (Telephone No. 9881 8079), at least seven 7 days prior to the commencement of works. Note: The contractor will be charged for the actual cost of VicRoads surveillance, which may be undertaken at certain key times during the works; and

(vi)

provide evidence that the contractor has developed and maintained a Quality Management System, Occupational Health and Safety System, Environmental Management System and Traffic Management System, to the satisfaction of VicRoads.

(d)

The developer must pay the full cost of all roadworks, drainage, road safety devices, service relocations, civil works, public lighting and any other associated costs, i.e. all works to be completed at no cost to VicRoads.

(e)

Until such time as Hallam Road is duplicated all traffic movements will be permitted. When Hallam Road is duplicated a median break will not be provided to allow access to the development from the southbound carriageway, and no compensation will be payable on this account.

(a)

No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

(b)

Before starting works, a separate application, direct to Melbourne Water, must be made for any new or modified stormwater connection to Melbourne Water's drains or watercourses. Before accepting an application, evidence must be provided demonstrating that council considers that it is not feasible to connect to the local drainage system.

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

•

The development is not started within two years of the date of this permit.

•

The development is not completed and use commenced within four years from the date of this permit.

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

Mr N J Tweedie of counsel instructed by Deacons Solicitors. Mr Tweedie called Ms Sophie Jordan, Town Planner of Urbis and Mr Michael O'Brien, Traffic Engineer of TTM Consulting Pty Ltd.

Ms Keri Hoffman, Town Planner, appeared for the City of Casey.

1 An applicant appealed council's failure to make a decision on a child care centre application, but by the time the review came before me, the council supported the centre, subject to certain contested conditions.

2 A directions hearing before Martin M[1] adjudged that objecting neighbours had no standing, as the application was exempt from third party notification rights, as generally in accordance with the Hampton Park Development Plan pursuant to clause 43.04-2 of the Casey Planning Scheme.

3 The only persons at the hearing were the developer and council.

4 At the commencement of the hearing and pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'), Mr Tweedie requested the Tribunal substitute revised plans for those which had originally accompanied the application, which I did as there was no objection.

5 The referral authority VicRoads did not appear at the hearing, as it was satisfied that Plan No. 548201 by TTM Consulting Pty Ltd Issue A, met its mandatory permit condition no. 27.

6 There was no debate that the site was perfect for its proposed use, being on a main road, in a growing demographic community, opposite a primary school, 200 metres from the Hallam Park Activity Centre, on an uncharacteristically large allotment of 3035 square metres with no heritage or landscape overlay controls inhibiting development and with enough room on site for car parking.

7 It is currently occupied by a house to be demolished and a garden with some handsome canopy trees. These trees contribute to the neighbourhood. Some neighbours certainly contribute landscaping and canopy trees, while others contribute nothing and offer bare backyards with sheds and grass but no trees or shrubs in this newly developing area. But as the arboricultural plan notates, the street verges and neighbours do contribute canopy trees to the neighbourhood.

8 It is proposed to house 150 children under the age of five in this purpose built new building providing 29 off-street parking spaces for staff and parents as well as a 'one way in-one way out' drive through access for parents dropping off children and short term drop-off parking spaces.

9 The interface between the car park, child care centre entry and Hallam Road are proposed to be well landscaped.

10 The applicant represented to council through its arborist report at paragraph 5.7 that certain of the handsome canopy trees in the backyard, the apple, cherry and elm trees nos. 28, 30 and 32 could be retained, notwithstanding their tendency to drop fruit or seeds, given careful management by the child card centre.

11 The applicant offered the retention of these canopy trees to council. The architect for the applicant operates three child care centres himself and is familiar with the requirements they generate and with DHS regulations.

12 However, the applicant has now resiled from this representation and seeks their removal and replacement with two slim canopy trees in the immediate rear corners (Kanookas) with some Mexican Orange blossom shrubs that reach two metres in height but will not grow above the height of the proposed acoustic fence and will therefore contribute nothing to the neighbourhood.

13 The land is zoned Residential 1 and no other relevant overlays apply. Applicable policies that have been designed by council for this type of use fall under clause 22.08 'Non-residential uses in the residential zone', with which the proposal complies as far as car parking generation is concerned.

14 Clause 22.08 applies to all residential zoned land where a permit is required to establish a non-residential use. Its policy objectives at clause 22.08-2 are, inter alia, to allow complementary non-residential uses to be integrated into residential areas and to ensure harmony between residential and non-residential uses. Harmony and integration are key objectives (Tribunal emphasis).

15 Clause 22.08-3 proceeds to outline policy, among which is that non-residential developments be planned and designed to cause minimal loss of amenity, privacy and convenience to people living in nearby dwellings, and that they operate in a manner that causes minimal loss of amenity, privacy and convenience to people living in nearby dwellings.

16 The debate surrounded some conditions imposed by council as to:

i

canopy trees in the backyard originally represented for retention by the applicant;

ii

rear landscaping provision in the playground;

iii

reduction of children numbers from 150 to 130 due to feared inadequacy of car parking spaces;

iv

risk of overspill parking;

v

length of car spaces;

vi

endorsement of ancillary non-permanent structures on plan, such as 'all play equipment'; and

vii

acoustic fencing wording.

17 The acoustic fencing, overspill parking, length of spaces and permanent structures can be dealt with quickly. Permanent external structures should be endorsed on the plan, as they need planning permission at this point in time. Alternative conditions were mooted which I have adopted.

18 I have deleted the council's reference to 'all external play equipment' as it is too severe. DHS regulations prefer moveable play equipment. Pursuant to the DHS publication 'Outdoor Play: A Guide for Children's Services Centres'

Staff are encouraged to constantly change the supply and arrangement of loose and movable items in the play area.

19 It is reasonable to uphold the planning scheme parking space lengths, particularly where the Australian Standard addresses a different aisle width.

20 It is also reasonable to protect residents in courts from overspill parking, as these centres should contain their car generations where possible, and they have proved it possible in this case.

Reduction in child care places based on car parking generation

21 Clause 22.08-3 specifically deals with certain uses, including child minding centres:

The following performance standards are deemed to satisfy some aspects of the policies outlined above:

1. Larger child minding centres in excess of 40 children located along major roads.

2. Car parking provided at the rate of one space per staff member, a drive through drop-off bay for at least three vehicles and one space per 20 children.

3. The scale and form of building design including setbacks, façade treatment, building materials and colour scheme consistent with the surrounding residential environment.

4. Provision of a landscape strip along the street frontage of at least 2.0 metres in width.

22 The proposed centre complies with each limb of the policy, including car parking calculated on the basis of the following numbers provided by the applicant:

23 On this basis and applying Department of Human Services staff/child ratios, a total of 18 staff is anticipated for 60 children under three years and 90 children between three to five years. Adding to this the parent and drop-off spaces, a total of 29 spaces is generated which is supplied on site.

24 Independent parking generating surveys carried out by the applicant's traffic engineers support the fact that only 24 spaces are generated at peak operating periods which only last temporarily and which are well within the 29 spaces supplied.

25 There is therefore no reason to reduce child care numbers in this highly needed facility.

26 There are times in life when one throws ones hands up in the air in despair and proclaims 'what is the world coming to'? This is one of those cases. The proposed centre interfaces with many neighbouring backyards within a clear policy context that requires these non-residential uses in residential zones to harmonise and integrate.

27 I was told by Mr Tweedie that requiring the retention of canopy trees in playgrounds of child care centres is no longer compatible with child care centres and should therefore not be required as part of a planning permit which seeks to integrate such centres into a purely residential context.

28 Not just that, but according to Mr Tweedie the child care DHS guidelines go further and prevent little Johnny and Betty's descendants, Joshua and Madison, from climbing any tree while under such care.

29 The debate concerned three handsome canopy trees in the backyard, the apple, cherry and elm trees, as well as a two metre strip of perimeter landscaping sought by council to interface with neighbours.

30 The applicant's plan, while it proposed a reasonable level of planting in the front setback and around the car park interface with neighbours, left the playground and perimeter of the rear of the centre void except for two slim canopy trees in the two rear corners (Kanookas) surrounded by Mexican Orange blossoms that may reach two metres in height but will not grow above the height of the proposed acoustic fence.

31 I asked Mr Tweedie to obtain evidence from a DHS representative on conflict between children and landscaping in playgrounds of childcare centres. I also advised that I wished to hear from neighbours on their attitude to these three existing trees mentioned in council's proposed permit conditions.

32 Mr Tweedie called for an interlocutory hearing on Monday, 10 July 2006, to persuade me that I might be committing an error of law in seeking neighbours' views on the existing trees and indeed in keeping the existing trees. He also advised that DHS refused to attend a hearing and give an opinion on the relevant three trees, and that if I subpoenaed its knowledgeable officers, they would still not be forthcoming with advice.

33 During this interlocutory hearing, Mr Tweedie provided me with DHS childcare centre guidelines on outdoor play.

34 Thankfully, I note that the outdoor play guidelines actually encourage trees which children can climb, as long as hazards underneath such as a concrete path or fence are omitted. Neither of these two risks exists under the elm tree.

35 The DHS publication 'Outdoor Play: A Guide for Children's Services Centres'

encourage different planting arrangements in the playground to facilitate play such as tree climbing and hiding.

36 At the 10 July hearing, Mr Tweedie resiled from not providing any effective perimeter landscaping, even though he insisted:

i

There are no planning controls preventing his client from pulling down all the existing trees at present, to which I responded that I deal with the facts that exist on the ground and in an existing conditions plan, and if those facts change, he can advise me.

ii

These are not native trees and there is no applicable planning policy to retain native vegetation, to which I respond that the two Magenta cherries are native according to the arborist.

iii

Council has no neighbourhood character description or policy in its scheme, so I need not take any into account. I will address this later.

iv

In law, I cannot and should not order the retention of existing trees unless the loss of these trees is unacceptable to the development. As the development is only single storey, it needs no screening. I will address this later.

v

Although Gibson DP in Terminals PL v Greater Geelong CC[2] considered:

It is quite appropriate for the Council in this circumstance to seek public input on an informal basis to its decision-making, but that does not override the scheme in the Act and planning scheme which excludes the review rights of third party objectors

I ought not let the neighbours express their views on the limited issue of tree retention[3], as it amounts to circumventing their exclusion by the planning scheme.

37 The DHS publication 'Outdoor Play: A Guide for Children's Services Centres' outlines issues relating to the planning and design of quality outdoor play spaces in Victorian children's services centres.

38 When planning outdoor spaces in children's services centres we are reminded to consider the play needs of children who may spend up to twelve hours a day and sometimes up to 5 years in the centre[4]. Young children are developing fundamental skills which require adequate space and opportunity for practice. Inadequate and poorly designed play space has been shown to have negative effects on the children's behaviour and their learning and teacher behaviour.

39 Children may have to use the same space for five days a week and between forty-eight and fifty-two weeks a year during the first five years of life. They need variety and challenge in activity. An outdoor space should be large enough to enable staff to set out a variety of activities to meet the individual needs of children. This is essential if mixed-age groupings will use the same outdoor space.

40 Plants create a living environment with constant change, offering a welcome change from human urban settings. These living environments attract birds, butterflies and other insects enabling children to observe and learn about nature. They provide a constant supply of objects for nature study, artwork and other creative activity as well as providing props for children's play. There is endless variety in fruits, bark, leaves, roots and flowers, providing colour, sounds, shapes, forms and textures. Many flowers, foliage, bark and roots also have perfumes (and odours) which emerge as you crush their leaves, walk on them or brush past them.

41 Child care centre proprietors are encouraged to use plants to, inter alia, provide shade and shelter from wind and attract birds and insects of indigenous species. The proposed trees provide ready made shade and diminish the reliance upon shade cloths. The guidelines specifically advocate planting trees with canopies.

42 The DHS' 'Outdoor Play: A Guide for Children's Services Centres' states that the following should not be used in child care centres:

•

Plants which irritate asthma and hay fever sufferers;

•

Plants that irritate the skin;

•

Plants with toxic parts;

•

Plants with sharp thorns, spikes or branches;

•

Plants with small fruits which babies may place in their mouths or noses;

•

Trees with drop limbs; and

•

Trees (which children can climb) with hazards underneath such as a concrete path or fence.

43 I inspected the site and surrounding neighbourhood on Wednesday, 12 July 2006. The location of the three canopy trees was at the very rear of the site, hard abutting the rear fence or nearby. In a child care centre, play areas are divided into age groups and monitored accordingly.

44 It was an area that could easily be designated an older children's play area.

45 The arborist identified that 'these trees also produce large or woody fruit that may be undesirable in the context of development, but the trees could be retained if the risks were successfully managed'.

Case law on integrating non-residential uses into residential zones

46 Mr Tweedie has tried to impress upon me that non-residential uses in residential areas provide a need, and therefore do not need to address the usual residential amenity measures, such as built form, bulk and landscaping. He relied upon three cases to establish that necessary services were exceptions to normal residential standards.

47 In PrimeLife Corporation Ltd v Bayside City Council[5] Liston SM and Rickards M observed:

7 It is our view that the principal issue in this appeal, is the issue of whether or not the proposal is an overdevelopment of the site, and the closely related question of whether or not it is sufficiently respectful of neighbourhood character ... ... ...

8 It was argued that the proposal was an overdevelopment of the land, and the indicators of overdevelopment were held to be the number of dwellings proposed, that is 55 dwellings, and the large somewhat institutional character of the proposed building.

9 It is entirely true that in terms of the proposed physical development, the proposal is quite different to the detached houses and medium density developments which are characteristic of much of suburban Melbourne. ... ... ... Nursing homes, and aged persons accommodation such as this, are in fact residential uses which are properly located within a residential zone. The scale of this and similar buildings is defined by the needs of the residents and the practical and economic considerations which attach to realising those needs.

10 Therefore, accommodation such as this is entirely appropriate within urban and suburban environments, notwithstanding the fact that the frequency of the occurrence of such buildings will be rare by comparison with the occurrence of conventional dwelling types. It follows from this that it is our opinion it is inappropriate to apply the notions of overdevelopment, and neighbourhood character, to proposals such as this, in the same way that one would apply such notions to a more conventional medium density proposal.

48 In Lineus May Nominees PL v Stonnington CC and Others[6], Marsden SM said:

Need is a relevant factor in this case. However, the issue of need is not so much relevant to the use (as, prima facie, existing use rights already exist) but rather to the issue of the design of the building and its size, for these provide the crux of the issues in this case.

Having said that need is relevant, it would be a fruitless exercise to hold that the building should be designed in such a manner as to render its use for the purpose of aged care less effective.

The fact of the matter is that the Good Design Guide is not of much assistance when considering an application for an institutional home, the relevant Planning Scheme definition in the present case. The needs of a person residing in nursing home accommodation are quite different to the needs of someone residing in a conventional unit. Consequently, the appeal raises design issues which are quite different to those issues which arise in applications for medium density housing.

49 In Knox City Council v Tulcany Pty Ltd and Others[7], Osborn, J held:

The concept of net community benefit is not one of ideal outcomes, but of outcomes which result in a net benefit to the community assessed within a policy framework by reference to both their benefits and disbenefits.

50 The site is unusually large, blessed with a large number of mature, attractive canopy trees which contribute to the neighbourhood in general as well as to the children coming to the centre.

51 Removal of most of the good specimens is necessary to provide indoor and outdoor accommodation and car parking to cater for 150 children varying from 0-5 years of age in rooms and outdoor areas designated for each different age group. As Mr Tweedie submitted, the greatest number comes from the older age group:

52 Council's planning scheme has excluded neighbours from exercising their usual third party appeal rights in the planning system, apropos this child care centre.

53 Council's planning policy clause 22.08 specifically targeting non-residential uses in the residential zone, allows complementary non-residential uses to be integrated into residential areas if harmony between residential and non-residential uses can be ensured.

54 A most common way of ensuring this harmony is to soften the interface between neighbours with visible landscaping that contributes to the neighbourhood. All the better when that vegetation is both existing, in fair or good condition and semi-mature, so one does not have to wait upwards of eight years for canopy to make itself visible.

55 While some trees may be risky for younger children, older children may be benefited by them. Given that there is no evidence before the Tribunal, both from DHS or another expert, that the trees are risky in their rear location where this area can be divided off for older children, and given that the guidelines encourage the Elm tree, I order their retention.

56 I have come to the conclusion, balancing all factors, that the two cherry trees abutting hard up against the rear fence could be retained (nos. 27 and 30), given:

i

their perimeter location;

ii

their present contribution to softening the development at an interface; and

iii

a future ability to barrier them off the playground if necessary, in the event danger to children from falling fruit was perceived a risk for an older age group.

57 Cherry tree no. 29 in the middle of the two trees seemed constrained by its close neighbours, trees nos. 27 and 30, so its demise would allow for better spread of its retained neighbours, two Magenta Cherry trees.

58 Sadly, other existing trees which contribute beautifully to the neighbourhood and to the proposed centre, such as the Narrow leaved ash tree no.16, interfere with the amount of outdoor play space designated for its wide side setbacks, so will have to go, given the balance between competing factors of amenity, neighbourhood character and enough places for children.

59 As for the apple tree no. 32, this is in the centre of an area which would be very useful to the playground, so if one had to control fruit drop, it would delete available play space and therefore numbers of children that could be accommodated at the centre.

60 The magnificent Golden Wych Elm tree no. 28 with a height of 11 metres and a spread of 19 metres and also near the rear, has been identified High Value by the arborist. The arborist identified that this tree was a significant tree that:

should be considered for retention within any site development.

61 The elm's branches are low to the ground and drop seed. The arborist report recommended the crown be uplifted. This Golden Wych Elm appears inherently attractive as well as particularly attractive and suitable for climbing by children, and is in a location that could easily be permitted only to an older age group.

62 I had discussed at the 10 July hearing, that I may require the exchange of a perimeter landscaping plan between Persir and council, but am satisfied that there have been enough hearings and this can be determined to council's satisfaction under a permit condition.

63 Mr Tweedie was concerned that measures adopted to prevent children accessing these three existing trees together with perimeter landscaping will deplete the amount of outdoor area available for play, thereby reducing the numbers of places permitted at the centre. His concern was really as to child care numbers.

64 Given the key policy to harmonise and integrate non residential uses into residential areas, and the fact that this centre will interface with neighbours for a long time, it is critical that the centre give something back to its neighbourhood other than a large bare playground with hardly any canopy vegetation.

65 Given also that these centres are heavily used by children who may spend up to twelve hours a day and sometimes up to 5 years in the centre, they too are permitted to enjoy an existing amenity if available, and what better than to preserve a beautiful climbing tree. The risk is that it may generate fewer children at the centre, although if its crown is uplifted, this may never eventuate. The benefit is that very many children in the older age group will enjoy climbing this tree, enjoying its shade and playing hide and seek around it.

[2] [2005] VCAT 265 (16 February 2005)

[3] as opposed to any status as a party to the proceeding

[6] (1998) 22 AATR 248 @ 253

[7] [2004] VSC 375 (30 September 2004)