1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended as follows -
   • For the name of the permit applicant, substitute Jorbell Pty Ltd'.
   • In the description of the proposal, add -

1. Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, VicRoads is joined as a party to the proceeding.

1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998, the Statement of Grounds filed by Lindsay Love is amended as follows -
   • For the name of the Respondent and permit applicant, substitute 'Jorbell Pty Ltd'.

1. The decision of the Responsible Authority in relation to permit application no. P12/1585 is varied.
2. In permit application no. P12/1585 a permit is granted and directed to be issued for the land at 10 Nepean Highway, Dromana on the conditions set out in Appendix A. The permit allows -
   • Development of additions to an existing child care centre, incorporating associated works including additional car parking works, signage and fencing in accordance with the endorsed plans

Mr Lindsay Love, planner, engineer and building designer, Lindsay Love & Associates Pty Ltd, Building & Project Management Consultants

Mr Brendan Ward, town planner, Mornington Peninsula Shire Council

Mr John Ahearne, engineer, Road Access Planning Section, VicRoads Metropolitan South East Region

Application under sections 80 & 82 of the Planning and Environment Act 1987

Environmental Significance Overlay Schedule 17 (ESO17) (Streamlines)

Environmental Significance Overlay Schedule 25 (ESO25) (Port Phillip Coastal Area)

Vegetation Protection Overlay Schedule 1 (VPO1)

The land abuts land in a Road Zone Category 1 (RDZ1) (Nepean Highway)

The land also abuts (to the south-east) land in Design & Development Overlay Schedule 1 (DDO1) (Township Design)

Clause 32.01-6 (buildings and works for a Child care centre)

Clauses 10, 11, 12, 15, 17, 21.04, 21.06, 21.07, 22.12 & 65

The land is on the south side of the Nepean Highway, Dromana, at its intersection with Marine Drive. The land is irregular in shape, is relatively flat, has a curved frontage of about 85 sq m to Nepean Highway and has an overall area of about 2,852 sq m. The land is used for a child care centre comprising a single-storey building located on the west side of the land and accommodating a maximum of 60 children. There is a 16-space car park in front of the centre, accessed via a left-in and a left-out crossover onto Nepean Highway.

25 October 2013 (unaccompanied inspection of land, 8 Spencer Street, and surrounding area)

1. Jorbell Pty Ltd (Jorbell) owns land at 10 Nepean Highway, Dromana (the land) used for a child care centre that accommodates a maximum of 60 pre-school children. Jorbell wants to construct additions to the centre to enable accommodation of 32 additional children (the proposal). It applied to the Mornington Peninsula Shire Council for a permit under the Mornington Peninsula Planning Scheme (the scheme) to allow with the proposal.
2. Mrs Lorna Williams, whose two-storey detached dwelling is on land the rear boundary of which adjoins the south-east boundary of the land, was one of a number of people who objected to the grant of a permit. VicRoads also objected to the grant of a permit unless specified conditions relating to access from the Nepean Highway were included in any permit granted. The Council decided to issue a notice of decision to grant a permit. The notice included the conditions requested by VicRoads.
3. The Council's decision has resulted in two applications to the Tribunal. Mrs Williams has applied to review the decision. Jorbell has applied to review certain conditions relating to hours of operation and to one of VicRoads' requirements.
4. There are two issues in this proceeding. The first is whether the amenity impact on Mrs Williams' dwelling is unreasonable. The second is whether VicRoads' requirement is unreasonable.
5. I have decided that the amenity impact on Mrs Williams' home is not unreasonable. I have also decided that VicRoads' requirement is unreasonable and should not be included in a permit. I will therefore grant a permit subject to modified conditions. My reasons follow.

1. The addition is to be located on vacant land on the east side of the centre. It comprises two care rooms for 32 children, an office, two store rooms, toilet facilities, and a new single entry for the enlarged centre. It is single-storey, brick-clad with a pitched steel roof. The south-east corner of the external walls of the essentially rectangular-shaped addition is located 3 m from the south-east boundary of the land adjoining Mrs William's land. The existing 16-space car park is extended by 5 spaces to a 21-space car park. The existing access, comprising left-in from and left-out to the Nepean Highway is unchanged.

1. Mrs Williams asserts the following unreasonable amenity impacts - loss of access, loss of shared viewlines, loss of privacy, visual intrusion, noise and loss of land value.

1. Mrs Williams has lived in her home adjoining the land for over 30 years. Along the rear boundary of her land is a timber fence about 1.8 m high. There is a gate in the fence which gives access to a strip of land about 1 m wide which separates the currently unfenced boundary of the subject land. The gate affords access across the strip to the subject land and onto the Highway and the beach. According to Mrs Williams, a previous owner of the land gave her a right of access across the land. She still enjoys that access because the part of the land she crosses to reach the Highway is unfenced and grassed. Mrs Williams was unable to provide any evidence of a legal right to cross the land. At its highest, it may have been a licence to cross the land. It does not bind Jorbell.
2. If the addition proceeds, Mrs Williams will lose the ability to cross the relevant part of the land because the addition will be located in this part. By condition 1(a) of the notice of decision, Jorbell will have to construct a 2 m high acoustic fence along its boundary. Mrs Williams may be able to retain some form of pedestrian access along the 1 m wide strip if it is retained to the north-west at the rear of the dwellings of her three neighbours separating her from the Highway.
3. The loss of amenity resulting in the loss of a licence to cross the land is not a loss recognised under planning law.

1. The main kitchen/living area and one bedroom is on the rear wall at the second storey. There is a full-width balcony along that rear wall. From the balcony is a north and northwest facing outlook across the land, the Nepean Highway (including poles, power lines and traffic signals) and the coastal reserve. There is sporadic vegetation in the coastal reserve at this point. Between the vegetation are glimpses of the water in the Bay. The view cone from the balcony is funnelled by mature vegetation on the side boundaries abutting nos 6 & 10 Spencer Street.
2. After inspecting Mrs Williams' outlook from her home's rear balcony (and adjoining living room and bedroom), I find the addition will result in some loss of outlook, particularly to Nepean Highway and the coastal reserve and the water beyond.
3. Jorbell is not required to protect shared view lines on the land because none of the provisions of the scheme applying to the land have purposes directed towards that protection. The land is not subject to DDO1. In DDO1, one of the design objectives is 'to protect shared viewlines where reasonable and practical'. It is of no comfort to Mrs Williams to know that her dwelling and those of her neighbours to the east and west in Spencer are affected by DDO1. The Council must consider the protection of shared viewlines in any development of her land and her neighbours' land on each side, but not Jorbell's land.
4. In these circumstances and having regard to the authorities about views,[1] the loss of outlook is not unreasonable.
5. The loss is mitigated by the single-storey form of the addition with a shallow 12 degree pitched roof with a maximum ridge height of about 4.2 m above the floor. However, the loss cannot be avoided even if a flatter roof form was included. Even though Mrs Williams has taken steps to remove future potential loss by constructing a two-storey dwelling with main living rooms at the first floor, the dwelling sits low on its land and has low ceiling heights.
6. The loss is also mitigated by the 15 m distance between the balcony and the existing fence, the 1 m strip and the 3.7 m setback to the addition (ie a separation of nearly 20 m). Any outlook beyond the south-eastern edge of the coastal reserve could be diminished over time by the growth in vegetation in the reserve. Mrs Williams will continue to enjoy a broad outlook to the sky to the north-west and a deeper view cone to the north of the extension across the Highway and the petrol station that will remain partially narrowed by vegetation on or near her northern side boundary.
7. In summary, Mrs Williams' expectations of maintaining existing views across that part of Jorbell's vacant land that is grassed (ie without shrubs or trees) to the coastal reserve and to glimpses of the water beyond is unreasonable given the scheme and the context.

1. Mrs Williams is concerned about a loss of privacy associated with direct views by children and staff in the extension to her balcony and habitable room windows. The capacity of such direct views is doubtful given the distance between the extension and the proposed boundary fence. Moreover, the scheme does not recognise direct views of this type, especially over a distance of about 20 m or more, in the manner it recognises such views over 9 m or less between habitable room windows and balconies and decks between dwellings. There is no reasonable loss of privacy.

1. Mrs Williams claims a loss of amenity associated with visual intrusion from her sensitive rear secluded private open space. Jorbell's land is not, as I have already stated, included in DDO1. In DDO1, an objective is that buildings are to be designed and sited to avoid being visually intrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy. This does not apply. A single storey extension with a 12 degree pitched roof where the corner (only) wall of the extension is nearly 5 m from Mrs Williams' rear boundary is not visually intrusive, even if its floor level is about 600 mm above the ground level at the base of Mrs Williams' existing rear boundary fence.

1. The noise of children playing in a child care centre was not one that the Tribunal has been prepared to regard until recent times as a loss of amenity in a residential area. However, the growth of larger centres has given cause for further consideration of this issue.[2]
2. The Council included a condition that required a 2 m high acoustic fence along the south-east boundary adjoining the six lots each containing a dwelling in Spencer Street, including Mrs Williams' dwelling. Jorbell has not applied to review this condition. Although there was no expert acoustic evidence at the hearing, I am satisfied the proposed fence will address any unreasonable noise.

1. Mrs Williams claims the proposal will cause of loss of value in her land. This is not a loss that is relevant for planning purposes.

1. The existing deceleration lane off the Nepean Highway to the entry to the land is narrower than the Austroads standard because a bicycle lane occupies part of the deceleration lane. One of the conditions is for Jorbell to remove the bicycle lane marking in the deceleration lane to minimise potential conflict between vehicles entering the land and bicycle. Jorbell has not applied to review this condition.
2. Another condition requires Jorbell to either relocate an existing cantilevered light (not power) pole adjoining the deceleration lane (about half way along its length) outside the clear zone (of 3 m from the edge of the 'traffic lane') or construct a crash barrier protection around the pole. Jorbell has applied to review this condition.
3. Jorbell is not proposing to construct or alter an access to the Nepean Highway. It is proposing to intensify the use of the access by about 30 vehicle movements (ie the parents of the 32 additional children and the 2 or 3 additional staff) in the morning and afternoon drop off and pick up periods (usually over one to two hours). A permit is not required under clause 52.29 of the scheme because an intensification of the use of land adjoining land in a RDZ1 is not an alteration of access.[3]
4. A requirement for Jorbell to relocate the pole or install a barrier around it needs therefore to be determined on its merits. The merits do not support the requirement because -
   • VicRoads installed the pole when altering the intersection. This was after it approved or acquiesced to the deceleration lane. The then owner of the centre was not required to construct the pole. VicRoads chose to construct a rigid pole (not a frangible pole) and current standards support relocation or a barrier for this type of pole.
   • It is not clear whether the pole's location is inside or outside the 3 m clear zone under the Austroads Guide because there is a 3.6 m clearance from the edge of the through lane but only 0.7 m from the edge of the deceleration lane.
   • VicRoads has not persuaded me of the heightened risk associated with the extra traffic generated by the extensions to the centre that warrants relocation of the pole or a crash barrier. VicRoads erected the pole about 13 years ago and neither VicRoads nor the Council reported any road safety problems with the pole.

1. Jorbell has applied to review a condition allowing the centre to open only at 7 am Monday to Friday. The Council included this time because Jorbell's consultants incorrectly reported this time to the Council. In fact, the centre opens at 6.30 am Monday to Friday. The Council does not oppose a variation to the condition to reflect the existing hours.
2. Jorbell proposes to remove an existing sign and construct a new non-illuminated business identification sign of about 5.5 m by about 1.2 m above the new entrance. A permit is required for this sign. Jorbell overlooked applying for a permit for the sign. At the hearing, the Council did not oppose the permit including the sign subject to the inclusion of appropriate conditions.

1. The decision of the Council will be varied. A permit will be granted subject to modified conditions.

Development of additions to an existing child care centre, incorporating associated works including additional car parking works, signage and fencing in accordance with the endorsed plans

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
   1. Acoustic fencing along the rear (southeast) boundary to a height no less than an average of 2 metres above natural ground level on that boundary.
   2. A landscape plan prepared by a suitably qualified person to include:
      • A survey of all existing vegetation and features, with all trees to be retained except for the wattle within the proposed driveway alignment.
      • The areas set aside for landscaping.
      • A schedule of all proposed and existing trees, shrubs and ground cover, shrubs including the location and size at maturity of all plants and their botanical names.
      • More than 80% indigenous species to the locality.

Removal of bicycle line marking on Nepean Highway

1. Before the development starts, a functional layout drawing must be submitted to and approved by VicRoads showing the removal of the bicycle line marking along the left turn deceleration lane on the Nepean Highway, east of the vehicle access to the land.

1. The layout of the land, the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plan must not be altered or modified without the consent of the Responsible Authority.
2. All disturbed surfaces on the land resulting from the approved development as shown on the endorsed plans must be revegetated and stabilised to the satisfaction of the Responsible Authority.

1. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.
2. Before the initial occupation of the development, landscaping works as shown on the endorsed plans must be completed and then maintained, to the satisfaction of the Responsible Authority.
3. Unless with the further consent of the Responsible Authority, no more than ninety-two (92) children may be accommodated on the site at any one time.
4. Except with the consent of the Responsible Authority, the use of the land as a child care centre must only operate between 6.30 am and 6.30 pm on Monday to Friday inclusive.
5. The use and development must be managed so that the amenity of the area must not be detrimentally affected, through the:
   • Transport of materials, goods or commodities to or from the land.
   • Appearance of any building, works or materials.
   • Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.
   • Presence of vermin.
6. Before the initial occupation of the development, all screening devices and fencing as shown on the endorsed plans must be installed and maintained thereafter to the satisfaction of the Responsible Authority

1. Before any works associated with the development starts, detailed construction plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and either two hard copies must be provided or a soft copy in pdf format must be emailed to devengadmin@mornpen.vic.gov.au. The plans must show:

1. All areas of the development being drained by means of an underground drainage system connected to the existing underground drainage system. 2. All ground surface areas being drained by a minimum 150 mm diameter drainage pipe connected to the storm water system.

1. A drainage surcharge route within the development.

1. Details, including levels, of the car parking areas within the site. 2. Line marking to all car spaces. 3. Sight distance for vehicles and pedestrians not being unduly restricted at the exit from site by fencing or landscaping works.
2. Before any works associated with the development starts, drainage computations are required for the drainage system, including consideration of any drainage catchment external to the development that may drain to the drainage system.
3. Before the initial occupation of the development, drainage works within the development must be constructed in accordance with approved construction plans, and to the satisfaction of the Responsible Authority.
4. Before the initial occupation of the development, the areas set aside for the parking of vehicles, access lanes and driveways as shown on the endorsed plans must be constructed in accordance with approved construction plans, surfaced with reinforced concrete, asphalt or paving and drained to the satisfaction of the Responsible Authority.
5. Adequate provision must at all times be made on the land for the parking of vehicles associated with the use of the land.
6. Car spaces, access lanes and driveways must be kept available for these purposes at all times.
7. Vehicles under the control of the operator of the use or the operator's staff must not be parked on nearby roads.
8. Vehicle access throughout the land is restricted to one-way as shown on the endorsed plans. All children to be cared for at the centre and transported by motor vehicle must be dropped off and collected on the land. Signs must be displayed to the satisfaction of the Responsible Authority. The operator of the approved use must take all action necessary to ensure that the signs and direction of vehicles are observed by patrons.

1. The location and details of signage shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
2. The signage must be wholly located within the land. No part of the sign may encroach into the declared road reserve.
3. The signage must be designed to a professional standard, constructed and maintained in good condition to the satisfaction of the Responsible Authority.
4. The signage must not be illuminated by external or internal light except with the written consent of the Responsible Authority.
5. The signage must not be animated or flashing and no intermittent lights may be displayed.
6. Before the display of the signage begins, any existing advertising signs on the land must be removed.

1. Before the occupation of the permitted development, all works shown on the functional layout drawing approved under condition 2 must be completed to the satisfaction of VicRoads and at no cost to VicRoads.
2. No work must be commenced in, on, under or over the Nepean Highway road reserve without having first obtaining all necessary approvals under the Road Management Act 2004, the Road Safety Act 1986, and any other relevant regulations created under those Acts.

1. This permit will expire if the development is not completed within three (3) years from the date of issue of this permit. In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] See eg Healy v Surf Coast SC [2005] VCAT 990.

[2] Petzierides v Hobsons Bay CC [2012] VCAT 686.

[3] Mount Eliza Action Group Inc v Mornington Peninsula SC [2010] VCAT 699] at [6]- [42].