[2005] VCAT 2355

The order of the Tribunal is that the decision of the Responsible Authority is set aside.

A permit is granted for the use and development of the land at 440 Middlebourough Road, Blackburn for the purpose of a 60 place child care centre generally in accordance with the endorsed plans and subject to the following conditions:-

1 The plans to be endorsed and which will then form part of the permit are the plans substituted at the hearing of the Victorian Civil and Administrative Tribunal on 21 September, 2005.

2 The layout of the site and the size, design and location of the development must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

3 Before the use starts, the development (including landscaping and erection of acoustic fencing) must be completed to the satisfaction of the Responsible Authority.

4 The child care centre may only operate between the hours of 7.00am to 6.30pm Monday to Friday.

5 Not more than 8 staff may be present on the site at any one time.

6 Not more than 60 children may be present on the site at any one time.

7 Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

(a)

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

(b)

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

(c)

details of surface finishes of pathways and driveways

(d)

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

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

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

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

9 The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.

10 The garden areas shown on the endorsed plan and schedule may only be used as gardens and must be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of similar size and variety.

The Council's Planning Inspector must be advised of the completion of the landscaping so that a site inspection can be carried out. A further inspection will be carried out 6 months after the completion of the landscaping to ensure that species have been adequately maintained.

11 The existing street tree along Tara Avenue must not be removed until the relevant Amenity Tree Value amount has been paid to Council's Parkswide Department.

12 The existing street tree proposed to be removed along Tara Avenue must be replaced to the satisfaction of the Responsible Authority at the cost of the developer/owner of the land.

13 The use and development must provide a minimum of 8 car spaces on the site. This consists of 4 spaces for staff and 4 spaces for short term drop off and pick up by parents.

14 The car spaces in the car parking area must be appropriately designated for staff and for short-term drop off and pick up by parents and must be suitably line marked and sign posted at all times, to the satisfaction of the Responsible Authority.

15 The car parking areas and accessways as shown on the endorsed plans must be formed to such levels so that they may be used in accordance with the plan, and must be properly constructed, surfaced and drained. The car park and driveways must be maintained to the satisfaction of the Responsible Authority.

16 The use and development must be so managed that the amenity of the area is not detrimentally affected through the:

a.

Transportation 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, or

e.

Car parking.

17 The external playground areas must not be used before 8.00am and after 6.00pm on any day.

18 All security alarms installed on the land must be of a silent type and connected to a security service to the satisfaction of the Responsible Authority.

19 No external sound amplification equipment or loudspeakers may be used for the purpose of announcements, broadcasts or playing of music.

20 Any new power and telephone connection between the development and the point of connection within the road reserve must be concealed.

21 All external lights must be of a limited intensity to ensure no nuisance is caused to adjoining or nearby residents and must be provided with approved baffles, so that no direct light or glare is emitted outside the site.

22 No equipment, services and architectural features other than those shown on the endorsed plan are permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.

23 Discharge of stormwater from the land is required by means of an underground pipe drainage system designed on the basis of a 10 year average storm recurrence interval and discharging into an approved outlet in a street or an underground pipe drain to the requirements of the Responsible Authority. In this regard no water may be discharged from any pipe or paved area onto the surface of any adjacent land.

24 All stormwater drainage within the development site and associated with the building(s) must be completed to the satisfaction of the Building Surveyor prior to the occupation of the building(s).

25 All stormwater drains shall be connected to a legal point of discharge as determined by Council's Drainage Management Engineer.

Prior to the commencement of any works on the subject land a site development layout plan together with detailed design plans and specifications for outfall drainage external to the site shall be submitted for approval by the Responsible Authority. All outfall drainage works must be completed to the satisfaction of the Responsible Authority prior to the occupation of buildings.

26 No building or works shall be constructed over any easement without the written consent of the relevant Authorities.

27 Prior to the issue of the building permit, design plans and specifications are to be prepared by a registered Consulting Engineer detailing civil engineering works within the site in accordance with the endorsed plans. Certification by the Consulting Engineer that the civil works have been completed in accordance with the design plans and specifications is required by the Responsible Authority subsequent to the completion of all the works.

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

•

The development is not commenced within 2 years of the date of issues of this permit.

•

The development is not completed within 4 years of the date of issues of this permit.

•

The use is not commenced within 2 years of the completion of the development.

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.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Scally called Mr G Holwell, town planner of Hellier McFarland Pty Ltd, and Mr S Davies, traffic engineer of GTA Consultants, to give evidence

M Coupland, C Morgan, C Minahan, J Cradick, C Laming

1 This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a permit application for the use and development of land at 44 Middleborough Road, Blackburn for the purpose of a child care centre. The Responsible Authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:

1. The use and development does not respond to the residential context of the site.

2. The design and layout of the development does not respond to the character and amenity of the surrounding area which is contrary to the objectives of Clause 21.05 and Clause 22.01 of the Whitehorse Planning Scheme.

3. The car parking provision is deficient which is contrary to the objectives of Clause 21.05 and Clause 22.01 of the Whitehorse Planning Scheme, and will result in off site amenity impacts on the local street network.

4. The proposal has not sufficiently addressed the potential for amenity impacts to nearby residential properties, including noise and traffic, and therefore does not satisfy the objectives of Clause 22.01 of the Whitehorse Planning Scheme.

5. There is minimal provision for landscaping on the site to replace the tall canopy tree which has been removed from the site, and therefore the proposal does not meet the objectives of Clause 22.04 of the Whitehorse Planning Scheme.

2 At the commencement of the hearing Mr Scally applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and I ordered the amendment of the permit application in accordance with Mr Scally's request.

3 Mr Scally also applied to amend the permit application by substituting the name Pict Technical Services Pty Ltd for the name Hellier McFarland. There was no objection to this amendment and I amended the application accordingly.

4 It is proposed to construct a new single storey building with associated verandahs, car parking and outdoor play areas to be used for the purpose of a child care centre with capacity to accommodate 60 children.

5 The proposed building is setback 10.2 m from Middleborough Road, 2 m from the side street (Tara Ave) 5.95 m from the eastern boundary and 2.83 m from the northern boundary.

6 A car park providing for 8 spaces is proposed to be located to the rear of the building accessed from Tara Ave.

7 It is proposed that up to 10 staff may be present on the site at any one time. Staff and children are expected to arrive at the centre between the hours of 7 am and 11.30 am with pick up times also being staggered throughout the day. The hours of operation have been specified as 7 am to 6.30 pm Monday to Friday.

8 The review site is located on the north east corner of Middleborough Road and Tara Avenue. It is a regular shaped lot with a frontage to Middleborough Road of 22 m and a side boundary dimension to Tara Ave of 42 m. The site has an area of 1082 m2. The site is flat and vacant. A dwelling which previously occupied the site has been demolished and all vegetation has been removed. No permit was required for either the demolition or vegetation removal.

9 Surrounding land uses are predominantly residential. The Box Hill City Oval is located to the south at the intersection of Middleborough Road and Whitehorse Road.

10 Middleborough Road is aligned in a north south direction and functions as a primary arterial road. It is a two way road configured with a 4 lane undivided carriageway. It carries approximately 21,000 vehicles per day. Tara Ave is a local street aligned in an east west direction with a small deviation in the carriageway located approximately 45 m east of Middleborough Road.

11 The review site is zoned Residential 1 under the Whitehorse Planning Scheme. The purpose of the zones is :

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

To provide for residential development at 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.

12 A child care centre is an unspecified section 2, permit required use in the zone. A permit is also required for buildings and works associated with a section 2 use.

13 Clause 52.06 of the planning scheme sets out the requirements for the provision of car parking. The planning scheme does not specify a recommended parking rate for a child care centre and in such circumstances car parking must be provided to the satisfaction of the responsible authority.

14 The State Planning Policy Framework (SPPF) requires that in assessing planning permit applications, a balancing of competing policies must be undertaken to achieve a net community benefit. Clause 11.03-6 of the SPPF gives encouragement for the provisions of a range of community resources and facilities which are accessible to the community and which meet community needs.

15 At Clause 21.05-1 of the Council's Municipal Strategic Statement (MSS) the basis for assessing applications for non residential uses is addressed. It is stated that:

There is intermittent pressure for non-residential uses in residential areas such as medical facilities, churches and child care facilities. It is essential that new buildings associated with these uses are designed in a way that integrates these uses into their residential environments and that there is no detriment to residential amenity.

16 This general policy is elaborated on at Clause 21.05-3 (Objectives, Strategies and Implementation). Non-residential uses in residential areas are encouraged to respect the character and amenity of the area. Relevant strategies are:

•

Facilitating appropriate non-residential uses that are designed to reflect the predominant characteristics of the residential area.

•

Encouraging the retention of the existing house rather than the construction of new buildings.

•

Ensuring that adequate landscape buffers are provided to soften buildings and car parking areas.

•

Ensuring that uses in residential areas do not impact on the amenity of residents by way of noise, wastes generated or detrimental impacts on air and water quality.

17 The implementation of these strategies is to be achieved by ensuring that all applications comply with the Non-Residential Uses in Residential Areas Policy in Clause 22.01, only supporting non-residential uses that are sensitively designed and which provide a net benefit to the community, and by requiring that landscape buffers between parking areas and abutting residential properties be of suitable size and dimensions to provide for a range of screening vegetation and upper canopy trees.

18 The Local Policy at Clause 22.01 recognises the need for non residential uses in residential areas to meet community needs. The objectives of the policy are:

•

To avoid the concentration of non-residential uses where it would:

o Compound off-site effects to the detriment of the amenity of adjacent residential properties.

o Create a defacto commercial area.

o Isolate residential properties between non-residential uses.

•

To make provision for services and facilities demanded by local communities in a way that does not detract from the amenity of the area.

•

To ensure that the design, scale and appearance of premises used for non-residential uses reflect the residential character of the area and have a minimal visual impact on the streetscape.

•

To ensure that the location of the use is appropriate to the role and function of the road network and that adequate provision is made on site for staff and visitor car parking.

19 The policy encourages non-residential uses to adjoin, or be in close proximity to, shopping centres or other non residential land uses or zones and to provide a transition between a commercial zone and residential uses. They are also encouraged in a location where there is a demonstrable need for the proposed facility or service, but they are discouraged from locating in residential zones if there are suitable sites in nearby commercial centres.

20 Policies are specified under the headings of Design, landscaping, amenity, car parking and access. The thrust of these is to ensure that developments respond to the character of a residential area, the amenity of residential areas is not adversely affected by noise, traffic, lighting or loss of security, and adequate provision is made for off street parking. Clause 22.01-4 states that the policy objectives are satisfied if the following performance standards are met :

•

Except for a home office, the site for a non-residential use located either:

•

Abutting a road in a Road Zone (Category 1 or 2).

•

On a corner site.

•

Existing residential buildings retained and incorporated into the development.

•

Landscape buffers provided to all boundaries and around car parking areas.

•

Parking areas located to the rear of buildings and clearly identified from the street.

21 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. I inspected the subject site and its locality.

22 It was the Council's submission that the proposal did not satisfy the applicable policy framework for non residential uses in residential areas because it is proposed to construct a purpose built building rather than utilise the dwelling which previously occupied the site, but which has now been demolished. Mr Song further submitted that the built form of the new building did not adequately respond to the character of the neighbourhood because the proposed setback to Tara Ave is insufficient in terms of providing adequate landscaping opportunities and inadequate separation has been provided to adjoining dwellings. Mr Song raised additional concerns with respect to the shortfall in the provision of car parking and the consequent reliance on on street parking, and the intensity of the use represented by the number of children intended to be accommodated (60).

23 In Mr Song's submission each of these factors has contributed to the Council forming the view that the proposal does not achieve the objectives of the local policy to protect the amenity of residential areas.

24 The objectors broadly supported the Council's submission but raised specific concerns with respect to the provision of car parking and the impact of the proposal on traffic patterns in the surrounding residential streets. It was submitted that the Tara Ave and Middleborough Road intersection is currently at capacity in peak times and that additional vehicular movements at that intersection could not be accommodated. As a consequence it was submitted that vehicles seeking to access or leave the child care centre would do so by "rat running" through the local street network.

25 Additional but related issues were raised in relation to parking in Tara Ave and the difficulties this would create for residents as a consequence of restricted sight lines and vehicular access to properties.

26 The starting point for the assessment of this application is that the proposal provides a service which meets a need which exists within the community. It is of some significance that I did not receive any submissions which disputed the applicant's submission that the use will serve a local community need.

27 It is also relevant that the planning scheme clearly contemplates that such uses will be located in residential areas in appropriate locations. This is reflected in the purpose of the Residential zone to which I have referred previously, and further confirmation is found in the Council's MSS and local policy, both of which recognise the need for non residential uses in residential areas to meet community needs.

28 With respect to child care centres specifically, there is a long line of decisions by this Tribunal which have found that these uses are appropriate in residential areas and that adverse amenity impacts associated with such uses is often a necessary trade off for the provision of these community facilities [1].

29 The planning scheme also provides recognition of the need for non residential uses in residential areas to be designed, located and operated in such a manner so as not to give rise to unacceptable amenity impacts by virtue of excessive noise, traffic, lighting, loss of security and the like. In my view the critical factor in ensuring that the amenity impacts of non residential uses is contained within acceptable limits is the site location. In broad terms a site located on the edge of a residential neighbourhood, preferably on a corner with a frontage to a main road, is ideal because it limits the number of sensitive interfaces with residential neighbours, provides the opportunity for car parking to be provided to the rear of the site and accessed directly from the side street, and also provides scope for on street parking to be provided along the site's sideage.

30 The Council's local policy at Clause 22.01gives effect to these principles with the performance standards specifying that non residential uses in residential areas should abut a main road and be located on a corner.

31 The review site meets these site location criteria and I am therefore satisfied that the proposal is appropriately located.

32 With respect to the Council's concerns about the built form of the proposed development, I think that these are unfounded. I acknowledge that the local policy encourages the retention of existing dwellings, an objective which has not been achieved here. However, there are clearly limitations to the suitability of dwellings for non residential uses, in particular child care centres which are required to meet a myriad of regulations about room sizes, layout, open space, and the provision of facilities for both staff and children. The policy encouraging the retention of existing dwellings is, as far as I can establish, concerned with ensuring that non residential uses are sympathetically integrated with the character of the neighbourhood. The form of the proposed replacement building is in my view consistent with the achievement of this objective. The building is single storey with a pitched and gable roof and exhibits domestic characteristics in window proportions, door locations and the like. The building setbacks are typical of those existing in the neighbourhood. This building will fit comfortably into this neighbourhood.

33 Mr Song was critical of the lack of separation between the proposed building and the site's immediate residential neighbours, however to the east the rear car park abuts the driveway and a garage on the adjoining property, while to the north the interface also comprises a driveway and a car port. The proposed secondary outdoor play area abuts the neighbour to the north but I do not regard the noise or disturbance emanating from a supervised play area in a child care centre as an amenity impact which could be regarded as unacceptable. I note that objections were not received from those properties which have a direct interface with the review site.

34 As I have detailed previously, the principal issue raised by objectors related to the adverse impacts associated with increased traffic and on street car parking. The Council also submitted that insufficient car parking is provided and the reliance on on street parking is inappropriate in a residential context.

35 In assessing these impacts, I was assisted by the expert evidence of Mr Davies, a traffic engineer who was called to give evidence by the applicant. It was Mr Davies' evidence that the eight parking spaces provided on site will be sufficient to accommodate the peak parking demand for employee parking based on a maximum of 10 employees on site at any time and an employee parking rate of 0.67 - 0.83 spaces per employee (this rate is derived from surveys of child care centres undertaken by GTA Consultants). It was also Mr Davies evidence that the number of staff on site will vary during the day and at peak drop off and pick up times four spaces will be available on site for this purpose. Overflow, short term parking associated with drop off and pick up activities can be accommodated on street in Tara Ave adjacent to the site's sideage where there is space for four spaces. Mr Davies acknowledged that there may be occasions when on street parking exceed 4 spaces, but these can be accommodated directly opposite the site adjacent to the side fence of no. 438 Middleborough Road where a further 4 spaces are available.

36 I am satisfied that this arrangement is acceptable. As I have indicated above, one of the benefits of providing non residential uses on corner sites is that it provides an opportunity for on street parking along the sideage of the site where amenity impacts associated with overflow parking in residential streets can be minimised. Bearing in mind my previous observations about this use being a use which meets a community need, and also having regard to the encouragement given by the planning scheme for the location of such uses in residential areas, I do not think that the limited on street parking required for this use at particular times of the day, will give rise to any amenity impacts which could be considered unacceptable.

37 I am also satisfied that the existing street network is capable of accommodating increased traffic movements associated with the proposed use without any disruption to the functioning of the surrounding streets or the intersections. I suspect that the small increase in traffic movements (estimated by Mr Davies to be 260 vehicle movements per day and 52 movements in the peak hour) will be almost imperceptible. In arriving at this conclusion I do acknowledge the objector submissions with respect to the prospect of patrons to the child care centre "rat running" through the residential streets in order to avoid Middleborough Road and in particular the Tara Ave intersection, but I do not agree that the volume of traffic generated by this proposal is of such a magnitude that it will contribute to capacity problems at that intersection or to a decline in the residential amenity of surrounding streets. Existing traffic volumes on Middleborough Road are a function of that road's status as a primary arterial road in this locality and its capacity to continue to function at that level will not be affected by the location on this site of a 60 space child care centre.

38 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit issued.

39 In deciding the conditions to be included on the permit I have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons.

[1] Cann v MMBW (1985) 15 APA 49, Zammit v Shire of Melton (1993/28050) unreported, Fabio Lo-Guidice v City of Borroondara (1997/14350), unreported.