The responsible authority's decision is affirmed. No permit shall issue for a child care centre at 42-44 Westley Street, Carrum.

Mr Peter Newman Town Planner of PN Planning Consultants. Mr Newman called evidence from Mr Don Robertson Traffic Engineer

Mr Richard Umbers, Town Planner of Peninsular Planning Consultants

Mr Darren Hutchinson, Ms Robyn Lewin, Ms Irma Shelton, and Ms Elaine McCormack in person

1. This is an application for review by Symbiotic Investments Pty Ltd[1] concerning the failure of Kingston City Council to determine an application for permit for a child care centre at 42-44 Westley Street, Carrum. Despite a very long application process it took quite some considerable time for the Council to advise the applicant of its position in this application, but ultimately its decision was to oppose the application on the following grounds:
   • (a) The proposal would detrimentally affect the amenity of the neighbourhood.
   • (b) The proposal would prevent the orderly and proper planning of the Residential 3 Zone.
   • (c) The proposal would have an adverse effect on the amenity of an established residential neighbourhood.
   • (d) The proposal would detract from the visual amenity of the locality and the streetscape.
   • (e) The proposal would cause traffic congestion in a residential street.
   • (f) Inadequate provision has been made for off-street parking to cope with the demands of the proposal.
   • (g) The proposal is inconsistent with the relevant provisions of the Kingston Planning Scheme.
2. Objectors supported the responsible authority's decision but also raised concern about the adequacy of car parking, traffic congestion in Westley Street and the potential traffic congestion at the intersection of Westley Street and McLeod Road.
3. Mr Newman, on behalf of Symbiotic Investments, submitted:
   • there is a demand for child care centres in the locality
   • the proposed facility will offer a valued choice
   • the site has favourable site or locational considerations and compares favourably with others in the Kingston locality
   • a child care centre is an appropriate use in a Residential 3 zone
   • the car park can be screened by conventional landscaping treatment as used on other child care facilities in the City of Kingston
   • traffic and parking impacts of the reduced proposal are acceptable
   • the proposal will not have an adverse impact by reason of noise, garbage, storage collection and privacy concerns
4. He also argued the site including an adjoining right-of-way can be considered as part of the subject site in the application despite the land not being in the ownership of the applicant.[2]

1. It is proposed to develop a new building for a 60 place child care facility. Initially the application sought approval for an 85 place child care facility but this has subsequently being reduced. The building will be two storeys with administrative and staff areas including a large balcony at first floor level. Ground floor would comprise six discreet child care rooms for different aged children, kitchen, WC and storage facilities.
2. The total height of the building is 7.3 metres to the roof pitch although at the front it is about 5.5 metres to the roof pitch at ground level.
3. Fourteen car parking spaces are provided along the frontage of the site with vehicular access via a southerly ingress point that predominantly utilises a southern right-of-way and there is a northern exit point. A 500mm wide garden bed is provided along the frontage together with a 1.2 metre high metal fence.
4. The application plans also showed various play areas including shade sails extending beyond the title boundary of the property into the adjoining right-of-way. The applicant intends to seek to purchase the southern right-of-way from the responsible authority.
5. Hours of operation proposed are 6.30am to 6.30pm Monday to Friday.
6. Building materials are contemporary vernacular with face brickwork, rendered first floor walls, colorbond grey roof and windows of light sage and grey colour. Driveways will be of concrete.

1. The subject site is located on the western side of Westley Street about 40 metres north of the McLeod Road in Carrum. It is regular in shape with a frontage of 24.38 metres (excluding the right-of-way) or 27.38 metres including the right-of-way and a depth of 56.31 metres. Land area is 1372.8 square metres excluding the right-of-way. The site is currently vacant with all vegetation removed.
2. Land to the south comprises four properties that front and have access to McLeod Road although the property on the corner of McLeod Road and Westley Street comprises two single storey dwellings.
3. Land to the north comprises a two storey detached dwelling with a large carport in front of the dwelling.
4. Land to the west comprises two properties that have access to Riversdale Avenue with detached dwellings.
5. Land opposite on the eastern side of Westley Street comprise detached dwellings.
6. Westley Street comprises about 50 dwellings in a no through road. It is a tree-line street with a combination of relatively old modest detached houses with more recent dwellings/or dwellings having had substantial alterations and extensions to them. There is also a recent dual occupancy development currently under construction. In many respects from both a neighbourhood character and functional point of view, it is a relatively intact conventional quiet middle ring suburban street.
7. Westley Street has a road pavement width of about 7.05 metres, wide enough for parking on both sides and a vehicle to travel along the middle. It heads in a north/south direction with its northern extremity terminating at an elevated bund wall that forms the southern banks of the Patterson River.
8. Vehicular traffic is low as there is no through traffic, and therefore it basically serves dwellings in the street only. There is some minor exception where an occasional driver may park at its northern extremity to walk along the Patterson River. All access to Westley Street is from the south at McLeod Road.
9. McLeod Road to the south is a Road Zone Category 1 and carries substantial traffic linking between Nepean Highway and the Carrum Activity Centre and the Frankston Freeway and Thompsons Road. Thompsons Road is a continuation of McLeod Road.
10. Patterson Lakes, about 500m metres to the east of Westley Street, has boat launching and mooring facilities, restaurants, shops, licensed premises and higher order residential accommodation.

1. The subject site an all surrounding properties are zoned Residential 3 under the Kingston Planning Scheme. The relevant purposes of the zone include:
   • 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.
2. A permit is required under Clause 32.06-1 of the Planning Scheme for use and permission is required under Clause 32.06-7 to construct a building or construct or carry out works. A Business Sign requires a permit under Clause 52.05-8.
3. The subject site is located in a Special Building Overlay area. This requires a building to be erected above RL 1.96 AHD. The plans show compliance with this requirement.
4. There is no expressed car parking provisions in Clause 52.06.
5. There are various State and Local planning policies[3] but there are no specific local planning policies concerning child-care centres or non-residential uses in residential areas.[4]

1. At the review hearing each party made various oral submissions with detailed written submissions supplied by Mr Newman and Mr Umbers. I was provided with photographs of the subject site and locality, extracts of the Planning Scheme, locality plan, and a map showing various other child care facilities in the southern section of the City of Kingston. Following the review hearing I undertook an inspection of the subject and site and neighbourhood, and other child care facilities nominated by Mr Newman.
2. At the commencement of the hearing Mr Newman sought leave to substitute the name of the applicant to Symbiotic Investments Pty Ltd. There was no objection to this change and was duly substituted[5].

1. Having considered all submissions and viewed the site and other child-care facilities, I consider the responsible authority's decision was correct and accordingly will be affirmed. My reasons are focused on the orderly planning and in particular an inappropriate use in this small, relatively quiet residential street.
2. Whilst there were other grounds relating to adequacy of car parking and traffic congestion I consider these are of secondary concern and in may not have warranted rejection of the application on those grounds alone.
3. Similarly, the reliance on the disused right of way to the south is no bar to the use of this land in principle but there may be other issues unrelated to the planning merits that prevent its use.

1. I consider this proposal principally failed because it would have an adverse impact on the orderly and proper planning of the area. Essentially, this is a small residential street with no through traffic. The introduction of this non- residential use into a uniform residential area will have an adverse impact on neighbouring and nearby properties and introduce a discordant element and use in the street.
2. I agree with Mr Umbers' submission in Section 7.1 that in appropriate circumstances a child care centre can be located in a Residential 3 zone. Such a use is consistent with the purposes of the zone and is a type of use primarily focused at servicing local resident's needs. I also agree that it would be more appropriate to see a child care facility in a busier, more accessible location, whether that be McLeod Road, another collector road or even on a corner site where there is less likely to be interference with residential only activities.
3. I am also concerned the child-care facility will replace a dwelling use with little direct benefit to neighbours in the street. It will have little relationship with its neighbours. Its form and function will be visibly different, and whilst the applicant provided a detached house appearance, it is in relative terms, a large building extending across a large proportion of the frontage of the site with a relatively large open car park and little landscaping between the front boundary and the car access. The placement of this relatively large building with a large open car park is not characteristic of this relatively uniform residential street that has single dwellings with conventional front landscaped settings.
4. I acknowledge there are child-care facilities throughout metropolitan Melbourne and Kingston in particular that may have similar features, but these are more likely to be in locations where the building and activities have a more mixed or robust character and can better absorb the different activity and building form. Alternatively, they are smaller in scale or have features, such as complementary landscaping that assist with integration into their respective neighbourhood.

1. I accept the evidence of Mr Robertson that Westley Street has, in traffic terms, the environmental capacity to accommodate the increase in traffic movements generated by the proposed use. I also accept his evidence that the intersection of McLeod Road and Westley Street has the capacity to treat all turning movements. Whilst the Westley Street road reserve has the capacity to cater for this number of vehicles and the site to provide adequate inward and outward traffic movements and it seems logical from an operator's point of view that this issue might have been more critical had the location attributes of the site be more favourable.
2. I acknowledge Mr Robertson's suggestions for improvements to the intersection of Westley Street and McLeod Road that would improve traffic conditions. The loss of on-street car parking in McLeod Road may be a dis-benefit and draw local resident opposition. However, these matters are well beyond the scope of my enquiry and in many respects would need a proper investigation by Council and possibly VicRoads Engineers before any implementation takes place.

1. I am satisfied that the quantum number of car parking spaces is satisfactory for a 60 place child-care facility. My major concern is the extent of car parking across the site that seems to be quite contrary to the usual landscaping treatment found in the remainder of Westley Street. Most houses in Westley Street are set back in the order of 7 to 9 metres and contain various canopy and understorey shrubs, and ground covers or lawns commensurate with a relatively conventional residential suburb. I consider this treatment is alien to the neighbourhood and does not make a satisfactory contribution to the character of the area.
2. Whilst the property to the immediate north that has a large open carport and a high fence with wide landscaping/lawn area between the front boundary and the car parking area may be less than typical of the remainder of the street, it still has a wide landscaping area in front of the parking area.

1. Mr Newman referred me to a number of other sites within Kingston that have little or no front landscaping or car parking areas in the front. The facilities that I visited had different site contexts and therefore comparison was of little assistance to me.
2. Probably the closest site at 106 McLeod Road contained a far more modest building but the landscaping as more extensive and tended to blend in better with its site context. Whilst being set amongst residential uses it was on a busier road categorized as Road Zone -Category 1 and both the car parking and its built form better integrated with adjoining neighbouring properties.
3. I also viewed other sites including Elite Petites, a 40 place child-care centre at 5 Hallmark Road in Mordialloc, and while those premises had a similar fence to the one proposed with a relatively narrow landscape treatment the site context was very different. The site abutted parkland and a nearby community drop-in centre that was a focal point, in addition, it was located on a road that served as a collector road to this new estate.
4. Furthermore, Elite Petites is smaller and contains a much smaller parking area. Whilst the narrowest point of the landscaping is about 800mm to 900mm other parts of it are much wider and it tends to flow into the adjoining parkland.
5. I also examined the child-care facility at the end of Egret Drive, located behind the McDonalds convenience restaurant at the corner of Wells Road and Edithvale Road and a medical centre on Edithvale Road in Aspendale Gardens. The site context is vastly different to this site and in fact is not in a dead-end street but rather it can provide access to both Edithvale Road and Wells Road.
6. The Lochiel Avenue site also has a different context. It is also located on a collector road with a bus service. It is not a no- through road, rather there has been various road treatments to slow vehicles down.

1. Both Mr Newman and Mr Umbers referred to another child-care facility in Rye[6]. Whilst I agree that these two sites have different characteristics, I tend to agree with the point made by Ms Rickards in paragraphs 31and 31 where she said:
   1. Whilst the site is an adequate size to provide for the proposed use and to accommodate an appropriate number of on site car spaces, the proposed built form on the site is in keeping with the single storey residential development in the area and Maori Street can potentially accommodate the increase in traffic that would be generated by the proposal I am not satisfied that this is the appropriate location for this use.
   2. The proposed use will bring a sudden doubling of traffic into the street that would not be generated if there were an increase in residential development. Whilst the commercial nature of the activity confines its operation between Monday and Friday and does not occur on weekends it will still have a marked impact on the amenity of the residents in the area. At present they are subjected to a very small amount of traffic generated by the nearby residential dwellings I do not consider that a doubling of traffic generated in the area is something that the residents could or should expect.

1. There was also detailed debate about the appropriateness or otherwise of acquiring the laneway for this site. I am satisfied that the laneway can be included in the application site and it seems to be consistent with the findings of Member Martin in Octopus Media Pty Ltd v Port Phillip City Council[7].
2. Based on the information presented at the hearing, the Council is now embarking on a consultation program with all abutting landowners and about an interest in purchasing part or all of this laneway. Whilst the applicant may have instigated this process there is no guarantees that part or all of the right-of-way will in fact be sold to the applicant.
3. This issue is not critical in my determination other than to note that if a permit had issued there would be prospect the applicant may need to seek amendment to the permit to reduce the size of the site and possibly the building, delete at least two car parking spaces, and alter the vehicular access.

1. For the abovementioned reasons the responsible authority's decision is affirmed. I consider the placement of a 60 place child care centre in this relatively small no through road set amongst residential properties would have an adverse effect on the orderly and proper planning of the area, it would detract from the amenity of the residential area.
2. I acknowledge Mr Newman's comment that if the subject use was located on a corner, such as the corner of McLeod Road and Westley Street, it may be more acceptable, but that is a hypothetical argument in this instance because corner sites at Westley and McLeod Road have been redeveloped with dual occupancy development.

[1] Pursuant to Section 79 of the Planning and Environment Act 1987

[2] See Octopus Media Pty Ltd v Port Phillip City Council (Red Dot)[2008]VCAT 313

[3] Clauses 11, 12, 14, 18.02, and 19.03

[4] Decision Guidelines are in Clause 65

[5] Pursuant to section 64 of Schedule 1 of the VCAT Act 1998

[6] Australian Child Care Developments Pty Ltd v Mornington Peninsular Shire Council [2006] VCAT 878

[7] Octopus Media Pty Ltd v Port Phillip City Council (Red Dot) [2008] VCAT 313