ANALYSIS - exposition of how to asses an issue or matters to consider

The Noise of Children in Child Care Centres - General agreement that noise emanating from child care centres is reasonable in residential areas does not obviate need to ensure any noise impact is of an acceptable level (paragraphs 11-14).

This case involves a proposal to increase the number of children at an existing child care centre from 75 to 80. The centre has one residential adjoining property and this property owner sought a review of the Council's decision to approve the amendment because of (amongst other matters) the noise of the children playing.

Many decisions of the Tribunal and its predecessors have viewed noise emanating from child care centres as being reasonable within a residential area. It is time to revisit the oft quoted decision of 1978 that it will be a sad day when the laughter of little children becomes a nuisance.

Today, child care centres are often large and outside play and activities are commonplace. Whilst generally speaking the noise of children playing is reasonable in a residential area, this does not mean that a child care centre can obviate the need to act responsibly and appropriately by ensuring any noise impact is of an acceptable level.

Application under section 82 of the Planning and Environment Act 1987; Hobsons Bay Planning Scheme; Residential 1 Zone; Existing child care centre; Amendments to permit to allow a small building extension, the erection of shade cloths and an increase to 80 children; Car parking; Rubbish bin storage; Impacts on Neighbour including Noise and Objects thrown over fence.

Petzierides v Hobsons Bay CC (includes Summary) (Red Dot) [2012] VCAT 686

1. The decision of the Responsible Authority is varied.
2. Planning Permit PA1123410 is amended and an amended permit is directed to be issued for the land at 19-23 Power Street, Williamstown. The permit is amended as follows:
3. Conditions in the permit are amended and must be the conditions contained in Appendix A.
4. The Responsible Authority is directed to issue a modified permit in accordance with this order.

Ms R Hayes, Planning Consultant of ARG Planning Pty Ltd.

The subject land is on the west side of Power Street between Pentland and Freyer Streets in Williamstown. It has an irregular shape with a frontage of 41.4 metres and a total area of 1,877 square metres.

The land contains a single storey brick building set back 10.2 metres from the street frontage with a circular drive and a car parking area containing 16 spaces. The building is used as a childcare centre for 75 children between 7am and 6pm, Monday to Friday.

To amend the existing permit to increase the number of children from 75 to 80;

To amend the endorsed plans to provide for an internal reconfiguration and a small extension;

To erect shade sails above parts of the outdoor play area.

Section 82 Planning and Environment Act 1987.

To modify the number of children permitted in the childcare centre.

Clause 32.01-6 Buildings and works associated with the child care centre (a permit required use) in R1Z.

Clause 52.06-1 To increase the floor area of an existing use and provide the associated car parking.

1. This is an application by Mr Petzierides to review the decision by Hobsons Bay City Council ('the Council') to approve amendments to a planning permit for a child care centre at 19-23 Power Street, Williamstown.
2. There have been four planning permits issued for this child care centre:
   1. The first was issued in 1996 by the (former) Administrative Appeals Tribunal for the construction of the existing building and its use as a child care centre for 60 children.
   2. In 1999, a second permit was issued by the Council allowing an increase in the number of children from 60 to 75.
   3. Also in 1999, the Council granted a third permit allowing buildings and works to accommodate the already permitted increase in the number of children.
   4. In 2011, the Council issued what it calls a "replacement permit" when it became aware of the intention to lodge this application to amend the number of children permitted. The Council did this because amending one of the three permits was not considered appropriate "for a number of reasons".
3. So the 'replacement permit' incorporates all the conditions of the other permits and has the earlier endorsed plans endorsed as the current layout of the child care centre. Ms Gauci advised the replacement permit essentially merges the existing permits into one. However, what this has created is a situation where there are now four permits instead of three; and as a result of this matter will be a further amendment to the fourth permit. During the hearing, I encouraged the Council and the permit applicant to consider reviewing the relevance of all the conditions and the cancellation of previous permits given that the Council has decided to effectively create one new permit in a modified form. I issued directions after the hearing about this, and further conditions were received subsequently from the Applicant and the Council.
4. This proposal seeks to amend condition 14 of the latest permit that restricts the number of children cared for at the centre to 75 by an additional 5 children, a total of 80 children. This proposal also seeks to amend the endorsed plans to provide for internal reconfigurations and a small extension to the existing laundry and staff room, and retrospective approval for two shade sails that are already erected above parts of the outdoor play area.
5. The Council advertised these proposed amendments and three objections were received from the owners of 25, 26 and 27 Power Street. The Council undertook discussions with the objectors and the owner of the centre as well as a mediation meeting with Mr Petzierides prior to this hearing.
6. In November 2011, the Council issued a Notice of Decision to grant the amendments to the Permit including some new permit conditions. Ms Hayes described some of these new conditions as "operational conditions". She advised these conditions are agreed to by her client in good faith and can be readily accommodated in practical terms.
7. Mr Petzierides' concerns relate to the noise associated with the use of the outdoor play area; objects being thrown over the fence; the parking associated with the increase in the number of children and staff; and the adequacy of the rubbish bin collection area.

The Building Extension, Rubbish Collection Area & Shade Sails

1. The proposed building modifications and small addition to the child care centre are minor. None of the parties in the hearing expressed any concern with the proposed design of the small addition to the laundry and staff room. Rather, Mr Petzierides' concern related to the adequacy of the remaining area to store all the necessary bins associated with rubbish collection. Ms Hayes advised rubbish collection occurs via a combination of Council collection and private collection (when required). The bins will be stored in the remaining area on the side of the building behind a new fence and Ms Hayes said this will be adequate for the storage of the bins. I have no concern about the adequacy of this area subject to the details of the rubbish bin area being included on the endorsed plans that will form part of the permit.
2. The parties raised no concern about the shade sails over parts of the outdoor play area. This is sensible as there is limited canopy vegetation to provide the shade for the children, so I have no concern with this aspect of the proposal.

1. The key issue in this case is the impact of the operation of the child care centre upon the amenity of Mr Petzierides' property. It is the only residential interface that the child care centre has. Mr Petzierides has a house with living areas set back 1.2 metres from the common property boundary. On the child care centre side of this boundary is the outdoor play area and a cubby house that has the boundary fence acting as one of its walls.
2. Mr Petzierides explained he can hear children crying out, screaming and crying. He can also hear the banging associated with the play that takes place in the cubby house. Ms Hayes responded to this concern by pointing out there have been many decisions of the Tribunal and its predecessors that have viewed noise emanating from child care centres or, more specifically, from the children themselves as being reasonable within a residential area[1]. Whilst I agree with this in general terms, it does not mean that a child care centre can obviate the need to act responsibly and appropriately by ensuring any noise impact is of an acceptable level, particularly given the size of child care centres today. In other words, I think it is time to revisit the oft quoted decision of the former Town Planning Appeals Tribunal in Krampitz v City of Footscray in 1978[2] where the Tribunal stated:

It will be a sad day for this community when responsible authorities find that the laughter of little children or their exuberance in playing their games becomes a nuisance.

1. This case involved a proposal to use a house as a child minding centre for 27 children over two years of age. The full paragraph within which the above quote is to be found states:

Children of preschool age who will be brought to the premises will spend much of their time sleeping and some of the time engaged in occupations within the house. It will be a sad day for this community when responsible authorities find that the laughter of little children or their exuberance in playing their games becomes a nuisance. We can see no reason to deny the permit on the fourth ground.

1. There are two observations I wish to make about this case. First, the scale of the child minding centre (27 children) is significantly smaller than many of the child care centres operating today in 2012. Second, this decision and others of around that time[3] make reference to children spending much of their time sleeping, playing indoors or playing outdoors for short periods of time weather permitting. This is clearly not the case now in 2012 as the benefits of exercise, outdoor activity, sunshine and a play based approach to education are at the forefront of the minds of today's educators, including child care centres.
2. I pointed out to Ms Hayes during the hearing there are many decisions of this Tribunal that have included findings about the appropriateness of the noise of children playing in residential areas whilst, at the same time, including conditions requiring acoustic fencing to be erected between child care centres and adjoining residential properties[4]. In this day and age, where child care centres may have anywhere between, say, 40 and 140 children, it is appropriate for such centres to take responsibility for its potential noise impacts and provide acoustic attenuation to minimise the impact of the noise of children playing upon adjoining residential properties to an acceptable level.
3. There is no acoustic fencing along the common boundary between the child care centre and Mr Petzierides' house. The parties explained this is due to the history of the development of the child care centre and Mr Petzierides' house:
   • At the time the child care centre was approved with 60 children, the land next door was zoned Residential but owned by the Urban Land Authority (ULA) and its potential development was unknown.
   • The AAT decision for the 60 place centre stated discussion with the ULA indicated the future design of any development on the residential land would take into account the location of the child care centre; the centre had been designed to minimise any possible impact on this land including the construction of 1.85 metre high timber fence and the provision of landscaping along the common boundary. The decision also noted that permit conditions were aimed to address the possible amenity impacts including a restriction on the number of children to 60; a restriction on the hours of operation to 7am to 6pm Monday to Friday; and locating the outdoor play area so the more active play areas are in the western (rear) portion of the site and the more passive activities in the east and north portions of the site.
   • The endorsed plan for this permit shows the 1.85 metre high fence along the boundary with Mr Petzierides' property and the cubbyhouse and sandpit attached to this boundary. The balance of the outdoor play area is shown as one large area extending to the north boundary and around the west side. The only landscaping shown is around the car park area at the front of the site.
   • The plan endorsed for the extension to the child care centre in 1999 described the outdoor area as "existing playground/s" and contained no other detail of its layout or use.
   • Mr Petzierides' house was built between the original approval of 60 children and its expansion to 75 children, as he objected to that application for reasons that included the noise of the children. At that time the officer report considering this issue made comments that I consider have some similarity to those expressed by the Tribunal predecessors in the 1980s:

The objection in regard to excess noise required the noise barrier to be improved. It is noted that the noise emitted from an additional 15 children would be minimal, particularly as the additional places would be for 0 to 2 year olds, who would be indoors for the majority of the day.

1. Ms Hayes explained the common boundary fence was raised by adding 60cm of trellis to minimise the potential for small children to throw things over the fence, but this has not changed the nature of the boundary fence to anything akin to an acoustic fence.
2. Some time after the hearing, I undertook an unexpected inspection of the centre at mid morning on a sunny day whilst the children were outside playing. It is noteworthy that it appeared all of the children were outside playing, including the younger children in their designated play area[5]. What I observed was the sandpit style interior of the wooden cubby house that is attached to the boundary fence. I can understand that any banging in the cubby house including on the fence itself would cause noise to Mr Petzierides' property. I also observed and heard the noise associated children riding wheeled toys, trikes, bicycles and the like over brick paved paths that curve through the outdoor space. Also, as described during the hearing, the outdoor area is now fenced off at the rear (furthest away from Mr Petzierides' boundary) to provide a younger children's play area. This means the older children's play area is adjacent to Mr Petzierides' boundary. Hence, I find the active play is closest to the residential interface rather than it being furthest away as provided for in the original permit.
3. In addition, the statement submitted by the centre management advises it offers "an Indoor/Outdoor program". This means during their main activity time the external doors are opened and children have the choice to participate in activities either inside or outside.
4. I find the proposal to increase the size of this child care centre has now well and truly reached the point where acoustic fencing is both desirable and necessary. It is my opinion that this is required along the boundary with Mr Petzierides' property before the centre increases from 75 to 80 children. This will require the involvement of an acoustic engineer to prepare a report outlining the fencing required and then for the acoustic fencing to be constructed at the centre's expense. There is nothing unusual about including such a requirement in a planning permit as there are many Tribunal decisions for child care centres where acoustic fencing has been required. Indeed, it is now commonplace for such fencing to be offered as part of a planning application, including for centres with 80 children[6].
5. I raised the possibility of acoustic fencing in the hearing with Ms Hayes, but she advised of a reluctance on behalf of her client to do this because of the history of the interface between the two properties and the cost. In regard to the history, the original AAT decision found the amenity impacts were acceptable for 60 children with the more active play areas in the western (rear) portion of the site and the more passive activities in the east and north portions of the site (closest to Mr Petzierides' property). Despite the fact that the replacement permit continues to include a condition to this effect, these circumstances do not exist in reality and the amendments do not seek to rectify this. In regard to the cost, I acknowledge there will be additional expense incurred in obtaining the services of an acoustic engineer to determine the fencing required and to construct the fence. However, this economic burden is not sufficient to persuade me to accept what I find to be an unreasonable amenity impact upon Mr Petzierides' property. In essence, if the centre wants to grow any further, it needs to take responsibility for the noise impact that it generates. In planning terms, acoustic fencing for child care centres in residential areas is now often part of the package and balance necessary to achieve an appropriate use with acceptable impacts in a residential area.

1. Mr Petzierides explained there have been numerous occasions over the years where toys and other items have been thrown over the fence onto his family room windows and into his back and front gardens. Mr Petzierides brought two items that had been thrown over his fence recently to the hearing together with documentation showing all of the items that have been returned to the centre in recent times. This situation was not disputed by the permit applicant. Ms Hayes explained measures have already been put in place to minimise this potential by adding the trellis to the fence. She also stated that it is an unavoidable reality of living next door to a child care centre.
2. Given the fact that this is an existing centre with an outdoor play area next to Mr Petzierides' property, I do not think there is much I can do to change this situation. Indeed, Mr Petzierides himself stated during the hearing that the fence height is "high enough" and this has reduced the impact but "kids are kids". Given Mr Petzierides' view that this fence height is high enough, if the acoustic fencing recommended is lower than this height, it should be constructed to match the existing height to minimise the likelihood of objects being thrown over.
3. I take comfort in Mr Petzierides' advice that his complaints to the centre about objects coming over have been listened to and the frequency of such occurrences has reduced. His efforts to return the objects means the centre remains aware of the issue; and I hope the centre will continue to remind the staff and thereby the children about not throwing objects over the fence, including over a new acoustic fence.

1. When the child care centre was first approved, conditions were imposed requiring staff parking to occur in particular designated spots and requiring staff not to park in Power Street, Freyer Street or Pentland Street. Mr Petzierides expressed concern about the adequacy of the car parking given he understood there would be an increase in staffing levels as well as an increase in the number of children. He stated he had been monitoring the parking situation over past months and it was clear to him that the allocated staff car parking is insufficient and staff look elsewhere to park.
2. Ms Hayes provided a statement by the manager of the centre that the staff work in five shifts to cover the range of hours within which the centre is operating. There is nothing unusual about this as, generally speaking, the majority of staff at any child care centre is in the middle of the day with lesser staff at the beginning and end of the day. I was advised that staff are encouraged to park in the car spaces closest to the outdoor play area including two spaces that are otherwise blocked by other car spaces.
3. Regulations regarding staff and children ratios change over time, hence I am of the opinion it is appropriate to regulate the number of children and provide flexibility in regard to staff numbers. However, the issue of staff parking is a matter that child care centres need to plan and provide for.
4. Ms Gauci pointed out there is no specified car parking requirement in the planning scheme for a child care centre. She also pointed out there is a discrepancy between the endorsed plans that show 15 spaces and the existing arrangement on-site that provides for 16 spaces. Notwithstanding this, the Council is satisfied 16 spaces is adequate to accommodate the demand associated with the additional 5 children. The Council has adopted a car parking rate of 0.2 car spaces per child, which is consistent with the rate identified in the report "Review of Parking Provisions in the Victorian Planning Provisions" and the more recent draft for consultation released last year. The Council explained a rate of 0.2 spaces per child for 80 children equates to 16 car spaces. Hence, the Council is satisfied there is no shortfall as a result of the proposed increase in children. I agree with this car parking provision on the site.
5. The Council pointed out it will be necessary for the endorsed plans to be updated to officially show the additional space that exists on the site, and this can be dealt with through an amendment to the permit conditions. Whilst the plan can be updated, my inspection revealed that the two car spaces that are otherwise blocked in the northwest corner of the car park were being used by one car on an angle. I must acknowledge this was just one inspection, but it does accord with a similar observation made by Mr Petzierides during the hearing. Hence, the centre will need to be vigilant in ensuring staff park in all available car spaces (other than those designated for pick up and drop off in the peak periods).
6. The Council and the Applicant have agreed to a condition that amended plans should be submitted designating 9 staff spaces and 7 drop-off/pick-up spaces. However, the current replacement permit condition is to provide 6 car spaces for drop-off/pick-up without specifying the staff car parking spaces. I think nominating the spaces for pick-up/drop-off is important and I will change this to 7 spaces. The remainder of the spaces can then be used by staff and other visitors at those times, but I would hope that some of the pick-up/drop-off spaces could be used for dual purposes (e.g. for more limited duration staff parking), particularly in the middle of the day when the demand for pick-up/drop-off is less.
7. The Council has sought the inclusion of additional new conditions regarding signage about the car park being for the exclusive use of staff and visitors; that right turn movements out of the car park are prohibited; and requiring automatic lighting within the car park that is switched off outside of the general operating hours. These are not opposed by the Applicant.
8. The 'replacement permit' includes conditions 6, 7 and 8 that require the operator of the centre to ensure staff park on-site and not in Power, Freyer or Pentland Streets; and that the owner/occupier will use their best endeavours to ensure visitors are not parked in nearby streets. The Applicant wishes to alter these conditions so that the operator of the centre will use their best abilities to ensure staff and visitors park on site and where on-street parking is necessary, car parking in Power, Freyer and Pentland Streets will not be encouraged. The Council and Mr Petzierides opposed these changes on the basis that they did not form part of the amendment application and should be subject to a public advertising period. I agree with this, hence I have not changed these conditions.

1. The Council and the centre have agreed on a number of amended permit conditions, including that the previous permits be cancelled within 3 months of the date of this permit. As discussed, I have decided some of these conditions need to be changed and I am also of the view an acoustic report and fence needs to be completed before there is an increase in the number of children. I am cognisant that this may mean the child care centre will not proceed to increase the number of children, in which case this amended permit will not be reflective of the existing operation of the centre. This means the cancellation of previous permits may require further consideration by the Council and the centre. Hence, I have varied the Council's decision and ordered that a permit be issued subject to modified conditions.

Development and use of a child care centre in accordance with the endorsed plans.

The permit must contain the following conditions:

1. Prior to the commencement of the development and the increase in the number of children hereby permitted, three copies of plans and elevations drawn to scale and dimensioned shall be submitted to and approved by the Responsible Authority. The plan must be generally in accordance with the previous endorsed plans but modified to include elevations where necessary and:
   • (a) Clear notations nominating 7 drop-off/collection car spaces and a total of 16 car spaces.
   • (b) The location of the signage required by conditions 11, 12 and 13.
   • (c) The landscaping areas within the front setback as they exist on the site.
   • (d) A nominated bin storage area.
   • (e) Details of the materials, colours and finishes of the new addition.
   • (f) The location and elevations of the shade sails within the outdoor play area.
   • (g) The location and details of the acoustic fencing required along the common boundary with the adjoining residential property as outlined in the acoustic report.
2. Before the number of children increases beyond 75, an acoustic report prepared by a suitably qualified acoustic engineer must be submitted to and approved by the Responsible Authority that recommends suitable acoustic attenuation fencing along the boundary with the adjoining residential property. If the height of the required fencing is less than the existing fencing, it should be constructed to match the existing height to the satisfaction of, and unless otherwise agreed to by the Responsible Authority.
3. Before the number of children increases beyond 75, the approved acoustic fencing must be constructed at the cost of the child care centre to the satisfaction of the Responsible Authority.
4. The use and development shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
5. Once the development has started, it must be continued and completed to the satisfaction of the Responsible Authority.
6. The area set aside for the parking of vehicles, and so delineated on the endorsed plan, shall be made available for such use and shall not be used for another purpose and, at all times in conformity with such plan, there shall be clearly indicated on the ground the boundaries of all such car spaces and access lanes and directions in which vehicles should proceed along the access lanes, and such surfaces shall be sealed and drained to the satisfaction of the Responsible Authority.
7. The operator of the centre shall ensure that all staff and service vehicles associated with the operation of the centre shall be parked in the designated on-site car park area at all times. Furthermore, the operator shall direct patrons to park on site.
8. The operator of the centre must use their best endeavours to ensure that customer and visitor vehicles are not parked in streets nearby.
9. Vehicles under the control of the operator of the use or the operator's staff must not be parked on Power Street, Freyer Street, or Pentland Street.
10. Refuse generated from the use must be contained within the bin storage area except for those times that will allow for Council collection and/or collection by a private contractor to the satisfaction of the Responsible Authority.
11. Before the new laundry and staff room development is occupied, signage, no greater than 0.5 square metres in size, shall be erected and maintained, at the access and egress points to indicate the direction of traffic movements on site to the satisfaction of the Responsible Authority.
12. Before the new laundry and staff room development is occupied or before the number of children increases beyond 75 (whichever comes first), signage, no greater than 0.5 square metres in size, shall be erected and maintained, to advise that the car park is for the exclusive use of staff and visitors to the child care centre to the satisfaction of the Responsible Authority.
13. Before the new laundry and staff room development is occupied or before the number of children increases beyond 75 (whichever comes first), signage, no greater than 0.5 square metres in size, shall be erected at, or near the exit to the site to remind staff and parents that it is prohibited to make a right hand turn out of the car park to the satisfaction of the Responsible Authority.
14. Before the new laundry and staff room development is occupied or before the number of children increases beyond 75 (whichever comes first), automatic lighting or an equivalent measure shall be installed to ensure the bollard lighting at the driveway entry and exit points are switched off after 7.00pm and before 6.30am to the satisfaction of the Responsible Authority.
15. The number of children cared for on-site at any one time must not exceed 80.
16. The hours of operation must be limited to 7am to 6pm Monday to Friday unless otherwise agreed to in writing by the Responsible Authority.
17. The landscaping on site must be maintained in a healthy condition to the satisfaction of the Responsible Authority.
18. The Applicant must apply to cancel the following permits within 3 months of the centre increasing to 80 children or otherwise with the written consent of the Responsible Authority:
    • (a) Permit 6207 dated 7 May 1996;
    • (b) Permit 99.375 dated 23 September 1999; and
    • (c) Permit 99.644 dated 29 September 1999.
19. This permit will expire if one of the following circumstances applies:
    • (a) The development is not started within two years of the day of this permit.
    • (b) The development is not completed within four years of the date of this permit.

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

[1] Ms Hayes referred specifically to M and C Pyle v Wangaratta CC [2005] VCAT 2160 and BAMFA Properties v Manningham CC [2009] VCAT 663

[2] Krampitz v City of Footscray (1978) Victorian Planning Appeal Decisions (VPAD) Vol 13 at 88

[3] For example, Newman v City of Ringwood (1980) VPAD Vol 19 at 1 for a 16 place child minding centre states "children of that age spend quite a deal of the day sleeping and their outdoor activities will be somewhat curtailed by the weather, in any event." Also, Rodgers-Wilson v City of Camberwell (1980) VPAD Vol 17 at 364 for a 20 place child minding centre states "since half of the children will be under the age of three years it seems most unlikely that they would be outside for any great length of time."

[4] For example, LRW Design Pty Ltd v Monash CC [2011] VCAT 1646; Agarwal v Bayside CC [2011] VCAT 1280; Grove & Ors v Hobsons Bay CC [2011] VCAT 748 and McCarthy & Ors v Ballarat CC [2010] VCAT 745

[5] I note this is contrary to the statement submitted by the centre management that it is unlikely for all the children to be outdoors at once because they have different routines, hence there may have been some babies sleeping inside but otherwise it appeared to me all children were outside.

[6] For example, Jones v Boroondara CC [2006] VCAT 1833; Wilson v Monash CC [2007] VCAT 1397 and Melkite Catholic Eparchy v Casey CC [2008] VCAT 1767 where stage 1 included 80 children.