Wilson v Monash CC [2007] VCAT 1397

The decision of the Responsible Authority is set aside. In permit application TPA/34223 a permit is granted and directed to be issued for the land at 11 & 13 Marianne Way, Mount Waverley. The permit allows the use and development of the land for the purpose of an 80 place child care centre and the removal of vegetaation in accordance with the endorsed plans and subject to the following conditions:

1. Before the development starts, three copies of amended plans drawn to scale and dimensioned, 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 generally in accordance with those considered by the Tribunal, but modified to show.
   1. Surfacing of the front setback area in materials/colours to the satisfaction of the responsible authority.
   2. The provision of an acoustic fence along the eastern and northern boundaries of the playground located in the north east corner of the site.
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. No more than a maximum of 80 children are to be accommodated on the premises.
4. There is to be no more than 12 staff at the premises at any given time.
5. The hours of operation are restricted to Monday to Saturday between 7:00 am and 7:00 pm.
6. The pick up drop off accessways must be kept clear at all times for the circulation of traffic. Management of the centre is to ensure that no parking in this area is to occur.
7. Access driveways, car parking spaces and the stormwater drainage system shall be constructed and maintained to the satisfaction of the Responsible Authority. All redundant vehicle crossings shall be reinstated with curbing and nature strip in keeping with the street.
8. No form of public address system shall be installed so as to be audible from outside the building.
9. The use hereby permitted shall not cause injury to or prejudicially affect the amenity of the locality by reason of the processes carried on, the transportation of materials, goods and commodities to and from the premises or by reason of the appearance of any building, works or materials or by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam soot, ash, dust, waste paper, waster products, grit, oil or of the presence of vermin or otherwise.
10. Before the development hereby permitted starts three copies of a landscape plan drawn to scale, dimensioned and prepared generally in accordance with the John Patrick Landscape Architect plan, must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will form part of the permit. The landscape plan is to specify all species, size at planting and maturity. The landscape theme is to be in keeping with the neighbourhood and advanced species are to be planted. Trees with spreading canopies are to be included in the plan for the front setback and rear playground areas. The plan must show the proposed landscape treatment of the site including:-
    • the location of all existing trees and other vegetation to be retained on site
    • provision of canopy trees with spreading crowns at appropriate locations throughout the site
    • planting to soften the appearance of hard surface areas such as driveways and other paved areas
    • a schedule of all proposed trees, shrubs and ground cover, which will include the size of all plants (at planting and at maturity), their location, botanical names and the location of all areas to be covered by grass, lawn, mulch or other surface material
    • the location and details of all fencing
    • the extent of any cut, fill, embankments or retaining walls associated with the landscape treatment of the site
    • details of all proposed hard surface materials including pathways, patio or decked areas

When approved the plan will be endorsed and will then form part of the permit.

1. Before the use commences at No. 13 Marianne Way the landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.
2. This permit will expire if one of the following circumstances applies:
   • The use and development is not started within two years of the date of this permit.
   • The development associated with the use is not completed within four years of 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.

Mr Crawford called Mr B Collins, town planner of Taylors Development Strategists, Ms L Nadebaum, landscape architect, and Ms C Dunstan, traffic engineer of the Traffix Group

1. This is an application to review the decision of the responsible authority to refuse permission for alterations and additions to an existing child care centre and for an increase in the capacity of the centre at 11-13 Marianne Way from 55 to 80. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:
   1. The proposal is not consistent with the Clause 22.09 of the Monash Planning Scheme, being Council's Non Residential Use and Development in Residential Area's Policy .
   2. The proposal does not provide for sufficient on site car parking.
   3. The proposal will have a detrimental impact on the character of the area.
   4. The proposal will have a detrimental impact on the amenity of the area.
   5. The proposal fails to address disabled access requirements.
   6. The proposal is inappropriate having regard to the proper and orderly planning of the area.
2. At the commencement of the hearing Mr Crawford applied to amend the permit application by (a) the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements, and (b) amending the description of the proposal to include reference to the removal of a tree. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Crawford's request.

1. An existing child care centre catering for 55 children operates from 11 Marianne Way which is an irregular shaped lot located on the north side of the street. The site has a frontage to Marianne Way and presents to the street as a modest, single storey dwelling. This dwelling has been converted internally for use as a chilled care centre and various extensions and alterations have also been carried out, primarily to the rear to accommodate that use. The capacity of the centre is currently limited to 55.
2. The property abutting to the east (13 Marianne Way) is occupied by a dwelling but the rear portion of that lot has been subdivided and consolidated with no.11 Marianne Way. This rear portion is currently set aside for car parking purposes for no.11 and the car park is accessed via the driveway which is a carriageway located between no.11 and no.13.
3. The permit authorising the use of no.11 as a child care centre was issued in 1994, and a subsequent permit was issued in 1995 for the subdivision and to increase the capacity of the centre from 32 to 55
4. The application before me comprises both 11 and 13 Marianne Way. The total site has an area of 1579 m2 with a frontage of 37 m and a depth of approximately 42m. The site has a fall of 5.12m from the north east to the south west.
5. Marianne Way is a local, 7m wide street which runs in a "reverse L" shaped alignment between Stephensons Road to the west and Highbury Road to the north. Surrounding land uses comprise predominantly detached dwellings although I was provided with information which would indicate that a level of redevelopment in the form of medium density housing is occurring within the neighbourhood. A small park adjoins no.11 on its western boundary.
6. The Mt Waverley Secondary College is located on Stephensons Road approximately 130 m to the west and also to the south in Gordon Road. A primary school is located about 700 m to the east.

1. It is proposed to increase the capacity of the child care centre from 55 to 80. The existing centre on no.11 will continue to operate largely unchanged, and the dwelling at no.13 will be modified to accommodate the additional 25 children, who will primarily be in the 3 years and older age group. The two buildings will be connected by a covered link building.
2. The existing car park located at the rear of no.13 is proposed to be converted into an expanded playground. A 12 space car park is proposed within the front setback of both no.11 and 13. An existing tree (liquid amber) located in the front of no.11 is proposed to be removed to accommodate the car park and vehicular access.

1. The site is zoned Residential 1 under the Monash Planning Scheme. A Child Care Centre is a section 2 permit required use in the zone. A permit is required for buildings and works associated with a section 2 use.
2. A Vegetation Protection Overlay (VPO1)applies to the land and the surrounding area. The vegetation protection objective to be achieved is to "....conserve significant treed environments and ensure that new development complements the Garden City Character of the neighbourhood". A permit is required to remove or destroy a tree which has a trunk circumference greater than 500mm (160mm diameter) at 1200mm above ground level and is higher than 10 metres, unless exempted.
3. I note that an application made under the VPO1 is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act.
4. Decision guidelines under the VPO1 require consideration of the reason for removing or destroying the vegetation and the practicality of alternative, options, the practicality and benefits of relocating significant vegetation, and the condition and quality of the vegetation.
5. Car parking must be provided in accordance with Clause 52.06. Where a use is not specified in the table at Clause 52.06-5, as is the case with a child care centre, an adequate number of car spaces must be provided to the satisfaction of the responsible authority.
6. Clause 22.09 is a local policy titled non Residential Use and Development in Residential Areas. With respect to child care centres, locational criteria encourage these uses close to activity centres and on higher order and busier streets and roads, and on corner sites. Design criteria emphasise the need for developments to respond to the existing character of an area and the retention where feasible of existing residential buildings. Car parking is to comply generally with Clause 52 and the Council's Guide to Car Parking in Monash. A reliance upon on-street car parking is discouraged. Landscaping which is consistent with a Garden City concept is encouraged as is the buffering of parking areas and the retention of canopy trees.
7. Clause 22.01 is a Residential Development and Character Policy. The review site is located within Character Area C of the Council's urban character study. The area is described as being characterised by consistently setback single storey, dwellings dating from the 1950's and 1960's.

1. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

1. The Council's principal concerns with the extension of the child care centre focussed on the impact it would have on the character of the neighbourhood as a consequence of the relocation of the car park to the front of the site and the loss of the mature liquid amber in the front setback. Ms Moser submitted that the proposal would lead to the replacement of the existing landscaped front setback with a hard paved car park. In Ms Moser's submission, this outcome is not consistent with the Council's neighbourhood character policies for this locality, which emphasise the need to retain canopy trees as part of the landscaped setting, which is characteristic of this neighbourhood.
2. The Council also submitted that the proposed increase in the capacity of the centre is not matched by a corresponding increase in the provision of car parking, and that the proposal does not meet the Council's car parking policy. The existing centre provides eight parking spaces although one of those spaces is not useable because of its proximity to an emergency access gate. It is proposed to increase the car parking provision to 12 on site spaces, and Ms Moser submitted that of the 12 spaces, 5 will be for the expanded use and that therefore the supply of parking for the existing use will be reduced by 1.
3. The objector's shared the Council's concerns regarding the loss of the tree and the adequacy of the car parking provision. The objectors also raised additional concerns based upon their experience of traffic volumes and speeds in the street. Marianne Way was described as a street which is adversely affected by its proximity to the secondary college campuses which contribute to on street car parking and non resident traffic movements. It was submitted that the existing child care centre contributes to the problems experienced by residents in the street and that these difficulties will be exacerbated by an expansion of the centre.

1. I have decided to direct the issue of a permit for this proposal primarily because I do not regard the neighbourhood character issues associated with it to be so great as to warrant a refusal of the application. I have also been satisfied that the increase in the capacity of the centre will be unlikely to contribute to unacceptable impacts associated with increased car parking and traffic management issues.
2. With respect to the neighbourhood character issue, I acknowledge that the proposal will lead to a relocation of the car park into the front setback and the consequent loss of the liquid amber, and that this will have a visual impact on the site's presentation in the street. This visual impact however needs to considered in the context that the existing use of the land is non residential and I think it is unrealistic to apply the neighbourhood character tests commonly applied to the consideration of a residential proposal, should also be applied to a non residential proposal.
3. The character impacts also need to be assessed in the context of the benefits to be derived by the community as a whole through the provision of additional child care spaces.
4. This is not to say that a non residential use such as a child care centre should not seek to respect the character of the neighbourhood. The Council's policies encourage such proposals to do so. However, a non residential use will have visual impacts which are different to a residential development and this is to be expected. For example, car parking needs to be provided for the non residential use. In the present case, the car parking for the existing use has been provided to the rear where its impacts on neighbourhood character are minimal, but where access to it has proven to be inconvenient and it is therefore underutilised. Consequently, the benefits associated with providing on site parking have been reduced. I think that some of the objector's concerns about the level of on street car parking is at least in part a response to what appears to be a reluctance on the part of the centre's customers to use the inconvenient rear car park.
5. The proposal represents an opportunity to relocate and reconfigure the car park so that it is better able to provide for effective on site parking, and this is not an insignificant benefit. The down side course is that the car parking will become, if not prominent in the streetscape, then certainly more visible than is currently the case. The loss of the tree is a further adverse affect of the proposal, however I do not think that either of these impacts are fatal to the application. I am satisfied that the landscape concept presented by Ms Nadebaum will be sufficient to filter views of the car park and to compensate for the loss of the tree. The implementation of the landscaping will be sufficient to ensure that the valued character of the area reflected in its landscaped setbacks will be retained. The loss of one tree, albeit one large tree, will not have a significant impact on the treed environment of the locality, especially when it is considered that its loss will be compensated for by replacement planting. I am satisfied that the objective of the VPO1 is met.
6. Also contributing to my conclusions on the neighbourhood character issue is the fact that both dwellings on nos. 11 and 13 are to be retained and this is an outcome consistent with the Council's policies for non residential uses in residential areas. Visually, the use will continue to present as two dwellings in the streetscape.
7. Turning to a consideration of the car parking issue, I accept Ms Dunstan's evidence that the relocation and reconfiguration of the car park represents a significant improvement to the existing situation and contributes to a more accessible, safer and more efficient car parking provision.
8. With respect to the quantum of parking spaces now proposed, it was Ms Dunstan's evidence that, based on an empirical assessment of other child care centres, the provision of 12 spaces will have the impact of reducing the demand for on street parking from the observed existing level of between 6 and 8, to 4. This is likely to be achieved at least in part by the improved accessibility to the car park.
9. I was not presented with any contradictory empirical evidence regarding the provision of car parking at child care centres and I note that the appropriate parking rate identified by Ms Dunstan is consistent with that which has been accepted by the Tribunal in many other child care centre cases.
10. I am satisfied therefore that the proposed additional car parking, combined with the relocation of the car park, will be sufficient to accommodate the increased capacity of the child care centre. I am also satisfied that the level of on street parking needed to support the use is unlikely to increase and in all likelihood, will be reduced to 4 spaces. These spaces can be, and are likely to be, accommodated along the street frontage of the review site.
11. I acknowledge that Marianne Way carries a traffic volume of up to 1,500 vpd but this is primarily a function of the street's alignment that connects Stephensons Road to the west and Highbury Road to the north. The secondary college campuses in the immediate neighbourhood are also likely to contribute to traffic volumes in the street. To the extent that these features create local traffic management and residential amenity considerations, this is a matter for the Council to address through the implementation of local area traffic management measures. The additional 21 peak hour vehicle movements which were identified by Ms Dunstan as being generated by this proposal, will not significantly impact on the capacity of the street network to accommodate traffic volumes, or adversely impact on the residential amenity as a consequence of increased traffic movements.
12. There was some discussion during the hearing about the necessity for the removal of the tree and whether its retention would adversely impact on the provision of on site car parking. It was the evidence of Ms Dunstan (supported by the evidence of Ms Nadebaum) that the retention of the tree would lead to the loss of 2 on site spaces. Having regard to my findings about the adequacy of the landscape treatment to compensate for the loss of the tree, I do not think that the retention of the tree is warranted in terms of the impact it would have on increasing the reliance on on-street parking.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit be granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.
3. The conditions I have imposed and the preamble to the permit operate in such a way as to provide an omnibus permit for the child care centre as a whole rather than for the extension only. This provides the opportunity to consolidate the approvals and conditions into a single permit rather than fragmenting them across a range of permits as currently exists.