VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P152/2024
Permit Application no.PA2023061 	
CATCHWORDS	
Moorabool Planning Scheme; neighbourhood character impacts arising from a Child care centre.	

Applicant	113 Masons Lane Pty Ltd	

Responsible Authority	Moorabool Shire Council	
Respondents	Kathryn Niessen & Christopher Niessen	
Referral Authority	Melbourne Water	

SUBJECT LAND	113 Masons Lane
BACCHUS MARSH VIC 3340	

HEARING TYPE	Hearing	

DATE OF HEARING	17 October 2024	

DATE OF ORDER	25 October 2024	

CITATION	Masons Lane Pty Ltd v Moorabool SC [2024] VCAT 1028	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	GD Design	
•	Drawing numbers:	01 to 04	
•	Dated:	3 September 2024	
No permit granted
2	In application P152/2024 the decision of the responsible authority is affirmed.
3	In planning permit application PA2023061 no permit is granted.

Michael Deidun
Member			

Appearances
For applicant	Robert Williams, Town Planner of Human Habitats
He called the following witness:
•	Manuel Vezzaro, Traffic Engineer of Wallbridge Gilbert Aztec	
For responsible authority	Mark Lovell, Town Planner of Moorabool Shire Council	
For referral authority	No appearance	
For respondents	Kathryn Niessen  appeared in person	

Information
Description of proposal	The use and development of the land for a Child care centre	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic)– to review the refusal to grant a permit. 	
Planning scheme	Moorabool Planning Scheme	
Zone and overlays	General Residential Zone 2
Special Building Overlay (part)	
Permit requirements	Clause 32.08-2 to use land within the General Residential Zone for a Child care centre
Clause 32.08-10 to construct a building or construct or carry out works associated with a Section 2 use of land in the General Residential Zone
Clause 44.05-2 to construct a building or construct or carry out works on land to which the Special Building Overlay applies	
Relevant scheme policies and provisions	Clauses 02, 11, 13, 15, 17, 19, 32.08, 44.05, 52.06, 65 and 71.02.	
Land description	The land is almost a rectangular allotment, with a frontage to Masons Lane of 42.0 metres, a sideage to Young Street of 33.5 metres, and an overall area of 1677 square metres.  The land presently supports a single storey detached dwelling and an outbuilding. 	
Tribunal inspection	The Tribunal inspected the site and surrounding area prior to the hearing, on 19 September 2024.	

  Reasons
What is this proceeding about?
1	113 Masons Lane Pty Ltd (the ‘applicant’) seeks to review the decision of the Moorabool Shire Council (the ‘Council’) to refuse to grant a permit for the proposed use and development of a Child care centre on land at 113 Masons Lane, Bacchus Marsh (the ‘review site’).  
2	The Council’s decision to refuse to grant a planning permit was made at a meeting of the Development Assessment Committee, following a recommendation from a Council officer that a planning permit be granted, subject to conditions.  The Council’s ground of refusal raises concerns with the potential amenity impacts on nearby residential properties, and the potential traffic impacts on the surrounding road network.
3	One Statement of grounds has been received from a nearby resident (the ‘respondent’).  The respondent’s grounds raises concerns relating to car parking and traffic impacts, as well as the potential acoustic impacts from the Child care centre.
4	Prior to the hearing the applicant circulated amended plans in the proceeding.  In response to the amended plans, the respondent filed an amended statement of grounds that set out the following.
After review of the amended plans for development of a child care centre at 113 Masons Lane, Bacchus Marsh (permit PA2023061) we acknowledge the significant changes which have occurred in order to address our objections on the basis of noise and traffic issues. The addition of the acoustic fencing and the rotation of the site plan by 90° has allowed for the mitigation of noise from the centre while the movement of the car park to the Masons Lane side of the site has alleviated our major traffic concerns. In light of this we would support withdrawal of our objections to this development under the following four conditions:
1. 	The amended plans provided to us on Wednesday 4th September with regards to the rotation of the previous site plans (with ingress and egress off Masons Lane) are the ones which are utilised.
2. 	The capacity of the child care centre remains at 76 children (noting that the indoor/outdoor area measurements in the amended plans do not allow for an increase in this number back towards the original 84 children capacity).
3. 	The acoustic fencing is completed using the compliance information set out in the updated report compiled by Acoustic Waveforms dated 28th August 20241, specifically 
a. 	2m minimum height with a minimum surface mass of 15kg/m2,
b. 	Fence construction:
i. 	25mm thick timber palings,
ii. 	Each paling to overlap a minimum of 35mm,
iii. 	1 x layer of 3mm fibre cement sheeting,
c. 	No breaks in the acoustic fence system, as any penetrations will reduce the efficacy of the system.
d. 	Any penetrations between palings must be sealed with Selleys Flame Flex (installed via manufacturer’s requirements for an acoustic seal).
e. 	The fence system must be inspected after 6 months to ensure that any gaps are sealed, as wood is likely to warp as it dries in position.
4. 	The waste collection is conducted outside of operating hours to ensure smooth manoeuvring of the vehicle through the car park area while still complying with the EPA Publication 1254 ‘Noise Control Guidelines’ of not after 8pm on any day and not before 7am weekdays or 9am on weekends.
5	In response to the amended plans, the Council now also raises concerns regarding the proposed built form, and the impact on the surrounding neighbourhood character.
6	The issues or questions for determination are:
a.	Is the proposed use and built form an appropriate response to its context?
b.	Will there be any unreasonable off-site amenity impacts?
c.	Does the proposal appropriately provide for car parking and traffic movements?
7	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Moorabool Planning Scheme, I have decided to affirm the Council’s decision, and direct that no planning permit be granted.  My reasons follow.

Is the proposed use and built form an appropriate response to its context?
8	The amended plans make a significant change to the siting and design of the proposed built form.  Previously the proposal had the building setback behind a car park and the outdoor play area from the two respective street frontages, as set out below.

9	In response to this original layout, the Council raised no neighbourhood character concerns.  The amended plans take a very different approach to the proposed layout of the site, and the relationship between the street frontages and the proposed built form, as set out in the following extract from the amended plans that were substituted at the commencement of the proceeding.

10	The amended plans now place the proposed building on the review site at a setback of 2.0 metres from Young Street, and 2.49 metres from Masons Lane.
11	As a result, the Council now submits the following.
116.	The latest set of plans have made the proposal a more visually dominate building within an established residential precinct comprised of low rise housing stock. 
117.	Rather than conceal exposure of the built form by large setback to both Young Street and Masons Lane and with large front landscaping treatments have instead moved the building to the street corner with limited frontage setbacks of between 2.0m to 2.4m and limited opportunities for landscaping screening to the proposed building. 
118.	These minimal setbacks can not be considered respectful of the neighbourhood character where front open setback with landscaping is reflective of the surrounding properties. 
119.	The land area of the subject land is large as demonstrated by the previous design concept whereby the proposed building was concentrated in the opposite corner and located adjacent public open space. This previous design concept at least attempted to minimise off site impacts through the location of the building. 
120.	The latest set of plans have created a poorer design response by exposing the building form to the street corner and the design of the building is not residential in scale or layout. 
121.	The child care centre clearly contrasts and competes with the predominately single storey streetscape in Masons Lane and Young Street. 
…
144.	In relation to this VCAT decision, the site context in the current application for review is crucial as it within an established residential precinct that has limited future change, does not abuts a main road where commercial activity could locate and will have a prominent car park with minimal setback to the street frontage. 
145.	The design and layout in the current application for review based on the substituted plans will have prominent commercial appearance that is disconnected from its residential context. 
12	The review site is located on the edge of a residential neighbourhood, and absent of any direct residential abuttals.  The review site is a corner allotment with two road frontages, and abuts to its east and south public open space.  The absence of any direct residential abuttals is an opportunity for the review site, but any proposal will still be read in the context of the residential streetscapes which provide two of the interfaces to the review site.  Further, the review site is located within the General Residential Zone.  It is therefore reasonable to expect that new development on the review site will be responsive to the neighbourhood character presented in the two abutting residential streetscapes.
13	The General Residential Zone contains the following purposes.
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To encourage development that respects the neighbourhood character of the area.
To encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport.
To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations.
14	The land is located within Schedule 2 to the General Residential Zone (GRZ2).  Schedule 2 to the zone contains the following Neighbourhood character objectives.
To encourage new development, including innovative and unique development that enhances and responds positively to the existing neighbourhood character.
To encourage an increase in landscaping within the public and private realm.
To encourage new development to respect existing setbacks within the streetscape.
To encourage new development to have minimal or low scale front fencing.
To ensure garages, carports, and second storey development do not visually dominate dwellings or streetscapes.
15	Schedule 2 also contains the following single decision guideline.
Whether appropriate sized open space and setbacks are provided for the retention and growth of existing and new canopy trees.
16	Policy at Clause 11.01-1L-02 identifies the review site as within a Natural Residential Growth Area, which are provided with the following policies.
In Natural Residential Growth Areas:
•	Allow for modest housing growth and a variety of housing typologies while maintaining detached houses as a dominant housing type. 
•	Support low scale, medium density housing and alternative housing typologies (such as co-housing, retirement villages, aged care) in areas that are accessible to public transport, activity centres and open space. 
•	Encourage well designed infill development, including multi-unit developments, that complements the preferred character of the area. 
17	The final dot point above refers to the preferred character of the area.  The only preferred character identified in the Moorabool Planning Scheme are the Neighbourhood character objectives found at GRZ2.  
18	In addition, policy at Clause 15.01-5L Landscape and neighbourhood character contains the following strategy.
Encourage development that protect and enhances the existing character, built form, natural environment, country town scale and rural atmosphere of each town.
19	The Council in its submissions also refers to a preferred character statement for Precinct 19, that is found in the Housing Bacchus Marsh to 2041 (Moorabool Shire Council, updated 23 May 2018).  The Housing Bacchus Marsh to 2041 is a background document.  Unlike an incorporated document, a background document does not form a part of the Moorabool Planning Scheme, and is not to be relied upon to inform a decision on a planning permit application.  Further, there is no policy in the Moorabool Planning Scheme, that directs me to consider the preferred character statements found in the Housing Bacchus Marsh to 2041.  
20	To the extent that it is relevant, the preferred character statement for Precinct 19, that includes the review site, is set out below.
This precinct will generally maintain a streetscape rhythm of detached dwellings with conventional front and side setbacks. Built form to one boundary may be appropriate where the preferred character of the precinct is not compromised. Boundary to boundary development should be avoided. 
Built form will generally be of a modest scale, however innovative and unique built form, that enhance the character of the precinct will be encouraged. New development located in close proximity to dwellings that exhibit historical architectural styles should not compromise the intact existing character of these dwellings. 
Multi-dwelling developments should minimise the need for additional crossovers to the street, be located on lots within the precinct that are within a walkable distance of some services and facilities and have minimal impact on the streetscape rhythm and pattern. Therefore, some lots within the precinct may not be suitable for further intensification. 
Low scale or no front fencing is preferred which will allow views into landscaped front gardens. Built form will not dominate the lot and will create opportunities for generous private open space and garden plantings. Increasing canopy tree cover will assist in improving the landscape within the precinct, while also achieving a balance between open space and built form.
21	Finally, the State policy at Clause 19.02-2S Education facilities also contains policies relevant to Child care centres.
22	The applicant’s written submissions assume that the Council does not oppose the proposal on neighbourhood character grounds, and quotes part of the Council report.  It also sets out the following written submissions.
39.	We agree with this assessment and submit that the proposal achieves an appropriate character and landscape outcomes through:
•	Adopting a single storey scale, which is consistent with surrounding development.
•	Providing landscaping to all boundaries, including trees and understorey planting along both street frontages.
•	Providing a minimum 2 metre landscape setback to Young Street and 2.49 metre landscape setback to Masons Lane.
•	A total site coverage of 31.67% and minimum permeability of 38.9%.
•	No front fencing to Masons Lane or Young Street.
23	Mr Williams was able to make oral submissions on behalf of the applicant in response to the amended position of Council in this proceeding.  Orally the applicant submits that the amended layout achieves an appropriate balance to the competing objectives that apply to the review site.  They submit that the proposal avoids interrupting the existing residential streetscape and rhythm of dwellings, by being located on the opposite side of the street from the existing dwellings and as part of a community precinct.  They also argue that the proposed building is not a tall building, and therefore will not dominate the streetscape.
24	In response to the Council’s criticism of the front setbacks, the applicant submits that the siting of the proposed building provides an acoustic barrier to dwellings in Young Street, is intended to hold the corner while providing active frontages to both streets, and will be read as part of the precinct with the adjacent public open space.  Mr Williams submits that the proposed siting is a better urban design response than having the building set behind a car park.  Finally, the applicant submits that the surrounding residential character is mixed with smaller setbacks to new medium density development, and little landscaping.
25	I am not persuaded by these submissions, and instead find that the proposal is not an appropriate built form response to the surrounding neighbourhood character.  I make this finding for the following reasons.
26	The proposal will present as a broad façade with a very shallow setback from Young Street.  The setback and width of the façade is characteristic of a commercial form of development, that one might expect to find in the Commercial 1 Zone.  The presentation of a flat roof form to Young Street reinforces this appearance of a commercial development.  In contrast, the surrounding residential neighbourhood comprises single detached dwellings on traditional sized allotments.  As such, these dwellings have a consistent character when it comes to front setbacks, depth of front gardens, width of front facades, pitched roofs, rhythm of development in the streetscape and breaks between buildings.  
27	The proposed development on the review site presents a built form that contrasts with the aforementioned elements of the surrounding neighbourhood character.  Indeed, the proposal as a whole will appear as an uncharacteristic and contrasting built form in Young Street.  I recognise that child care centres need to take on a larger built form, and may have elements of siting or scale that contrast with the character found in the surrounding traditional detached housing stock.  However, it is also possible to design child care centres to respond to some common elements of a surrounding neighbourhood character, including front and side boundary setbacks, depth of front setbacks, rhythm and spacing of buildings, and pitched roof forms.  The fact that this proposal does not attempt to reflect or respond to any of these elements of the surrounding residential neighbourhood character, makes it an intrusive and inappropriate response to its context.
28	For the reasons set out above, the proposal fails to achieve the Neighbourhood character objectives set out in GRZ2 of the Moorabool Planning Scheme, in that the proposed design response:
a.	Fails to enhance or respond positively to the surrounding neighbourhood character;
b.	Does not increase the amount of landscaping in the private realm, that would be visible in the Young Street streetscape; and,
c.	Completely disrespects the existing front setbacks in the streetscape.
29	The proposal would also fail to provide for new canopy trees in the front setback, noting that a series of Bungalow Palms are proposed, which are not reflective of the surrounding landscape character.  As such, the proposal would not measure well against the single decision guideline in GRZ2.  It would also fail to achieve the policy quoted above from Clause 15.01-5L of the Moorabool Planning Scheme by failing to protect and enhance the existing character of this part of the residential area of Bacchus Marsh.
30	In response to the applicant’s oral submissions as summarised earlier in these reasons, I make the following observations.
a.	I am not persuaded that the proposed building avoids interrupting the existing streetscape character and rhythm of dwellings, simply because the Child care centre building is located opposite the existing dwellings.  Both sides of the Young Street streetscape contribute to the existing neighbourhood character, and as the land is within the GRZ2, new development on the review site is expected to contribute to the Neighbourhood character objectives set out in the Schedule to the zone.  For the reasons set out above, the proposal fails to achieve this outcome.
b.	While the proposed building is single storey in height, its small front setback, width of façade, parapet wall form with a flat roof and limited articulation will unreasonably dominate and contrast with the Young Street streetscape.
c.	I am not persuaded that this is a site where a new building should hold the corner, while providing active frontages.  The review site sits in a residential neighbourhood, and it is not characteristic for buildings in this neighbourhood to hold a corner in the manner now proposed for the review site, or have the type of setbacks and width of façade now proposed for the review site.  To the extent that the design could be argued to respond to the precinct of community uses created by the adjacent public open space, on Young Street that public open space presents as an open grassed area which falls away from the street.  The adjacent public open space therefore presents a contrasting element to the prominent built form with a narrow front setback to Young Street that is proposed on the review site.
d.	While the manner in which the proposed building will provide an acoustic barrier is a positive element, the provision of acoustic attenuation could be achieved in a number of ways, and cannot justify the uncharacteristic built form that is now proposed for the review site.
e.	While some nearby examples of medium density development may have smaller front setbacks, these are still generally in the order of 5.0 metres or more, which is substantially more than that proposed to Young Street on the review site.  Further, the surrounding examples of medium density development have other built form elements that respond to the surrounding neighbourhood character, including deeper front gardens, a higher level of articulation, relatively narrow façade widths and pitched roofs.
31	Finally, Mr Williams submits that the Council places too much weight on the existing and preferred neighbourhood character, and insufficient weight on other policy objectives, in an area where there is no policy or Neighbourhood Character Overlay seeking a particular character outcome.  I am not persuaded by this submission, for the following reasons.  Even in such circumstances, response to the existing or preferred neighbourhood character is a purpose of the zone, and the GRZ2 Schedule confirms that certain Neighbourhood character objectives apply to this neighbourhood.  Proposals for various Section 2 uses in the residential zones are expected to respond to the surrounding neighbourhood character, and this is a common element of the assessment of Child care centre proposals.  Where a proposal contrasts significantly with the existing neighbourhood character, and there is no specific policy support for such an outcome, it will likely be a reasonable point on which to criticise a proposal.
32	For these reasons I find that the proposed built form is not an appropriate response to its context, the surrounding neighbourhood character, and the guidance provided by the Moorabool Planning Scheme.  While the proposal does comprise some benefits that are relevant on a net community benefit analysis, including the provision of additional community facilities, those benefits cannot outweigh the substantial disbenefit provided by the poor response to the surrounding neighbourhood character.
33	It therefore follows that I will affirm the Council’s decision and direct that no planning permit be granted.
34	Given this finding, there is no need to proceed to undertake the remainder of the assessment of this proposal, in relation to off site amenity impacts and the provision of car parking and traffic movements.
Conclusion
35	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Michael Deidun
Member