A permit is granted for the use and construction of a child care centre in accordance with the endorsed plans at 27 Medway Street Box Hill North. The permit must contain the following conditions:

Before the use and/or development starts, or vegetation is removed, amended plans (three copies) shall 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 be generally in accordance with the plans submitted with the application but modified to show:

a) Redesign of the front façade and west facade generally as shown on drawing tp06 Revision E, amended 9 May 2005;

b) Suitable flood prevention measures designed in consultation with Council's Drainage Engineers to prevent the basement car park flooding;

c) All windows of the children's rooms to be acoustically shielded through double glazing or other measures and the provision of acoustic fencing to the side and rear site boundaries in order to minimise off-site noise impacts; in accordance with the recommendations of a qualified acoustic engineer as set out in a report required by condition 2;

d) The external store proposed on the west elevation to be an unroofed, fenced area only;

e) The headroom at the entrance to the basement garage to be 2.2 metres;

f) The boundary fence to be graded down at the site frontage to a height of 1.15 metres;

g) The designation of staff and drop off/pick up car spaces in accordance with condition 16;

h) The size and location of signs indicating that the basement car park is for staff only, and car spaces in the frontage are for dropping off and picking up children and other visitors;

i) The provision of screening adjacent to the laundry area to prevent direct views into the kitchen window of the dwelling on the property to the west;

j) The southern end of the ramp into the basement designed to provide a suitable transition with the car park floor to enable access to car spaces 3 and 4;

k) A landscape plan in accordance with condition 4 to show:

•

The shrubs proposed on the west side of the accessway to be low scale to improve visibility as motorists exit the site.

•

The planting of at least four upper canopy trees to the rear of the building;

Once approved these plans become the endorsed plans of this permit.

Before the development commences, a report prepared by a suitably qualified acoustic consultant must be submitted to the satisfaction of the Responsible Authority. The report must detail recommendations with respect to the provision of glazing of windows and acoustic fences around the property to mitigate the emission of noise from the site. The measures to be taken must be documented on the endorsed plans, to the satisfaction of the Responsible Authority.

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

No building or works shall be commenced (and no trees or vegetation shall be removed) prepared by a suitably qualified and experienced person or firm has been submitted to and endorsed by the Responsible Authority. This plan when endorsed shall form part of this permit. This plan shall show:

•

A survey of all existing vegetation, abutting street trees, natural features and vegetation.

•

Buildings, outbuildings and trees in neighbouring lots that would affect the landscape design.

•

Planting within and around the perimeter of the site comprising trees and shrubs capable of:

−

providing a complete garden scheme,

−

softening the building bulk,

−

providing some upper canopy for landscape perspective,

−

minimising the potential of any overlooking between habitable rooms of adjacent dwellings.

•

A schedule of the botanical name of all trees and shrubs proposed to be retained and those to be removed incorporating any relevant requirements of condition No. 1.

•

The proposed design features such as paths, paving, lawn and mulch.

•

A planting schedule of all proposed vegetation (trees, shrubs and ground covers) which includes, botanical names, common names, pot size, mature size and total quantities of each plant.

Landscaping in accordance with this approved plan and schedule shall be completed before the building is occupied and thereafter maintained to the satisfaction of the Responsible Authority.

Once approved these plans become the endorsed plans of this permit.

Not more than 50 child care places shall be made available for children to be on the premises at any given time.

Except with the written consent of the Responsible Authority, the child care centre must only provide child care between the hours of 6:30am and 6.30pm Mondays to Fridays.

The existing street tree shall not be removed or damaged.

The Council's Planning Inspector shall be advised of the completion of the landscaping so that a site inspection can be carried out.

The Applicant/Owner shall be responsible to meet all costs associated with reinstatement and/or alterations to Council or other Public Authority assets deemed necessary by such Authorities as a result of the development. The Applicant/Owner shall be responsible to obtain an "Asset Protection Permit" from Council at least 7 days prior to the commencement of any works on the land and obtain prior specific written approval for any works involving the alteration of Council or other Public Authority assets.

Before the use commences, the development must be completed to the satisfaction of the Responsible Authority.

Drainage of the development and the site must be carried out to the satisfaction of the Responsible Authority.

The amenity of the area shall not be detrimentally affected by the use or development, through:

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.

e)

In any other way.

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

Alarms must be directly connected to a security service and must not produce noise beyond the premises.

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.

The use and development permitted shall provide a minimum of eight car spaces on the site, comprising six spaces for staff located in the basement car park and two spaces in the frontage for short-term drop off and pick up by parents.

The car parking areas and accessways as shown on the endorsed plans shall be formed to such levels so that they may be used in accordance with the plan, and shall be properly constructed, surfaced, drained and line-marked (where applicable). The car park and driveways shall be maintained to the satisfaction of the Responsible Authority.

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

Parking areas, loading bays and access lanes must be kept available for these purposes at all times.

Provision shall be made for the storage and disposal of garbage to the satisfaction of the Responsible Authority. All garbage storage areas must be screened from public view.

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

• the development and use is not commenced within two (2) years from the date of issue of this permit;

• the development is not completed within four (4) years from 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.

The Responsible Authority is directed to issue a permit in accordance with this order.

Mr J Sabato, Mr S Sabato and Ms P Barca appeared in person.

1 This matter relates to an application by Victory Investments Group Inc under Section 77 of the Planning and Environment Act 1987 seeking the review of the Whitehorse City Council's decision to refuse the grant of a permit for the use and development of a child care centre 27 Medway Street Box Hill North.

2 The permit application was submitted to the council on 23 April 2004.

3 The council required notice of the application to be given. In response, the council received 50 objections and 1 letter of support. The grounds of objection were summarised in the officer's report to the council[1] generally expressing concerns with respect to adverse amenity impacts [noise, loss of daylight, proximity to adjacent houses]; traffic and car parking [extra traffic, inadequate car parking, safety issues]; incompatibility with neighbourhood character [out of keeping with streetscape, building size and height, loss of trees and basement car park]; inappropriate use in residential area; site not suitable for the use and damage associated with construction.

4 The council's health department and engineering section [traffic and drainage] considered the application and offered no objection subject to a number of requirements being met.

5 Despite receiving a report from its planning officer that recommended the grant of a permit, the council decided to refuse the application on the following grounds:

1. The proposed built form is out of character with its residential context.

2. The proposal will unreasonably impact on the amenity of the area.

3. The proposal will create excessive car parking and traffic demands in the vicinity.

4. The proposal is inconsistent with the Non-Residential Uses in Residential Areas Policy at clause 22.01 of the Whitehorse Planning Scheme.

6 The grounds in the application for review essentially refute the grounds of refusal.

7 At the hearing, those appearing for the respective parties tabled and spoke to written submissions. I was also presented with various maps, plans and photographs; photomontages of the proposal as well as survey data to assist my consideration of the proposal. Mr Cicero called expert evidence from Ms A Ring, a town planner and Mr R Symons, a traffic engineer. Both witnesses were made available for cross examination.

8 I have also inspected the site and locality. My inspection included viewing the applicant's existing child care centre in Severn Street.

9 The subject site is located on the south side of Medway Street, in a mid block location between Watts Street and Mersey Street. The site is rectangular in shape with a frontage of 18.28 metres, a depth of 51.82 metres with an overall area of about 947 square metres. The site is set on sloping terrain. Although it is reasonably flat towards the frontage, it rises by about 4.5 metres towards the rear boundary.

10 The site is currently occupied by a single storey brick dwelling. A reasonably large liquidamber exists in the front setback whilst the backyard area largely comprises a central lawn with perimeter planting of trees and shrubs.

11 Contextually the site is located within an established suburban residential street with surrounding properties used for residential purposes. Buildings on surrounding properties include single and double storey dwellings, many of which form part of medium density housing developments. It was my observation that about two-thirds of the properties in Medway Street between Watts Street and Mersey Street are developed with some form of medium density housing.

12 The property to the west is occupied by a double storey dwelling within which Mr Sabato and his family reside. There is a mix of single and double storey buildings in the street, with the medium density housing developments generally dating from the 1970's to the present day. The more traditional housing stock dates from the post world war 2 period, with most of these located toward the Watt Street end of Medway Street.

13 Medway Street is fully constructed and allows for kerbside parking on both sides. There are no parking restrictions near the site.

14 The applicant is the operator of an existing child care centre catering for 45 children known as "Mary's Little Lamb Early Learning Centre". That centre is located on nearby premises at 71 Severn Street. Mr Cicero explained that in 2003, the Department of Human Services [DHS] advised the operator that the existing centre would not comply with updated requirements for child care centres introduced under the Children's Services Regulations 1998. The applicant was given 4 years in which to bring the premises into compliance. Mr Cicero submitted that the existing building could not be upgraded to a standard that would allow 50 childcare places to be provided and the overall land size of that site is too small for a new facility. I was given no evidence to back up either of these assertions; however, the simple fact of the matter is that the applicant has opted to pursue the development of a new centre on an alternative site. This is what I must consider.

15 The proposal involves the construction of a new double storey building over basement car parking which is to be used as a child care centre. The existing dwelling is to be demolished.

16 The child care centre would cater for up to 50 children comprising infants, 2-3 year old toddlers and 4-5 year old children of kindergarten age. The centre would operate between 6.30 am and 6.30pm on weekdays with up to 8 staff present at the centre at any one time. The centre would be closed at weekends.

17 The building has been designed to be purpose built for the proposed use and a contemporary architectural design style has been employed.

18 The ground floor level façade of the proposed building is to be setback 12.205 metres from the site's frontage with the first floor stepped back from this line by a further 5.3 metres. The ground level of the building would provide for a reception area; separate areas for children in different age groups [nursery, toddlers area and kindergarten area] as well as areas for amenities including kitchen, and laundry. A series of ramps extend about 2 metres into the front setback.

19 The first floor component of the building measures about 75 square metres and is significantly smaller than the ground floor footprint which measures 297 square metres. A manager's office, staff room and storage areas are to be provided at first floor level.

20 The basement level of the building provides for 6 car parking spaces which are to be accessed via a driveway extending from a street crossing located at the site's northeast corner. A further 2 car parking spaces are to be provided within the front setback at 90 degrees to the driveway. Much of the front setback area would be paved; however, landscaping is to be provided in the form of a 3 metre wide strip along the frontage, within a 1 metre area along the east boundary defined by a retaining wall and along the pedestrian walkway that would extend from the site's northwest corner.

21 The open area at the rear of the building is to be divided into 3 separate play areas each of which will accommodate children within one of the 3 age groups. The backyard area is to be landscaped in accordance with the plan tabled at the hearing.

22 Under the Whitehorse Planning Scheme the site is located within a Residential 1 zone. The site is not affected by overlay controls.

23 "Child care centre" is a land use that is not specified in either Sections 1 or 3 of the table at clause 32.01-1. As such, it is an unspecified use that falls with Section 2 of the table. A permit is required to use land for a purpose that falls within Section 2 of the table. A permit is also required for the development of the site for this purpose under clause 32.01-6.

24 Parking requirements are set out at clause 52.06. Under this clause, a use must not commence until the car parking specified in the table at clause 52.06-5 is provided. The table does not specify a requirement for child care centre. However, clause 52.06-1 states that where a use is not specified in the table, "an adequate number of car spaces must be provided to the satisfaction of the responsible authority."

25 The decision guidelines for the consideration of application are at clause 65. These require a range of matters to be considered including the planning scheme's policy frameworks, the purpose of the zone, orderly planning and the impact on amenity.

26 Relevant policies within the State Planning Policy Framework [SPPF] include clause 11.03-6 [Social needs]; clause 15.05 [Noise abatement]; clause 15.12 [Energy efficiency]; clause 18.02 [Car parking and public transport access to development] and 19.03 [Design and built form].

27 Relevant references with the Local Planning Policy Framework [LPPF] are at clauses 21.05 [Enhancing residential character]; clause 22.01 [Non residential uses in residential areas policy] and the tree conservation policy at clause 22.04. I was also referred to the council's neighbourhood character study [NCS].The site is within precinct 7 under the NCS. I will refer to the scheme's policies as appropriate later in my reasons.

28 Mr Bowden and Ms Ring also drew my attention the Amendment C50 to the planning scheme. They both acknowledged that the amendment would affect the local policy framework that applies by modifying the policy at clause 22.01. Under the proposed Residential Uses policy, the site is to be included in an area designated for "natural" change[2]. Mr Bowden and Ms Ring agreed that the changes proposed in Amendment C50 are not significant in terms of the consideration of this proposal.

29 The planning scheme provides the discretion for a permit to be granted for this use on land zoned Residential. However, as is made clear by the provisions of clause 31.01-2, the existence of the discretion to issue a permit does not imply that a permit should or will be granted. Rather, what needs to be decided is whether the proposal would result in an acceptable outcome having balanced the relevant matters to be considered including the direction given by policy as well as the impacts on amenity and neighbourhood character. Ultimately, it is necessary to consider the specific circumstances that apply in each case.

30 In this case, there was really no substantial dispute that the planning policies within the scheme at both state and local levels as well as the purpose of the zone provide general support the provision of facilities and services that are needed on a day to day basis by the community at large.

31 This is made clear at clause 11.03-6 of the SPPF which states that:

Planning is to recognise social needs by providing land for a range of accessible community resources, such as affordable housing, places of employment, open space, and education, cultural, health and community support (mental, aged, disabled, youth and family services) facilities.

32 In a similar vein, the council's vision for the municipality, as expressed at clause 21.04-1 commences by stating:

Council's aim is to create an attractive environment that meets the residential, business and leisure needs of the community. It seeks to contribute to the well being of those who live and work in our City by providing outstanding service and appropriate facilities that respond to changing community needs and expectations. The focus is on providing an attractive, well-serviced, and prosperous City with a strong community spirit.

33 There can be no question that child care centres fall into the category of uses that fulfil an important social need particularly as they are geared towards the care and education of the youngest members of our community. In my view, the planning scheme's policies provide strong "in principle" support for the provision of a facility like this.

34 In terms of whether such a facility should be provided within a residential area, it is relevant to note that the purpose of the Residential 1 zone recognises that it will be appropriate to allow various commercial uses, including those that serve an educational or community function, within a residential area to serve local community needs. I do not think that there was any question that a child care centre of the type proposed serves a local need, whether it that of residents or other persons who work in the general area.

35 Further, there is also a relatively long line of decisions where the tribunal and its predecessors have accepted that child care centres are appropriately located in residential areas. For example, in Lloyd v Ballarat CC [2005] VCAT 515 tribunal said:

I agree with Mr Crawford and find, as many other divisions of the Tribunal have in the past, that child care centres are a suitable use in residential settings [see for example Hub Centre Pty Ltd v Whitehorse CC (2004) VCAT1066 (7 June 2004) and Kirby v Mitchell SC (2004) VCAT 633 (7 April 2004)].

36 Similar conclusions were reached in Attard v Moonee Valley CC [2003] VCAT 754 and Matthews v Glen Eira CC [2002] VCAT 1338.

37 It is fair to say that a child care centre is a commercial venture; however, as has been demonstrated by the approach taken by the tribunal in the cases cited above, this in itself does not make the use inappropriate within a residential setting. Further, the local policy at clause 22.01 notes that the MSS "recognises that there is a need for non-residential uses in residential areas to serve the needs of the local community".

38 In my view, the proposed use is one that is supported by policy and there is no "in principle" reason why it cannot be located within an area zoned for residential purposes.

39 I acknowledge that the local policy at clause 22.01 seeks to located non-residential uses on sites that either adjoin or are in close proximity to commercial zones. Further the proposed policy under Amendment C50 also encourages such uses on corner sites or on main roads.

40 The site is not located within such environments; however, I do not accept that it is appropriate to apply such policy in a prescriptive manner because it applies to all non-residential uses. The policy should certainly be used as a guide and I see no problem with encouraging non-residential uses to locate near activity centres, on corner sites etc. However, it is also important to ensure that the policy is not applied in such a prescriptive way so as to constrain unreasonably the "pool" of potential sites that may accommodate needed services and facilities. In particular, sites that are suitable for this type of use are not easy to find given that they need to be of a particular size to enable suitable indoor and outdoor areas to be provided for the children being cared for.

41 Ultimately whether the proposal is acceptable in this case will require the specific consideration of:

1. Whether the use the site for a child care centre is appropriate having regard to the impact residential amenity, and

2. Whether the built form is acceptable having regard to neighbourhood character.

42 In relation to the first issue, it seemed to me that the main concerns raised against the proposal related to the impact of noise, traffic and car parking.

43 I will deal with each of these in turn.

44 Concerns with respect to noise generated by the activities associated with the proposed use were twofold. First, concerns were raised about noise associated with children playing and crying etc. Second, there was also concern about noise associated with traffic, particularly parents parking cars and slamming doors etc in Medway Street during the early morning drop off period.

45 In relation to noise generated by children, the former Planning Appeals Board, made the following observations in Krampitz v City of Footscray 13 VPA 88:

Children of preschool age who will be brought to the premises will spend much of their time sleeping and some of the time engaged in occupations within the house. It will be a sad day for this community when responsible authorities find that the laughter of little children or their exuberance in playing their games becomes a nuisance. We can see no reason to deny the permit on this ground.

46 Mr Bowden relied on the comments of the former AAT in Norton Properties Pty Ltd v City of Whitehorse (1995/41282 16 AATR editorial comment at 245). The tribunal in that case was presented with a tape recording of noise at an existing child care centre which sought approval for an extension. On hearing the tape, the tribunal commented:

A small section of the tape was played at the hearing. I later listened to all of it. Its evidentiary value is probably diminished by the persistent sound of Mr Lethborg's dog. Nevertheless I found it interesting. It allowed an appreciation of the range of noises associated with the use and what Mrs Scrase described as the "ebbs and Flows" of sounds. Most of the recording was of the sound of contented children at play. Nevertheless, the overriding impression was not of these "happy" sounds. Rather it was of the sound of distressed children and the loud directions given by the staff.

47 The tribunal went on to describe the use as one that is intense and comparable to a primary school.

48 In contrast to this view, there have been several more recent decisions that have not expressed the same concern about noise associated with young children. For example, in Matthews case previously cited, the tribunal expressed the view that:

Noise associated with child mind centres is a difficult issue. Child minding centres are properly located within residential areas. A child minding centre with a capacity of 73 child minding spaces is not unusual. Therefore, there will always be neighbours affected by the noise associated with a child minding centre of this type. Hence as for schools I think it is difficult to argue that the noise from a child minding centre is unacceptable in a residential environment.

49 In Attard's case, the tribunal agreed that the impact of noise could be mitigated through the use of acoustic fences and screens at appropriate locations and came to the conclusion that:

I agree with Ms Hui's conclusions and the findings of earlier decisions of the Tribunal that the noise of children playing is not generally considered offensive and that child care centres do not have an unreasonable noise impact on residential areas.

50 I can appreciate that neighbours of properties adjacent to a proposed child care centre would be apprehensive about the "change" that a facility of this type would bring about. I would think that the possibility of continually hearing "noise" from children playing and crying would also be of concern to those seeking peace and quiet.

51 However, what should be considered is that the child care centre being proposed is relatively small, at the low end of the scale catering for up to 50 children. Twenty of the children would be babies or toddlers. I think that children in this age group would be mainly kept indoors, and at times when they are outdoors, would be kept under a great deal more supervision than children within a schoolyard. I would not expect that children in this age group would cause substantial noise.

52 It is more likely that the children in the "kinder" age group might play for longer periods outdoors and their play and other activities would be heard. However, based on Mr Cicero's advice they would not be outdoors for extended periods. Further, from my own experience and observations, the activity and play of "kindergarten" age children is not as boisterous as that of older school age children in playgrounds.

53 I accept that on occasions, the immediate neighbours would be able to hear noise associated with children in distress, perhaps crying; however, for the most part any noise would be that of children playing, for a limited time of the day. It is difficult for me to come to the conclusion that such noise would be offensive or out of place in a residential environment.

54 It must also be remembered that the centre would operate between 6.30am and 6.30pm on weekdays, not during the sensitive night period or on weekends. Whilst a 6.30am start is proposed, I think it is reasonable to anticipate that activity associated with the centre at this time would be very low. Some staff and a few children may arrive at this time; however, realistically, most of the arrivals will occur later in the morning when most parents would go to work.

55 It is relevant to note that the applicant is prepared to accept permit conditions that require windows to rooms occupied by children are to have double glazing and acoustic fences are to be provided around the side and rear boundaries. These measures will work towards mitigating the escape of noise from both within the building and from the outside areas.

56 When consideration is given to the scale of the proposed centre, the nature of the noise, and the measures that the applicant is prepared to take with respect to double glazing and fencing, I am of the view that the noise impacts from the activities of children would not be unreasonable.

57 I also do not share concerns raised about noise associated with parents picking up and dropping off children. I have observed this activity at child care centres and kindergartens, including the existing facility in Severn Street. This activity is not noisy or detrimental.

58 Concerns were raised about the extra traffic and the impact on amenity. Mr Bowden acknowledged that the council's traffic engineer and the expert appearing for the applicant, Mr Symons, have not expressed concerns on with respect to traffic matters. Despite this, Mr Bowden submitted that the council remains concerned on safety grounds because of vehicle speeds adjacent to the site; the narrowness of the road pavement and the likelihood that parked vehicles would congregate near the entry to the centre.

59 The objectors raised similar concerns. However, Mr Sabato added that traffic levels in Medway Street are already high given that it is used as a "rat run". He argued that traffic and safety problems can arise given that the street is heavily parked at times.

60 With respect to traffic levels, Mr Symons advised that based on his survey, he estimates that the 2-way flow along Medway Street would be about 600 vehicles per day. Mr Symons said that based on surveys of child care centres around Melbourne, including observations of the existing centre in Severn Street, the proposed centre would generate about 45 vehicle trips[3] during both the morning and afternoon peak hours. Mr Symons went on to say Medway Street and surrounding road network are capable of absorbing the additional traffic associated with this proposal.

61 I accept the view expressed by Mr Sabato that the level of traffic in Medway Street is probably higher than the typical quiet residential street. There are 2 reasons for this. First, on my inspection, I observed what seemed to me to be through traffic in Medway Street. However, whilst this traffic was noticeable, the overall number of vehicle movements seemed to be reasonably in line with Mr Symons observations and well within this street's design capacity. Second, I would expect that at times, the activities associated with the church on the corner of Medway Street and Watts Street would also add non-residential traffic into the area; however, I would not expect church traffic to occur at the same time as the peak drop off and pick up times for the child care centre.

62 I think that these factors are relevant in the assessment of the current amenity. Medway Street already experiences the impact of "outside" traffic influences. The question is whether the additional impact associated with this centre can be accommodated within the street and whether the impact would have a substantial impact on the existing amenity.

63 I accept that traffic levels in Medway Street are higher than typical residential streets given the existence of some through traffic and the church; however, the evidence of Mr Symons is that the street clearly has the capacity to accommodate the additional traffic associated with this proposal. This view is shared by the council's traffic engineer.

64 Unlike traffic associated with schools, the traffic associated with a facility like this is spread over a far greater period. Further, it must be remembered that the number of children to be accommodated is nowhere near the number typically associated with a school. The impact of a proposal like this must be put into its proper perspective. In my view, the increase in traffic would be relatively modest and can easily be accommodated in Medway Street.

65 I do not share concerns raised about safety. The level of traffic on Medway Street is lower than on main or collector roads. Care should always be taken when children are being taken out of and put in cars. Common sense needs to be used by parents as to the best way to do it. In this case, I do not consider that the level of traffic environment presents any greater danger than usual.

66 It was an assertion that vehicles speed along Medway Street. No evidence was submitted to support the assertion, nor did I observe speeding vehicles during my inspection. Medway Street is in a 50 kph zone. If speeding occurs, this is an illegal act that should not prevent the establishment of a use that is found to be acceptable. Rather, other action should be taken to deal with any speed issues.

67 If cars are parked on both sides of the street directly opposite one another, the space in between them would be sufficient for only one car to pass. However, this is not an unusual occurrence in residential streets like this. I would not expect a long or unreasonable delay for vehicles that may, from time to time, need to wait whilst a vehicle travelling in the opposite direction passes between 2 parked cars.

68 I find myself in agreement with Mr Symons and the council's traffic engineer. There are no traffic reasons to refuse this proposal.

69 Concerns were raised that the car parking resources available are inadequate for the proposed use of the site.

70 Mr Symons evidence was that based on various surveys conducted by his firm and other firms, the peak parking demand for parents dropping off or picking up children would range from about 0.12[4] to 0.17[5] spaces per child. For a 50 place child care centre, this would equate to a peak demand of between 6 and 9 spaces. Further, Mr Symons advised that the peak parent demand at the existing Severn Street centre of 6 spaces. Peak parking demand for staff was estimated at 5 spaces based on the observations of the existing centre in Severn Street and the O'Brien surveys.

71 Bearing in mind the above results, particularly the observations of the existing centre at Severn Street, I would anticipate a peak parent parking demand of about 7 spaces with 5, possibly 6 spaces required for staff.

72 A total of 8 car parking spaces are to be provided on the site; 6 within the basement to allocated for staff use, the other 2 in the front setback for use by parents at peak times.

73 Based on the survey material, it is clear that the basement spaces would be sufficient for staff needs. However, it is also evident that there would also need to be a reliance on kerbside parking for parents.

74 Assuming a peak parent demand of 7 spaces and with 2 spaces on site this would mean that up to 5 kerbside spaces would be occupied during the peak period. The question is whether this is acceptable in the circumstances.

75 In considering this issue, I take into account that the site's frontage would provide for about 3 spaces. I also take into account that it is likely that the peak drop off and pick up conditions are likely to occur for a very short period of time given the spread of hours during which these activities would occur. Further, whilst I accept that there are times when there is a higher demand for kerbside parking in Medway Street, this would usually be at the Watts Street end which is close to the church and more proximate to the commercial area. Essentially, I accept Mr Symons evidence that the kerbside parking resources available near the site would easily accommodate the demand associated with the centre, a view that is shared by the council's own traffic engineer.

76 The car parking resources available are acceptable.

77 Another amenity related issue raised was with respect to the potential loss of sunlight and daylight to the east facing window of the neighbouring property to the west. The particular concern was that the double storey component of the proposed building is located adjacent to this window.

78 On this issue I firstly note that the proposed building generally meets the "Rescode" setback requirements. The notable exception is the northern part of the east wall; however as noted by Ms Ring, this wall is to be located adjacent to the driveway appurtenant to the dwelling located adjacent to the play area of the proposed building. Whilst the provisions of Rescode do not apply to a building of this type, nonetheless they provide a useful guide. For example, a double storey house could be constructed on the site without a planning permit and the Rescode setback formula would apply. The proposed building would not, in my view, have any greater impact on daylight and sunlight to the window than a typical double storey dwelling that could be built as of right on the site.

79 The other amenity issue relates to the impact on the outlook from the east facing window. There are 3 things to note. First, the proposed building is 2 storeys high, a height that is not inconsistent with dwellings on some neighbouring properties. Second, the Rescode setback is met. Third, the overall size of the upper level of the building, at 75 square metres is modest.

80 Whilst there would be a change in the outlook from the neighbouring property to the west, the change is not one that is unreasonable having regard to the above parameters.

81 In overall terms I find that the amenity impacts of the proposed use would not be unacceptable.

82 Next I turn to the second key issue, namely whether the proposed building has been designed to be respectful of neighbourhood character.

83 Mr Bowden and the objectors criticised the proposed development on the basis that it would not be respectful of neighbourhood character. The contemporary styling of the building, the need for features such as the ramps at its frontage; the location of car parking in the front setback and the removal of vegetation were identified as aspect of the proposal that would result in an outcome that is not respectful of neighbourhood character.

84 There are 3 observations to be made about the proposed development in terms of building form and site layout. The first is that it is a building itself is designed for a specific purpose. Second, the site layout is influenced by the practical operational needs of the use. For example, on site parking for parents is to be provided in the front setback; whilst play areas are to be located at the rear of the building. The third observation is that the building is clearly contemporary in its design, reflected in both the design style and use of materials.

85 It is relatively easy to criticise a development for being different to what already exists and then to put forward the view that what is being proposed is not respectful of neighbourhood character. However, this is an overly simplistic approach to the complex neighbourhood character issue. It fails to recognise that the notion of respecting neighbourhood character does not mean replicating what already exists. It also fails to take into account that uses other than dwellings can be appropriately located in residential areas. Further, it fails to take into account the practicality that buildings need to be designed in a manner to facilitate their intended use. All of these things need to be put into the "mix" in considering this issue.

86 I accept that this development would be different to what already exists in Medway Street; however, I do not accept that this makes the proposal inappropriate from a neighbourhood character viewpoint. The expectation of the policy at clause 22.01 is that "the design, scale and appearance of the non-residential use harmonise with the housing styles and general character of the area" not to replicate what exists.

87 The overall scale of the building, in terms of floor area; height, site coverage and setbacks to both the street and side boundaries, is not all that different to what could be expected if the existing dwelling were to be replaced with a reasonably large dwelling. The site is relatively large and like many others in Medway Street, has attributes that make it capable of supporting a large dwelling or, alternatively, a medium density housing development. I see no reason why some form of double storey development would not be permissible on this site. Other properties along Medway Street are occupied by 2 storey buildings. The overall level of development is not incompatible with that associated with the reasonable use and development of this site for residential purposes.

88 The building is positioned appropriately on the site. The front setback is consistent with that of the dwelling to the west. The upper level has been setback further. Setbacks are provided off both side boundaries. The area to the rear of the building is not dissimilar to a traditional backyard space.

89 The building design is contemporary. However, Medway Street is not comprised of dwellings or buildings from one era or time; rather, it is relatively easy to look at buildings and determine the time that they were built. Buildings in the street range from the post war period to the present time and in particular, the medium density housing development in the street displays characteristics of the design styles that were used at the time that they were built. The buildings in the street are not of heritage significance. There was nothing presented to show that they have any other particular significance. The construction of a dwelling would not be subject to any "design style" constraints. By way of example, Mr Bowden criticised the flat roof form of the proposed building, yet the dwelling at 25 Medway Street has a flat roof. In my view, this context provides a fair degree of flexibility to introduce contemporary forms.

90 I note that the applicant is prepared to modify the proposal to replace the mini-orb cladding with timber. I consider that this is a reasonable modification to make.

91 Features such as the location of the car park and the ramps are associated with the intended purpose of the building. It is not unreasonable for developments to be constructed in a manner that suits their purpose.

92 Policy at clause 22.04 encourages the retention of significant trees. The construction of the car park would result in the loss of the liquidamber in the front setback; however, this tree is not significant[6], and new landscaping is proposed on the site's frontage. It is true that this landscaping will require time to grow and mature; however, in the medium to long term, the site would make a contribution to the garden character.

93 In overall terms, I am of the view that the proposed development is acceptable within the neighbourhood setting.

94 For the above reasons, I have come to the conclusion that a permit should issue. I will set aside the council's decision. I have settled the final form of the conditions taking into account the submissions of those appearing at the hearing.

[1] Report to the Ordinary Meeting of Council dated January 2005 pages 23 and 24

[2] This can be contrasted with areas designated suitable for minimal or significant change.

[3] This estimate is based on 2 vehicle trips being attributed to each drop off or pick up; that is, 1 trip being the arrival to the centre, the second being the departure.

[4] Based on a survey by Ratio consultants at the Platypus Junction child care centre Vermont

[5] Based on surveys by Andrew O'Brien and Associates - refer to page 6 of Mr Symons report

[6]Based on the criteria set out in the Neighbourhood Character Citation for Precinct 7