Mr L. Barry, Mrs J. Tyres, Mr S. Hill (on behalf of the CFA, Narre Warren North brigade).

Application under s 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit.

1

The review site is situated on the north-eastern corner of Crawley Road and the Narre Warren North Road at Narre Warren North. It is irregular in shape with a frontage to Crawley Road of approximately 44m and a total site area of 1991m2. The land is improved by a single storey cream brick dwelling which is set back 10.8m from the Crawley Road frontage.

2

The subdivision pattern in this area is characterised by large allotments, generally in the order of 2000m2. Crawley Road serves as a collector road for the subdivision, and carries approximately 2400 vpd. Narre Warren North Road is a primary arterial road carrying significant traffic volumes. At the point these two roads meet, the Narre Warren North Road is undivided with sheltered left and right turning lanes. Crawley Road provides access to approximately 235 residential allotments.

3

The Responsible Authority described the present application as follows:

The development proposes to convert the existing dwelling into a Child Care Centre. This involves the following building modifications and additions:

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The retention of the main core of the dwelling with the demolition of a number of internal walls and the incorporation of the garage within the building form.

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An area of 26m2 added to the eastern side of the dwelling, reducing the side setback from 8.8 metres to 5.1 metres.

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An addition of 103m2 to the northern side of the dwelling with pitched roof to match that of the existing dwelling.

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The construction of a new building which is to adjoin the proposed addition along the northern side of the dwelling. This new building has a floor area of 233m2 and extends north for a distance of 23.7 metres with a side setback to the east of 1 metre. This addition will not include any windows or doors on the eastern elevation, with all windows and doors provided on the west side of the building. The building can only be accessed via an external ramp. The proposed building has a flat roof with a maximum height of 5.1 metres, while the wall height along the eastern boundary varies between 3.2 and 3.9 metres.

The proposed Child Care Centre has a total floor area of 604m2 and includes four playrooms with staff areas, kitchen facilities, staff rooms and amenities.

The main external play area is located on the west side of the building. A secondary play area is located on the eastern side of the building and as such, acoustic fencing has been proposed along the abutting section of the existing 2 metre high paling fence along the eastern boundary.

The child care centre will cater for a total of 80 children including 15 babies, 15 toddlers, 25 3-4 year olds and 25 children aged 4+ in the kindergarten classroom.

It is proposed that the centre will operate 6.30am-6.30pm on weekdays. The applicant has indicated that the Centre would be staffed by 10 carers and one manager/administrator. It is anticipated that three parents will be required to assist at the kindergarten sessions.

Nineteen (19) car parking spaces have been provided on site. Eleven of these spaces have been designated as staff parking, six of these being tandem spaces located in the area between the western side of the building and the side boundary. Another four of these spaces are located along the Crawley Road frontage, next to a disabled parking bay. Four car parking spaces along the Crawley Road frontage, opposite the entrance to the building, have been designated as drop off bays. Three unspecified car parking spaces are located along the eastern boundary.

The car park is serviced by a separate entrance and exit points. The entrance is located approximately 20 metres east of the intersection of Crawley and Narre Warren North Roads while the exit is located approximately 35 metres east.

A 2 metre wide landscaping strip is to be provided along the frontage and between the car park and the eastern boundary while the existing front fence is to be retained.

4 Notice of the application was given and in all, 99 objections were received. The application was accompanied by a traffic report prepared by Andrew O'Brien & Associates, traffic engineers. The objectors also commissioned a traffic report from John Piper Traffic Pty Ltd. All this material, together with the objections, was considered by the Responsible Authority on 13 December 2005. It resolved to issue a Notice of Refusal based on the following grounds:

1. The proposal is inconsistent with Clause 22.08 of Casey Planning Scheme regarding the location of child care centres.

2. The proposed child care centre would be located in an area isolated from existing or planned neighbourhood nodes.

3. The proposal has potential to detrimentally affect traffic safety along Crawley Road.

4. The proposal would have adverse impact on the amenity of the residential area.

5. The proposed development will not positively contribute to the orderly and proper planning of the area.

5 The applicant now seeks a review of the Council's decision.

6 On the hearing all parties tabled and read written submissions. Mr Barry called evidence from Mr P Edwards, a Traffic Engineer, who spoke to a written statement of evidence. It is unnecessary to repeat all that was said. Ms Scullion expanded upon the grounds of refusal as did the objectors. Mr Cuma attempted to refute the case put against him. He argued that:

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a child minding centre was an appropriate use in the Residential Zone;

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the main road location was appropriate and met planning scheme requirements;

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car parking and traffic treatments were satisfactory;

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the character of the neighbourhood would remain unaffected;

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the proposal would have a limited impact on neighbourhood amenity;

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there was a demonstrated need for additional child minding places in Casey.

7 Having considered all the material before it, the Tribunal has come to the conclusion that the Council's decision to refuse this application was correct. The proposal has a number of practical shortcomings. Moreover, it is not supported by policy. The Tribunal turns now to summarise its various findings.

8 Two Council policies are applicable to this proposal, namely, the

Non-Residential Uses in Residential Areas policy and a specific document relating to Child Care Centres. Both require that child care facilities should be located adjacent to similar non-residential uses, thus reducing traffic movements by allowing multi-purpose trips. Policies also require that:

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any affected roads are capable of carrying anticipated traffic volumes;

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the development and use will have a minimal impact on the area with respect to building design, traffic and amenity.

9 Mr Cuma relied on the fact that the review site was close to community facilities including a fire station, an aged care facility and a veterinary clinic. However, these are not the type of uses that are likely to generate multi-purpose trips in conjunction with a Child Minding Centre. The nearest primary schools are between 800m and 1000m away.

10 In terms of amenity, it is difficult to escape the conclusion that the location of a Child Minding Centre at the gateway to a residential area with a high level of amenity would not detrimentally affect the appearance of the neighbourhood. For example, the plans display a proposal to locate the majority of the car parking spaces in the front setback area behind two narrow landscaping strips. Two exit/entry points would further mar the continuity of the streetscape. The provision of such facilities is totally inimical to the appearance of Crawley Road. Moreover, the proposal to extend the building down the eastern boundary adjacent to the capacious rear yard of Mrs Tyres' property is quite alien to the established pattern of building in this neighbourhood, and would undoubtedly cause a loss of amenity.

11 For all those reasons, the Tribunal believes the proposal fails to meet the basic requirements of the policy framework.

12 The reports of Mr O'Brien and Mr Edwards were remarkably similar. Mr O'Brien however was not called by Mr Cuma to give evidence. The conclusion presented by Mr Edwards read as follows:

The proposed childcare centre at 2 Crawley Road, Narre Warren North is considered unsatisfactory from a traffic and parking perspective.

The projected traffic from the site (approximately 300 vehicles per day; 70 vehicles movements in the peak hour) would lead to significant congestion at Crawley Road/Narre Warren North Road intersection.

Motorists accessing and reversing out of the parking spaces east of the entrance will force other motorists entering the site to prop on the driveway or onto Crawley Road which is undesirable and likely to lead to localised congestion and a potential safety hazard.

Similarly vehicles queued along Crawley Road will limit access into and out of the site, again, leading to localised congestion and potentially creating a safety issue with motorists potentially performing unsafe manoeuvres to enter and/or exit the site.

In light of the above, it is considered that the proposed childcare centre is not appropriate based on the existing operating conditions along Crawley Road. Major intersection capacity improvements at Crawley Road/Naree Warren North Road are required should this development proceed.

13 It seems to be common ground that, during morning peaks, traffic seeking to exit Crawley Road creates queues that extend back beyond the access and egress points proposed by this application. The objectors expressed concern that a gridlock situation would develop whereby cars wishing to exit the Child Minding Centre after dropping off their children would be unable to do so by virtue of vehicles waiting to exit Crawley Road. Mr Edwards put it this way:

However, as discussed, particularly in the AM peak, vehicle queues of 4 to 7 vehicles regularly form. The length of this queue is approximately 20 to 40m. The proposed entrance and exit to the centre are approximately 25m and 45m east of GIVE WAY line marking in Crawley Road at Narre Warren North Road.

As such, this may result in localised congestion as westbound motorists wishing to enter the centre are unable to do so due to queued vehicles, these motorists may elect to travel on the wrong side of Crawley Road to enter the site creating a potentially hazardous situation. Similarly vehicles exiting the site and heading west (the predominate movement) may be forced to queue within the car park and across the exit driveway due to existing vehicle queues along Crawley Road. Again, this would result in the degradation of the internal operation of the site and surrounding road network.

Fundamentally, the performance operation and safety of vehicles accessing the site is compromised by the existing traffic conditions at Crawley Road/Narre Warren North Road. This situation will be exacerbated by the additional traffic generation by the proposed childcare centre.

14 Mr Cuma tried in vain to dispose of this argument. It is not enough to suggest that alternative routes may become available in the future. The fact is that the intersection provides the most direct route to the site, and it would be poor planning to allow a gridlock situation to develop.

15 Mr Hill made an interesting submission on behalf of the Narre Warren North Urban Fire Brigade whose headquarters are situated on the opposite side of Narre Warren North Road. Mr Hill expressed concern that traffic congestion at the intersection during peak times may impede members from reaching the fire station to answer a call out, or hinder fire trucks from attending a fire scene if it was necessary to use Crawley Road. While the chances of such an occurrence are no doubt remote, the Tribunal accepts that such a coincidence of events could occur. In view of the Tribunal's conclusions on other issues, it is unnecessary to further consider Mr Hill's submissions.

16 Ms Scullion tabled two recent decisions relating to proposals to develop Child Minding Centres in Narre Warren North. These were:

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Love & Associates v Casey CC, Edwards & Ors [2000] VCAT 2395.

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Applegrove Pty Ltd v Casey CC [2006] VCAT 208.

In each case the Council's decision to refuse the application was affirmed by the Tribunal.

17 In Applegrove, the Tribunal said this:

34 The policy for non-residential uses in residential areas (Clause 22.08) is clear about clustering such uses in planned neighbourhood nodes, and such nodes should be accessible to its intended catchment area by cycling, walking or public transport, providing opportunities for personal interaction and surveillance from public areas.

35 The review site is not located in such a neighbourhood node. Council advised that apart from the regional activity centre at Fountain Gate, located approximately 2.8 km from the site, the other two approved 'neighbourhood nodes' is along Narre Warren North Road, which is already developed with a range of non-residential uses in churches, an aged care facility, a school and a business complex, and the approved 'node' at the corner of A'Beckett and Narre Warren North Roads.

36 I agree with Council that the location of the site away from such a node and in the midst of a residential area does not meet the locational criteria for a non-residential use pursuant to Clause 22.08.

38 I accept that a child care centre will be of community benefit to a new residential area, where young couples and young families are likely to be a major component of this community. That is why the Casey Planning Scheme has specific provisions for the planning and development of new communities and new areas in a planned manner. A child care centre located in accordance with the stated policies and overall development strategy in a planned manner is truly proper and orderly planning to reap nett community benefit.

19 Both comments are equally applicable in the present circumstances. It is quite apparent that this proposal does not meet the locational preferences expressed in Clause 22.08 of the Casey Planning Scheme. While that in itself is not fatal to the proposal, it is a weighty factor against it.

20 Mr Cuma tabled a number of previous Tribunal decisions standing for the proposition that a Child Minding Centre was an appropriate use to place in the Residential Zone. He also tabled statistics demonstrating that there was a shortfall of child minding places available in the Casey municipality.

21 The Tribunal does not dispute either claim. However, any such facility must be located in a way that ensures that the sort of issues with which the Tribunal has dealt are handled satisfactorily. That is simply not the case here. As to need, Casey is a very large municipality. The fact that there is a shortfall in child minding places within the municipal district does not necessarily mean that there is a shortfall in Narre Warren North. In any event, need is never determinative of cases such as this. It is simply a factor which, in appropriate circumstances, may assist an applicant's case.

22 In the Tribunal's view, the Council's decision to refuse this application should be affirmed. The Tribunal will order that no permit issue.