J Bartholomeuzz, P Grant, D Ross, D Murray, V Hoppe, F Wagland, G Greller, R Hancock and H Stang

Mr E Upton for his wife and Upton Nominees Pty Ltd.

G Armstrong, L Stretton, V Elkmen and A Morton in person.

1

Wilmar Child Care Centre Pty Ltd has lodged an Application for Review against the decision of Glen Eira City Council to refuse a permit for alterations and extensions to an existing child care centre, variations to the layout of the child care centre and extension of the use into an adjoining property at 42 Dalmore Avenue to accommodate car parking and playground facilities.

2

Glen Eira City Council is opposed to the application on the basis that:

1. The proposal intensifies the use in a location that is inappropriate because of the predominant residential nature of the neighbourhood.

2. The amenity of the area will be adversely affected as a result of the massing and scale.

3. The proposal is an overdevelopment of the land and is not appropriate to the neighbourhood in that it is located on a minor road in a quiet residential area.

3

It is noted that Mr Soding, on behalf of the council, withdrew one of the Grounds of Refusal relating to non-compliance with Clause 54.01-1 as such clause was irrelevant to the consideration of this application.

4

Objectors raised various concerns and these fall within the following headings:

•

Amenity impacts such as excessive noise and disturbance

•

Traffic and parking problems

•

Extension to a non-residential use

•

Visual impact of the proposed new development

•

Inadequate landscaping

•

Contrary to Local planning policy directions

•

Non-compliance with previous planning permits

5

Wilmar Child Care Centre argued that:

•

The proposed infill development is modest, maintains the integrity of the existing dwellings, does not unreasonably impact on the heritage significance of the area, and no adverse amenity impacts will be caused by the development.

•

The revised access and parking arrangement will improve the centres' facility and provide safe and convenient access/parking for staff and visitors of the centre, while improving the amenity for neighbouring properties.

•

The proposal will upgrade the appearance of the centre by virtue old new fencing and landscaping.

•

The proposal will not increase the level of activity associated with the facility, while the proposed buildings, and works and the extended playground facility will not result in any unreasonable amenity impacts.

•

The proposal provides an opportunity to upgrade and improve the existing facilities for management, staff and users of this local facility.

6

It is proposed to undertake a number of internal alterations to two existing buildings, extend the building by filling in the area between the two buildings and introducing a second floor level for office accommodation and storage (within the roof space). It is also proposed to relocate three existing car parking spaces which are placed directly at the front of the site to the northern side of No 42 Dalmore Avenue and introduce a curved vehicular driveway. The children's play ground would also be expanded into 42 Dalmore Avenue. There is to be no increase in the number of children to be accommodated nor is there to be any change to the hours of operation of the current use.

7

In November 1986 a permit was granted by the Council for the use of 38 Dalmor Avenue as a child care centre for 30 children. This application generated 36 objections from residents who appealed Council's decision. The appeal was disallowed by the then Planning Appeals Board.

8

In May 1989, a permit was issued by Council allowing expansion of the child care centre into 40 Dalmore Avenue. This permit authorised the increase in the number of children from 30 to 45. This application generated nine objections from residents who appealed. This appeal was subsequently withdrawn.

9

In January 1994 two applications for permit were lodged, one for alterations and additions and a separate one for an increase in child numbers. Council approved the former but refused the latter application. An appeal was lodged by the applicant regarding the condition that restricted the number of children to what was previously approved (45). The then Administrative Appeals Tribunal determined to disallow this condition and an amended permit was issued at the direction of the Tribunal allowing 60 children on the site at any one time.

10

There were various conditions imposed by Caulfield Council, the Planning Appeals Board and the Administrative Appeals Tribunal including installation of acoustic fences, noise and related amenity issues.

11

The subject site is located on the western side of Dalmore Avenue about 100 metres south of Foch Street. It comprises a vacant allotment (42 Dalmore Avenue) and two buildings originally erected as detached dwellings sitting side by side at 38-40 Dalmor Avenue. The review site now has a total frontage of 41.22 metres and a depth of 45.7 metres. Land area is 1884.3 square metres.

12

Adjoining properties comprise a detached house to the south at 36 Dalmore Avenue, two single storey dwellings to the north at 44 Dalmor Avenue and detached houses behind in Malane Street. Land opposite also comprises single storey detached housing.

13

Dalmore Avenue is an attractive tree lined quiet suburban street in Ormond. Most houses are detached single storey construction of the inter-war era. Some of these dwellings contain two storey extensions, usually of a recessive nature. Most of the two storey houses are located closer to the southern section of Dalmore Avenue near the Ormond Activity Centre.

14

The general consistency in built form, age and configuration of buildings has been recognised by the Council in 1996 heritage study and the area now is covered by Heritage Overlay HO75. The two existing dwellings on the site are listed as contributory buildings. The locality is well serviced by public transport (trains and buses), parks (E.E.Gunn Reserve to the north) and the shops and community services in and around the Ormond Activity Centre. The responsible authority has identified this area as suitable for further medium density residential housing.

15

The subject site and all properties surrounding are zoned Residential 1 under the Glen Eira Planning Scheme. The relevant purposes of the Residential 1 Zone seek implementation of State and Local Planning Policy including Local planning policies, encouragement of residential development that respects the neighbourhood character, and in appropriate locations allowance of community and a limited range of other non-residential uses which serve local community needs.

16

The site is also affected by the following overlays

•

Heritage Overlay HO75

•

Special Building Overlay (only affecting the rear of the site)

•

Development Contributions Overlay.

17

A permit is required for:

•

Usage of No. 42 Dalmore Avenue for childcare purposes

•

Development under Clause 32.01-4 for a Section 2 use.

It is noteworthy that approval would be required to vary the layout of the site approved under previous permits and in particular CAUL 6800 (see Conditions 1, 2 and 3).

18

There are various planning controls and policies of relevance in this application and these are contained within the following:

•

Clause 19 Urban Design and Built Form

•

Clause 21.08 Institutional and Non-Residential Uses in Residential Areas

•

Clause 22.02 Non-Residential Uses in Residential Zones Policy

•

Clause 21.01 Heritage

•

Clause 22.01 Heritage Policy

•

Clause 43.01 Purpose of Heritage Overlay and Decision Guidelines

•

Clause 65 Decision Guidelines

19

At the review hearing all parties made oral submissions. Mr Bowden, Mr Soding and Mr Connor provided detailed written submissions. I was provided with locality plans, planning scheme maps and policy extracts, and photographs of the subject site and locality. I had undertaken an inspection of the site and locality on the day preceding the review hearing. Having heard all the submissions I consider the following issues require attention:

• Heritage

• Character/streetscape

• Lack of detail

• Noise

• Car parking

• Access

• Other amenity issues

• Local policy

20

I consider the proposed development, and more particularly the two storey extension to be located between the two existing buildings, has not adequately responded to the decision guidelines in Clause 43.01 and local heritage policy. I consider the proposed building will detract from the integrity of the two contributory buildings. This will occur due to the deletion of a number of architectural elements including eaves and at least one chimney. I consider the proposed built form will draw attention to the development rather than being sympathetic to these two contributory buildings.

21

I note the Council's Heritage Adviser had suggested that the two storey infill extension should be far more recessive, and in particular it should be set behind the front walls of both dwellings, the roof form should be lower than both houses and it should be located towards the rear of the existing buildings so that it is less visually dominant.

22

I acknowledge the applicant, following initial consultation with Council officers, set the front of the two storey section back about 2 metres from the line of the dwellings. I consider this is insufficient. I consider the new two storey element should be set back behind the ridgelines of both dwellings and the roof profile should be either lower or appear as a recessive element to the building. A good example of this design approach is found in Figure1 of the council's "Draft Heritage Guidelines". I also consider a number of the architectural features and finishes such as placement of windows should be more sensitively treated and be consistent with the architectural treatment of the front of both structures.

23

Whilst it may have been possible to place conditions on a permit to address these matters, there are a number of other fundamental streetscape issues which also detract from this proposal.

24

From my observation of the Dalmore Avenue streetscape there is a consistent pattern of single detached dwellings set amongst relatively generous gardens. The two buildings currently contribute to this pattern or grain. I am concerned that the placement of such a dominant two storey element between the two buildings will detract from this pattern and it will introduce a much greater building bulk and form which is currently not in existence in Dalmore Avenue. This would be another reason to require the building to be stepped back well behind the front of both dwellings.

25

I also hold concerns about the placement of the car park close to the frontage of 42 Dalmore Avenue. Whilst it is often a sensible approach to place the car parking close to the street frontage, in this case it introduces a relatively large open paved area into the street. This is foreign to the Dalmore Avenue Streetscape and inconsistent with the character of the area. Whilst Mr Bowden offered to provide a greater landscape setback (both from the front and side) this would still emphasise the non-residential usage.

26

I have similar concerns about installation of a circular driveway on urban design, heritage and streetscape grounds. The drive would further emphasise the non-residential activity. Whilst a circular drive may improve pedestrian safety on the site, the disadvantage is the downgrading of the appearance of the front of the site and the streetscape. It would detract from the landscaped setting and further emphasise the non-residential nature of this use.

27

During the hearing I heard various comment about the appropriateness of the existing car park, and whilst I can understand Council's Traffic Engineers encouraging the car park to be relocated, this only tends to push the car parking further within the vacant land. This in tern shifts the parking and interface amenity issues towards 44 Dalmore Avenue.

28

I note that there is no intention to increase the number of children in the premises, nor an increase the hours of operation. Whilst it would be possible to increase the number of car parking spaces to address existing parking problems, the creation of additional car parking tends to create other urban design, heritage and streetscape conflicts. I am not satisfied that the improvements to the internal workings of the current use in the manner proposed justifies the reduction to the appearance of the site and the streetscape.

29

I acknowledge the complaints by neighbours, including the evidence of Mr Greller, about noise and nuisance from the premises. I note the responsible authority has not instigated any enforcement proceedings and I heard no qualified evidence from an acoustic engineer that in one way or another could assist me to verify the amenity concerns. I note however that most of the concerns relate to the existing activity, and whilst I can well understand neighbours to the north, north-east and north-west of Number 42 Dalmore Avenue expressing concern about future noise derived from the expansion of the playground and the car park on 42 Dalmore Avenue there is insufficient evidence one way or another to make findings on this issue.

30

I would suggest that if residents have experienced noise problems they can report these to the responsible authority for further investigation particularly as there are a number of conditions addressing noise and amenity on the permit. Whether they could be enforced or otherwise would need to be tested.

31

I was disappointed with the lack of detail about the proposed playground area. Whilst I acknowledge Mr Bowden's submission that the applicant would rely on the Department of Human Services to determine what could go in that area, I suggest a layout plan based on DHS requirements should have been undertaken. This plan should have included fencing detail, acoustic treatment and landscape treatment and buffers. I do not consider it is my role to design this area on the run after hearing all the submissions from the parties.

32

There were a number of other amenity issues raised such as the keeping of animals including a rooster. I am not sure whether this comes within the ambit of nuisance but I suggest that if these matters are of such high concern to the neighbours they could at least ask the council to investigate these matters. I was not told whether there was any local law regarding keeping of various animals but that would be a first step to investigate.

33

Clause 22.02 of the planning scheme provides some valuable guidance to making decisions about establishing a non-residential use in a residential zone. Whilst this is an existing use a number of objectives have relevance and guide the exercise of discretion. In particular;

•

To integrate non- residential uses into residential areas with minimum impact;

•

To maintain and protect any dwelling/building of historical /cultural significance;

•

To maintain the garden character of the neighbourhood.

Comments made in preceding paragraphs only tend to highlight a number of shortcomings in meeting the above mentioned policy directions.

34

This is a non-residential use in a relatively quiet tree-lined street with heritage buildings contributing to a consistent attractive residential character. Any proposal which seeks to expand and/or change the appearance of the site and its relationship with the Dalmore Avenue Streetscape requires a careful and sensitive approach. That is not to say there should be no change, but the form of change needs to be cognizant of the residential character.

35

As Mr Connor pointed out, when Planning Appeals Board allowed the original 30 child facility, it did so, on the basis that "It also accepts the proposition that Dalmore Avenue is a quite residential street and should retain this essential character. However the Board has reached the view that the proposed use will not involve a change in the residential appearance of the property and so the alteration to the pleasant streetscape will be minimal".

36

Mr Bowden referred me to a number of possible changes to address various shortcomings of the proposal. Some of these changes seemed quite logical in isolation but others tended to create other issues. Some of the changes to landscaping appear a "Band-aid" approach to some of the amenity issues without properly addressing streetscape or heritage matters, similarly a number of council officer recommendations were not adequately addressed.

37

Whilst Mr Bowden illustrated a genuine intent to meet many of the concerns raised by objectors and council some of the suggested changes only tended to draw attention to the difficulty an applicant can encounter in wishing to expand a non residential use in a quiet residential street.

38

I acknowledge that the child care facility has been established for some 18 years and provides a valuable community service. It was established under more favourable planning circumstances, when there were no local policies which could articulate where non-residential uses in residential areas were appropriate. The use has grown, in terms of numbers of children and size over that 18 year period and whilst residents have some difficulty with it, I think Mr Morton probably best summed up the objectors position by saying residents can live with the current activity but would find it difficult to cope with any further increase.

39

Having regard to the original Tribunal decision which had sought to maintain the current residential character I was left with the impression that the use has probably grown to its optimum size and if it is to be enlarged (whether in size or otherwise) the applicant needs to recognise that since the two previous decisions the planning policy matrix and heritage controls make expansion tenuous.

40

Accordingly it might be time to acknowledge that if the Centre is to grow it may have to relocate to a more appropriate location having regard to the limitations in opportunity for expansion and rationalisation of the use.

41

For the above mentioned reasons the responsible authority's decision is affirmed. No permit shall issue for the expansion of use or the new development.