[2005] VCAT 1251

The order of the Tribunal is that the decision of the Responsible Authority is set aside. In permit application 462/2004/06P a permit is granted and directed to be issued for the land at 1560 Main Road, Research (i.e. Lot 6 LP31238, Lot 3 LP18113 and Lot 1 PS342230Y). The permit will allow the development and use of the land for a childcare centre, native vegetation removal and the erection and display of two business identification signs, in accordance with the endorsed plans and subject to the following conditions:

1 Before the development and use 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 copies must be provided. The plans must be generally in accordance with the amended plans submitted to Council on 17 November 2004, prepared by Ron Unger Architects numbered SK1b, SK2a, SK3a, SK4a, SK5 and the landscape plan prepared by Urban Initiatives identified as Dwg. No. LDD01 Rev. A dated 13 September 2004, but modified to show:

(a)

A schedule of colours and finishes to the satisfaction of the Responsible Authority, including the use of colorbond 'wilderness' colour for roofing;

(b)

Car spaces 10, 11 and 12 set aside as 15 minute visitor parking between the hours of 7:00am and 9:15am;

(c)

Plan notations indicating that car spaces for staff and visitor use are to be appropriately identified on the site by suitably designed signage no more than 0.3sq.m in area.

2 The development and use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3 Prior to the commencement of buildings and works, trees marked on the plan to be retained must have a Tree Protection Zone (TPZ) defined. The TPZ must extend to at least around the drip line of the tree and shall be approved by the Responsible Authority. In addition:

(a)

The TPZ must be shown on a plan and provided to the Responsible Authority for approval.

(b)

The TPZ must have erected a Tree Protection Fence prior to commencement of any excavation or construction works on the site and shall be maintained in good condition to the satisfaction of the Responsible Authority until the completion of the construction works on the site.

(c)

Once the Tree Protection Fencing is erected, Council must be notified to arrange for an inspection.

(d)

The Tree Protection Fence shall be constructed of suitably robust wire mesh approved by the Responsible Authority and erected to a height of 1.5 metres around the TPZ and the fence clearly signed "Tree Protection Zone - Keep Out" on all sides.

(e)

Fences shall be only shifted during construction works on the site with the consent of the Responsible Authority. The fences shall not be removed before the commencement of occupation of the building hereby permitted.

(f)

No materials or equipment are to be stored within or should be allowed to enter the TPZ.

(g)

No open cut trenching or excavation works are permitted within the TPZ. All underground services must be bored or excavated by hand and supervised by an Arborist approved by the Responsible Authority.

(h)

There shall be no changes to the soil grade level in the TPZ.

(i)

Temporary access through the TPZ can only be done with the consent of the Responsible Authority.

(j)

The entire area within the TPZ must be mulched to a depth of 100mm using well-composted timber based mulch.

(k)

All contractors working at the site must be instructed by the site supervisor of the reasons for the TPZ and associated conditions.

4 Landscaping and planting of the subject land, as detailed on the endorsed Landscape Plan, must be carried out prior to commencement of use, unless otherwise agreed to, due to seasonal conditions and the development hereby approved under this permit shall be maintained thereafter to the satisfaction of the Responsible Authority in accordance with the endorsed plan.

5 Only those trees marked as "trees to be removed" (or similar notation) on the endorsed plans are permitted to be removed or destroyed to the satisfaction of the Responsible Authority.

6 No other vegetation on the site shall be removed, damaged or destroyed without the prior written consent of the Responsible Authority (other than in accordance with a Notice given pursuant to the Local Government Act).

7 A copy of this permit and the endorsed plan must be kept on site and made available for inspection by Council officers upon request at all times that the vegetation removal is being undertaken.

8 The development and use must be managed 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)

Emissions of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;

(d)

Presence of vermin.

9 The maximum number of staff permitted on the premises at any one time must not exceed 14, unless with the prior written consent of the Responsible Authority.

10 The maximum number of children permitted on the premises at any one time must not exceed 100.

11 The operating hours of the use hereby approved shall be restricted to the following hours unless with the prior written consent of the Responsible Authority:

12 Vehicular access and egress to the subject land from the roadway must be by way of a vehicle crossing constructed to the requirements of the Nillumbik Shire Council to suit the proposed driveway and the vehicles that will use the crossing. The Responsible Authority must approve the location, design and construction of the crossing. Any existing unused crossing must be removed and replaced with concrete kerb, channel and nature strip to the satisfaction of Council. All vehicle crossing works are to be carried out with Council supervision under a road opening permit.

13 Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with a suitable surface to the requirements of Nillumbik Shire Council. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.

14 The development and use hereby permitted shall not cause nuisance or loss of amenity in and adjacent to nearby land by reason of the discharge of drainage.

15 Stormwater must not be discharged from the subject land other than by means of an underground pipe drain to the Council nominated point of discharge. The drainage system within the subject land must be designed to the requirements and satisfaction of the relevant Building Surveyor.

16 The owner/developer must install at no cost to Council an on-site detention device to restrict the property discharge to a flow equivalent to the pre-development design flow rate as approved by the Responsible Authority.

17 The on-site detention device must be designed by a qualified engineer and submitted to Council's Development Engineer for approval. Construction of the drainage system must be carried out in accordance with Council's specifications and under Council supervision.

18 A 12,000 litre rainwater collection tank must be constructed to collect rainwater from the roof of the building to be used for irrigating landscaping on the site.

19 Any construction works within drainage easements or road reservations are to be in accordance with plans approved by Council prior to the works beginning on-site.

20 The location and details of the business identification signs, including those of the supporting structure, as shown on the endorsed plans, must not be altered without the written consent of the Responsible Authority.

21 The business identification signs must be constructed and maintained to the satisfaction of the Responsible Authority.

22 No bunting, streamers and festooning shall be displayed without the prior approval of the Responsible Authority.

23 The business identification signs hereby permitted shall not include any flashing lights or moving parts and no iridescent or fluorescent colours or materials shall be used on the external surface of the signs. The colours to be used in the advertisements to be exhibited on the sign shall not result in any adverse impact on the amenity of the surrounding area.

24 No other advertisement or sign shall be erected or exhibited on the land except as permitted by or pursuant to the Nillumbik Planning Scheme.

25 Unless with the written consent of the Responsible Authority, all utility services including electricity reticulation shall be located underground and should be along the least environmentally damaging route to the satisfaction of the Responsible Authority.

26 The nature and colour of building materials employed in the construction of the buildings and works hereby permitted shall be harmonious with the environment to the satisfaction of the Responsible Authority.

27 The materials to be used in the construction of the buildings and works hereby permitted shall be of a non-reflective type to the satisfaction of the Responsible Authority.

28 This permit shall expire if the development and use are not commenced within two years and 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.

Mr Ian d'Oliveyra, town planner of Network Planning Consultants Pty Ltd. He called Mr Jim Higgs, traffic engineer of TTM Consulting Pty Ltd.

1 This is a review of the Nillumbik Shire Council's ("the Council's") failure to determine an application within the prescribed time for a 100 place childcare centre. The Application has been made by Mr and Mrs Rosenberg, operators of private child care centres who trade under the "Kinder Haven" name. The permit application was advertised and 28 objections and 2 multi-signature objections were received.

2 The Council advised that had it been in a position to do so, it would have refused the application on one ground:

That the proposal will significantly affect the amenity of residents in Kanandah Court by increased traffic volumes.

3 A number of objectors lodged a statement of grounds who were either unable to attend the hearing or who did not wish to make oral submissions. I have taken into account the concerns raised, which I summarise as follows:

i

Location of child care centre is too close to the existing pre-school in Main Road;

ii

If approved, proposal may impact upon the financial viability of other pre-schools and kindergartens in the area;

iii

Additional traffic may impact upon the safety of primary school children being picked up or dropped off in Kanandah Court.

iv

The number of cars parking in the street and traffic volumes are already excessive and congestion occurs during school drop-off and pick-up times.

4 I have inspected the site and surrounds including observations of the on-site carparking area of the Research Primary School ("the school") which I accessed from Main Road. I also viewed the carparking and access arrangements for the Research Maternal and Child Health Care Centre and Pre-School in Main Road. I undertook my inspection between 8:20am and 9:15am on a Monday morning.

5 At the commencement of the hearing, Mr Parsons, an original objector, sought leave to be joined as a party to this Application. He confirmed at the outset that his key concerns relate to the impacts of traffic and parking upon residential amenity.

6 On the basis of these concerns, none of the other parties at the hearing objected to the request. I therefore joined Mr Parson as a party to this proceeding under s.60 of the Victorian Civil and Administrative Tribunal Act 1998.

7 The subject land is irregular in shape and comprises 3 lots with a combined area of approximately 2934sq.m. The land has two frontages with abuttals of 39.32m and 29.29m to Main Road and Kanandah Court respectively.

8 The site slopes fairly steeply from Kanandah Crt towards Main Road, with a fall of about 7m over a distance of 90m. Native vegetation and some exotic plantings are scattered throughout the site.

9 Previously used as a church, the former church building remains in the centre of the site with vehicle access from Main Road. A second point for vehicle access to the site is available from Kanandah Court, currently obstructed by a row of bollards.

10 The following is a useful extract of surrounding conditions taken from the Council's submission:

The site is located approximately 170 metres from the Research shopping precinct and is in very close proximity to the Research Maternal and Child Health Centre, Research Primary School and the Research Pre-School.

The area surrounding the subject land is zoned Residential 1 Zone and is predominantly occupied with residential properties with detached dwellings other than for than for the Research Pre-School and the Research Maternal and Child Health Centre located opposite the subject land on Main Road.

The Researtch Primary School is located on the corner of Main Road and Kanandah Court. The school is within a Public Use Zone. The school site has vehicle access from both Main Road and Kanandah Court.

Main Road is designated as a Road Zone Category 1 and is the major arterial road servicing Research.

As described in the traffic report submitted with the application, on-street parking in the vicinity of the subject site in Main Road is not permitted due to double lines and/or "No Standing" signs that apply during school days between 8am and 4pm.

•

is a short cul-de-sac with abuttal to the Research Primary School.

•

has a single lane carriageway of about 8 metres in a reservation of 15.24m;

•

has unrestricted parking on the western side;

•

has restrictions on its east side between 8am and 4pm except for school holidays and weekends.

•

It is also noted that there is a variation in the alignment of Kanandah Court approximately 50 metres from the Main Road intersection.

11 This application is for a 100 place childcare centre.

12 The existing church building is to be demolished and a purpose built child care centre is to be constructed on the land together with a 23 space car park the latter which is to be located near the Kanandah Court frontage. Except for service vehicle access to Main Road, vehicle and pedestrian access is to be provided from Kanandah Court only.

13 Two outdoor play areas are proposed. The largest of these for 3 to 5 year olds is to be located between the building and Main Road while a smaller area for 1 to 3 year olds is proposed within the eastern part of the site.

14 The use is to accommodate children aged from 0 to 5 years during the proposed operating hours of 7am to 7pm Monday to Friday with up to 14 staff. It is intended that the use will offer long day care only. This entails regular attendance by children for at least 8 hours a day, which was said by Mr d'Oliveyra necessary to qualify for Commonwealth Government funding.

15 The building is contemporary in design and is to have timber clad walls and a flat roof constructed of colorbond. Although single storey, the building steps down with the fall of the land.

16 Permission is also being sought for two business signs on the land and the removal of vegetation.

17 The review site is included in a Residential 1 Zone ("R1Z"). As well as implementing the State and Local Planning policy frameworks, the purpose of the R1Z is as follows:

In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

18 The use of the land for a childcare centre requires a planning permit in the R1Z. Pursuant to Clause 32.01-6 a permit is also required for buildings and works.

19 The site is also affected by the Significant Landscape Overlay - Schedule 2 ("SLO2") and the Wildfire Management Overlay ("WMO"). Both overlays also require a planning permit for buildings and works in this instance. In the case of the SLO2, a permit is also required to remove, destroy or lop native vegetation.

20 Main Road is a Road Zone Category 1. Although not proposed in this instance, access alterations to this road would require a permit and referral to VicRoads.

21 The proposed advertising signs fall within Category 3 (High Amenity Areas) of Clause 52.05 of the Scheme. Business signs are included in Section 2 in the table to Clause 52.05-9 and thus require a planning permit.

22 Clause 52.06 (Car Parking) sets out requirements for carparking associated with particular uses. A childcare centre is not a use identified in the table to Clause 52.06-5.

23 Clause 52.06-1 states that where a use is not specified in the table to Clause 52.06-5, an adequate number of car parking spaces must be provided to the satisfaction of the responsible authority (or the Tribunal on review).

24 State planning policies relevant to this application include Clauses 11.03-6 (Social Needs), 14.01 (Planning for Urban Settlement), 15.04 (Air quality), 15.05 (Noise Abatement), 18.02 (Car parking and public transport access to development) and 19.03 (Design and Built Form).

25 Relevant local planning policies include Clauses 21.05-1 (Settlement and Housing - Objective 5), 21.05-4 (Economic Development - Objective 5), 22.09 (Signage Policy) and 22.12 (Neighbourhood Character Policy).

26 The Neighbourhood Character Policy applies to development in the Residential 1 zone. This policy implements the findings of the Shire of Nillumbik Neighbourhood Character Study 2000 (a reference document). It identifies the key characteristics and preferred future character for each of the identified precincts. It also provides guidance to assist in achieving development outcomes that respond to the preferred neighbourhood character of residential areas.

27 The site is included within the "Garden Court Precinct" (GC6) whose objectives are:

•

To maintain the existing mix of native and exotic vegetation including canopy trees and understorey.

•

To maintain and enhance the continuous flow of the garden settings and the openness of the front boundary treatment.

28 As an overview, local policies seek to ensure the sustainable use and development of land, particularly land set aside for rural pursuits or because of its intrinsic environmental value. The Municipal Strategic Statement identifies high rates of car ownership and a reliance on car travel, especially for journeys to work, given the size of the municipality and limited public transport options. The policies also seek to direct development to locations well serviced by established infrastructure and on land where environmental constraints such as steep terrain or flooding can be avoided.

29 Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering any application for permit under the scheme. Of relevance to the issues in this case are the State and local planning policy provisions referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area. Of relevance also, as provided for at Section 60 of the Act, is the Metropolitan Strategy, Melbourne 2030, it being a strategic plan adopted by the minister.

30 The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme.

31 There are a number of aspects of this proposal which were not seriously contested by any of the parties to this proceeding. These relate to the proposed signs, the removal of vegetation, the design and siting of the building and on-site activity. I agree that these aspects of the proposal do not give rise to any concerns that would otherwise militate against the grant of a permit.

32 The other matter which I consider important to mention at the outset, is the potential use of Main Road for direct access to the site, instead of Kanandah Court. Setting aside the need to consider the views of Vic Roads in relation to the use of Main Road, this alternative may or may not be an acceptable arrangement to that which is proposed. In any event, I am bound to consider the proposal before me and have not assessed the merits of this alternative.

33 The key issue for consideration are whether:

i

There is a need for the centre;

ii

The location of the site in a court is appropriate having regard to its residential setting and proposed access arrangements;

iii

The proposal will result in unacceptable traffic impacts;

iv

Carparking arrangements are satisfactory.

34 Concerns were raised by some objectors about the need for the facility and the potential economic impacts of the proposal, upon the viability of other local centres. Mr d'Oliveyra countered these arguments by contending that:

•

no evidence had been provided by objectors in support of these claims;

•

arguments based on competition are not a relevant planning consideration;

•

notwithstanding the above, the proposal is based on long day care arrangements for a broader age range as distinct from the sessional arrangements offered by other centres nearby (namely the Council owned pre-school) which usually caters for 4 to 5 year olds only;

•

his client believes that a need does exist in the area for long day child care but is not reliant on this argument in support of this proposal.

35 I will deal firstly with the issue of need. I have similarly not relied on need arguments in forming my view about this proposal. In a recent case for a childcare centre in Ballarat[1], I set out the principles that equally apply to this application which lead me to this conclusion. Relevant extracts from the Ballarat decision are as follows:

[33] Notwithstanding the above, it is a well established planning principle that the lack of need for a proposal, will rarely, if ever be a ground for refusing the grant of a permit. (Shell Co. of Aust Ltd v City of Frankston (1983) 8 APA 126 at 135; Vernia Pty Ltd v City of South Melbourne (unreported; editorial comment (1987) 1AATR2). On the other hand, the need for a facility, particularly where there are significant community benefits to be gained, may weigh in favour of the grant of a permit and in some circumstances may outweigh amenity considerations (Church of England Trusts Corp for the Diocese of Melbourne v City of Brighton (1983) 1 PABR 332 at 336).

[34] From the submissions made, I am unable to make any conclusive findings about the issue of need one way or the other. Thus, despite the principles set out in the above decisions, I have not based my findings on there being a need for the facility. In the absence of any demonstrated need I also find no reason to offer any concessions to the proposal in terms of any potential off-site amenity impacts that it may generate. I also adopt the authorities set out in the Shell and Vernia cases and cannot give any weight to arguments that suggest refusal of the application is warranted in the absence of a demonstrated need.

36 To this I add that no evidence has been provided to persuade me that the proposal would adversely impact upon the viability of other similar uses in the area. The starting point for the consideration of this issue is that the planning process should not be used to stifle competition. The exception to this is where a proposal by virtue of its impact upon the economic viability of other uses would adversely impact upon the interests of the community[2]. Importantly, I have not been provided with any evidence to support the view that such impacts, if they do exist, would be felt by and cause dis-benefits to the community.

37 At the broader level, the site's Residential 1 zoning is suitable for facilities of this kind. This was fairly conceded by the Council and has been accepted on numerous occasions in the past by various divisions of the Tribunal.

38 The arguments set out by residents and the Council against the suitability of the site essentially revolve around the site's court location where it was said that a higher level of residential amenity is to be expected. In this context, the proposed use of Kanandah Court for vehicle access to the centre and the potential for adverse amenity impacts were said to weigh against the proposal.

39 The Council argued that in these circumstances, the 'amenity bar' is much higher warranting caution when considering applications. A number of Tribunal decisions were referred to in support of this position, including J A Thompson Surveyors v Knox City Council & S Healy English (1998/37377) and Checkpoint Holdings Pty Ltd v Moonee Valley [2001] VCAT 319.

40 In principle, I agree with Council and residents that it is reasonable to expect higher levels of amenity in a court than for example on a main road location. This does not however automatically imply that proposals such as this will always be unacceptable in court locations. As always, each application will ultimately turn on the particular facts and circumstances at play.

41 In this case, I consider that there are a number of circumstances that weigh in favour of the site's use and development for a childcare centre. They can be broadly categorised as those features which influence existing levels of amenity in Kanandah Court and the features of the site itself. They are as follows:

a

The site is located within that part of the court which has and continues to experience non-residential activity. The review site was previously used as a church and is positioned opposite a primary school.

b

The primary school opposite is included within a Public Use zone.

c

Kanandah Court is located near a neighbourhood activity centre, about 120m away.

d

The site is located at the Main Road end of Kanandah Court as distinct from a location further into the court or within the cul-de-sac itself. The court's length of about 170 metres works in favour of the site's location such that activity at one end can occur without necessarily impacting upon residential amenity at the other.

e

The site has two frontages, one of which abuts a Road Zone Category 1. The site's configuration allows the dispersal of on-site activity away from the more sensitive environs of the court's interior.

f

The land is fully serviced with all necessary infrastructure and does not have any environmental constraints that might otherwise render it unsuitable for the proposal.

42 In summary, I find that the level of amenity in this court has been historically influenced by the institutional uses of the primary school and the former church. The proposed use is consistent with this pattern of land use and is likely to develop synergies with other community facilities nearby, including the primary school and the Maternal and Child Health centre. For example, multi-purpose trips are likely to occur, such as parents dropping off a child at the centre before taking a sibling to the primary school on their way to work. Such an outcome is entirely consistent with State and local planning policies seeking to maximise the use of established infrastructure in an area where development opportunities can often be constrained by the environmental capacity of available land and where a high reliance on private transport occurs.

43 I now turn to specific amenity considerations arising from the operation of the proposal.

44 Residents detailed various concerns about traffic conditions in Kanandah Court which are primarily related to the drop off and collection of school children. Although access to car parks on the school site is available from Main Road, residents submitted that many parents prefer to park kerbside in Kanandah Court. Given the existence of parking restrictions during school times on the east side of the court, parents park on the west side of the street along or near the review site's frontage. The availability of kerbside parking on the west side of the carriageway only, entails the need for vehicle to turn around. It was submitted that parents typically drive the full length of the court to turn around in the court bowl before parking.

45 The need for children to cross the road together with the dog-leg alignment in this location fuelled residents' concerns about the additional impact of traffic generated by the proposal upon pedestrian and motorist safety in Kanandah Court.

46 In response, Mr d'Oliveyra relied upon the traffic evidence of Mr Higgs. In giving his evidence, Mr Higgs concluded that there would be no unreasonable impacts upon the levels of safety, service or amenity in Kanandah Court, for reasons which I summarise below:

•

Existing traffic volumes are estimated to be approximately 350 vehicle movements per day (vmpd). School traffic was said to represent about 250vmpd with the balance generated by the 12 dwellings in the court.

•

The childcare centre would generate approximately 400 vmpd based on a rate of 0.75 vehicles per child.

•

The resultant traffic volumes (approximately 750vmpd) would be within the road carrying capacity of Kanandah Court. He likened the design characteristics of the court to those of an "access street" under Clause 56 of the Planning Scheme which has a daily carrying capacity of up to 1000vmpd.

•

The design of the Main Road / Kanandah Court intersection allows for safe and convenient vehicle movements into and out of Kanandah Court. In support of this view, he observed that a dedicated right turn lane in Main Road allows protected turns into Kanandah Court, with storage for up to 5 or 6 cars.

•

No unreasonable queuing and delays at the intersection are anticipated as a consequence of the proposal, with gaps in traffic flow along Main Road facilitated by the 'lollypop' crossing to the east and the round-about to the west.

•

Traffic generated by the proposal during the morning peak is likely to be dispersed over a period of two hours (7am to 9am) rather than concentrated to a lesser period of time (about half an hour) in the morning school peak.

•

Traffic associated with the collection of children at the centre is likely to be minimal during the afternoon school peak.

47 In forming my view about the issue of safety and traffic volumes, my observations of existing activity in and around Kanandah Court during the morning school drop-off times confirmed the submissions of residents and evidence of Mr Higgs. That is, parents drive the full length of the court, turn around in the court bowl and park on the west side of the road. Parents then walk with their children across the road to the school.

48 Interestingly, during my inspection I observed that this routine was followed by every car entering Kanandah Court to drop off school children.

49 I also observed:

•

cars travelling at a fairly low speed, commensurate with the low speed environment and design of the court including the dog-leg alignment;

•

where a choice of car spaces was available, cars tended to park on the up-hill side of the school's Kanandah Court entry, presumably for ease of access by children with school bags and the like;

•

two vehicles were able to pass adjacent to a third parked car;

•

two signs at the Kanandah Court frontage of the school advise "Deliveries to Main Road entrance" and "Stop. No vehicles beyond this point".

50 During my visit, up to 4 cars were parked kerbside at any one time but I accept that more cars may be parked at different times. This is likely to be the case during the afternoon collection times while parents may arrive early thus staying longer than during the morning drop-off time.

51 I also observed 1 car arriving to park in the review site, accessed from Main Road and another vehicle propping within the road reserve in Main Road (south side) at its intersection with Kanandah Court. Children were being dropped off at school in both instances.

52 I drove into the carpark on the school site from Main Road and observed that 7 out of 17 car spaces within the lower level car park were occupied.

53 From my inspection, the submissions and evidence, it is clear that the existing level of traffic and parking in Kanandah Court is largely attributable to the school (rather than from residents living in the court). This is despite the existence of what appears to be ample parking within the school grounds for the drop off and collection of children. The use of Kanandah Court seems to be an established practice, perhaps because classrooms are located closer to the court's frontage and the ease of access available from this location given the area's undulating topography. Whatever the reasons, I find it difficult to accept that this proposal should be refused because parents choose to park in Kanandah Court when other options for this to occur within the school grounds are available. I am also not persuaded that the additional traffic generated by this proposal is likely to make conditions unsafe for either school users or residents.

54 I would envisage that users of the childcare centre will, with young children of their own, have a high level of awareness about traffic and pedestrian safety issues. This is likely to encourage cautious driver behaviour including travel at low speed. Other factors which lead me to this conclusion include:

•

The need for cars to stop and start over a relatively short distance between the proposed driveway on the review site and the Main Road intersection;

•

The bend in the road which, from my observations, has the effect of slowing traffic speed.

55 In relation to increased traffic volumes I acknowledge that the degree of change will be noticeable. I do not however consider that this increase itself will unreasonably impact upon residential amenity. Before discussing my reasons for this finding, an important question is: "what is it about the traffic associated with the child care centre that might impact upon the residential amenity of Kanandah Court?" In short, I consider that potential amenity impacts boil down to the activity associated with cars coming and going and whether the number of vehicles leaving Kanandah Court will cause unreasonable queuing and delays at the intersection.

56 In forming this view, I am mindful that centre's operating hours will generally not co-incide with the times when residents most prize their peace and quiet, that is, at night, on weekends and during public holidays. Many centres also close for the duration of school holidays or only operate for a limited number of weeks.

57 Importantly, the site's location is such that vehicle movements will be largely limited to the Main Road end of the court. This means that vehicles travelling to or from the centre will pass a maximum of 5 dwellings. I note that one of these dwellings (No. 1564 Main Road) also abuts Main Road, No. 7 Kanandah Court has a high timber paling fence along much of its Kanandah Court frontage and the dwellings opposite at No. 6 comprise two units which abut the school. The fifth property (No. 8 Kanandah) has its dwelling well setback from the street (more than 10m) and is largely screened by planting in the front yard. Given these circumstances, I consider that child care centre traffic passing these dwellings will not unreasonably impact upon their existing amenity. I am also satisfied that the design and layout of the on-site carpark is such that cars will access the site directly, without needing to travel the full length of the court as occurs with cars associated with the school.

58 In terms of queuing in Kanandah Court at the intersection, I observed no more than 2 cars waiting at any one time to exit onto Main Road during my inspection. I agree with Mr Higgs that traffic volumes associated with the centre will be dispersed over a longer period of time in the morning compared with the more concentrated pattern of traffic associated with the school. This reflects the different operating characteristics of the two uses. In the afternoon, the collection of children is unlikely to co-incide with the school peak, given the characteristics of long day care.

59 I also accept Mr Higgs' evidence that there are adequate gaps in through traffic along Main Road that minimise delays and that the school crossing and roundabout are conditions that facilitated these gaps. Overall, I am satisfied that vehicle movements will be dispersed during both peaks so that no unreasonable queuing or delays at the intersection will occur.

60 A total of 23 car spaces are to be provided, comprising 9 spaces for parents (including 1 disabled bay) and 14 spaces for staff (ie. 1 space per staff member). I find that the carpark layout which includes a separate pedestrian path will provide a safe and functional environment. I note for example that the parent spaces are located on the north side of the driveway, which will facilitate their access by in-coming cars.

61 Based on my experience with other similar proposals including the staggered arrival of parents dropping-off or collecting children, I agree with Mr Higgs' evidence that the proposed number of car spaces will be adequate to meet likely demand at peak times without reliance upon kerbside parking.

62 In making this finding, I am also mindful of the staggered arrival of staff as is typical of these centres. In this case, I was advised by Mr d'Oliveyra that until 9:30am, 9 staff are on the premises with the balance arriving after this time. On this basis, I agree with Mr Higgs' suggestion that spaces 10, 11 and 12 could also be set aside for use by parents. I consider it appropriate to limit the use of these spaces during the morning peak only (until 9:15am).

63 For the reasons I have set out, the decision of the Responsible Authority is set aside. I will direct the grant of a permit.

[1] Lloyd v Ballarat CC [2005] VCAT 515

[2] For a discussion on relevant principles, see for example: Vernia Pty Ltd v City of South Melbourne (1988) 1 AATR 2; Shell Aust Ltd v City of Camberwell (1990) 6 AATR 52 at 57; Robert Pellicano & Co Pty Ltd v City of Springvale (1988) 1 AATR 291.