Mr Paul Chiappi of Counsel instructed by McHenry Foster, Lawyers

1 This is an Application for Review by Verraty Pty Ltd, Sunbay Pty Ltd and Norsan Pty Ltd against the decision of Melton Shire Council to approve a Child Care Centre at Lot C PS512809S Centenary Avenue in Melton.

2 Verraty Pty Ltd is the registered proprietor of 116-192 Centenary Avenue, which is land immediately to the east of the subject site. Sunbay Pty Ltd is the lessee of a child care centre currently under construction at 116 Centenary Avenue and Norsan Pty Ltd is the lessee of the aged care facility known as Willowbrae which is located immediately east of the child care centre at 116 Centenary Avenue.

3 The Applicants for Review represented by Ms Cincotta argued:

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There is an oversupply of child care centres in this area and to allow a further child care centre would not result in sustainable development or orderly planning.

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The proposal is a speculative development which is not sounded on any socio economic evidence to support a need for a further child care centre in this location.

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There is an access of child care centres within the suburbs of Melton, Melton South and Kurunjang given the projected population of the age group 0-4 and there will also be an access of child care centres within the Shire as a whole wants all approved centres start operating.

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Traffic and car parking impacts of the proposal on the "under construction" child care facility and aged care facility.

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Noise impact of the proposed use.

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Insufficient information on detailed planning and traffic evidence.

4 Ms Brown for the responsible authority argued the proposed use and development is one which is suited to the locality and there is a need for it; that is appropriate in the context of the surrounding neighbourhood. It claimed the only design concerned is the proposed paling fence along Greenhills Drive and this has been addressed by Condition 1 which requires this aspect to be improved.

5 Mr Chiappi on behalf of Hargreaves Two Pty Ltd argued that:

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All information necessary for the consideration of the application was lodged and the objection is misconceived.

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The Council's Engineering Department assessment of the proposal was soundly based and this claims there were no traffic impacts likely.

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The site is on a collector road and the traffic generated by the proposal is unlikely to have an adverse impact on the surrounding residential area.

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Car parking assessment by the responsible authority was sound. The number of car spaces is calculated using the same or similar form used in many other child care cases.

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The noise generated from the proposed use, whether it be from children playing or cars arriving and departing, is unlikely to cause any concern to any of the neighbouring properties.

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The objectors' complaint that the use will adversely affect the Willowbrae facility appears particularly unlikely given the location of the Kids Campus child care facility between the subject site and the Willowbrae facility.

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The properties on the western boundary have not objected to the proposal.

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Matters of need are not a defining element in the planning merits of this application.

6 It is proposed to erect a new building to contain a 100 child-child care facility with ancillary car parking at the front for 25 car spaces. There is also an opportunity for seven overflow car parking spaces on lawn if so needed.

7 The proposed building will be set back 42.17 metres from the street frontage to accommodate landscaping and the car parking. Access is via two crossovers, one inward movement and one outward movement. The building will also be set back about 11.16 metres from its northern (rear) Greenhills Drive abuttal. The building will have walls about 3 metres high and the roof will rise to a total height of 6.3 metres. Site coverage is about 25% (or 701 square metres).

8 There will be various play yards for different age groups located along the northern, eastern and part of the southern yards abutting the child care facility.

9 Vehicular and pedestrian access to the site is via the Centenary Avenue service lane.

10 Hours of operation will be 6.30am to 6.30pm.

11 The subject site is located on the northern side of Centenary Avenue in Kurunjang about 150 metres east of Lagarna Drive. The site runs in a northerly direction from Centenary Avenue through to Greenhills Drive, a recently constructed road.

12 Properties to the west comprise single storey detached dwellings with related garages facing both Centenary Drive and Greenhills Drive, and a large building currently under construction with approval for use as a child care centre to accommodate 120 children. There will be two single storey attached dwellings erected to the rear of it fronting Greenhills Drive.

13 Centenary Avenue is a busy, collector road with single lane traffic in each direction. A wide nature strip is located to the north of the current carriageway is and then there is provision for a service road. Access to this site and adjoining sites are via the service road.

14 The subject site and all surrounding properties are zoned Residential 1 under the Melton Planning Scheme. The relevant purposes of this zone are:

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

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

15 A permit is required under Clause 32.01 to use land for a child care centre, and a permit is required under Clause 32.01-6 to construct a building or carry out works for a Section 2 (Child Care Centre).

16 There are various planning controls and policies of relevance in this application including:

• Clause 11 Principles of Land Use and Development Planning - Settlement and Social

• Clause 21 Municipal Strategic Statement

• Clause 52.06 Car parking

• Clause 65 Decision Guidelines

17 At the review hearing all parties tabled detailed written submissions and supplied maps of the locality and general area, a copy of the approved plan for the development at 116 Centenary Avenue, other VCAT Decisions concerning child car facilities, and an aerial photograph. The Tribunal advised the parties it had viewed the site on the day before the review hearing.

18 After hearing all submissions I affirmed the responsible authority's decision and directed the issuance of a permit in accordance with the Notice of Decision dated 29 October 2004. There was a need to make a minor amendment to Condition 5 by the deletion of two word which were clearly inserted in error.

19 Ms Cincotta argued there was no need for a further child care facility in this location having regard to her client's development currently under construction next door to this proposal, other child care facilities in Melton and Kurunjang, and the availability of other services in Melton in general. She provided various statistics which covered the Kurunjang area to argue that there had been a large number of approvals and if these were all taken up, the supply of child care facilities would exceed the demand.

20 My concern about this argument was the statistics provided did not fully identify the needs of the entire neighbourhood. Rather they referred to one sub-district, ie. The Kuranjang area north of Centenary Avenue. As the site was on the southern border of the Kuranjang statistical area it was not possible to determine the complete picture of childcare needs, even if this is a critical issue.

21 Whilst need can be a relevant consideration as part of the balancing of the planning merits it is rarely the defining issue in determination of the merits of a non residential use in a residential area. I do not see it an essential requirement in the overall assessment of the application and accordingly I have followed the decision in Shell Company of Australia v City of Frankston (1983) 8 APA 126 at 135.

22 This is not to say need should be ignored. Need is more likely be a critical consideration if the use was of demonstrated critical importance to a neighbourhood and there may be some clear adverse impacts of the proposal, but such may be outweighed because there was no other opportunities to provide that facility in the neighbourhood that it is intended to serve. However I do not consider that is the case in this instance rather the matter can be determined on the basis of first principles.

23 In this case I consider the primary considerations are whether the amenity of the neighbourhood will be impacted by this proposed use and development and whether from a locational point of view it is a suitable facility in this residential zone.

24 The other concern I have with Ms Cincotta's argument is that there may have been permits issued throughout the Melton and Kurunjang area and these permits may result in a theoretical over supply of child care places, although that does not necessarily mean all of the permits are utilized. Some childcare facilities may close down, relocate or rationalise according to market and funding issues which are well beyond outside the scope of enquiry in this planning matter.

25 I consider the proposed use and development is appropriate for the location having regard to the following:

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The site's location on a busy arterial road which contains a service road and has access to a bus service.

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The site's close proximity to other non-residential uses such as another child care facility next door and primary and secondary schools further to the east, within walking distance in Centenary Avenue.

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The lack of an apparent amenity impacts on adjoining residential properties.

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Adequate parking and drop-off and pick up facilities within the site.

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The accessibility to the site from a service road.

26 I advised the parties that I did not see much difference in having one large (ie. 220 child place facility) or two facilities providing 120 and 100 place child care centre side by side. I also acknowledge Mr Chiappi's statement that it would seem a good planning outcome to have a grouping of non-residential uses together or in close proximity in the context of this particular site context. In fact, I see opportunity for the sharing of trips by parents or grandparents dropping off children at the child care facility and nearby schools. It is also located on a bus route which may also service the use.

27 Ms Cincotta raised concerns about potential noise impact on her clients' properties but provided no detailed evidence to demonstrate that noise from either the children's activities or car parking and traffic impacts would be any different to her clients' property. This is particularly evident having regard to the site's proximity on a busy arterial road and abuttal with a similar use.

28 Ms Cincotta also raised concern about the likely increase in activity by the introduction of this use and indicated that this would tip the balance against the proposal having regard to other uses along the service road of Centenary Avenue. I note the Council's Traffic Engineers supported the means of access and the car parking rate for the proposed use and development.

29 I remarked at the hearing that I considered the internal access on the site appeared to be equal to if not better than that undertaken by Ms Cincotta's clients. I consider that this service road could comfortably cope with another 120 vehicles or so per day having regard to the amount of traffic currently using Centenary Avenue and the method of access via a property constructed service road.

30 I did not have any problem deciphering the purpose of the application, the extent of development on the site, future landscaping areas, car parking and access details.

31 At the conclusion of the hearing Mr Chiappi sought costs against the Applicants for Review. I provided some brief comments about the merits or otherwise of the request and I reserved my decision on that matter leaving it to Ms Cincotta to provide a further submission on this issue.

32 According I consider that this is an appropriate location to allow a non-residential use such as a child care facility and I am satisfied that it will serve the local community needs. I consider the responsible authority's decision was soundly based and should be affirmed.