VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1210/2024
Permit Application no.PLP/2023/272 	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987 (Vic) – Ballarat Planning Scheme – General Residential Zone (Schedule 1) – Use and development of a child care centre – discretionary use in residential zone – streetscape – noise – traffic and car parking impacts – amenity impacts    	

Applicant	Sai Kumar Sangireddy	

Responsible Authority	Ballarat City Council	
Referral Authority	Department of Transport & Planning	

SUBJECT LAND	423 Cobden Street
MOUNT PLEASANT VIC 3350	

HEARING TYPE	Hearing	

DATE OF HEARING	27 May 2025	

DATE OF ORDER	23 June 2025	

CITATION	Sangireddy v Ballarat CC [2025] VCAT 552	
Order
Amended Plans
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Petridis Architects	
•	Drawing numbers:	Job No. 23-13, TPA01-TPA09 (inclusive)	
•	Dated:	2 April 2025	
•	Landscape Plan prepared by:	John Patrick Landscape Architects Pty Ltd	
•	Drawing numbers:  	Job No. 25-127, VCAT-00	
•	Dated:	April 2025	

Vary Responsible Authority Grounds 
2	Leave is granted for the variation to the statement of grounds relied upon by the responsible authority. The varied statement of grounds is set out in Appendix A.
Permit granted
3	In application P1210/2024 the decision of the responsible authority is set aside.
4	In planning permit application PLP/2023/272 a permit is granted and directed to be issued for the land at 423 Cobden Street Mount Pleasant VIC 3350 in accordance with the endorsed plans and the conditions set out in Appendix B.  The permit allows:
Planning scheme clause	Matter for which the permit has been granted	

Clause 32.08-2	Use of a child care centre	
Clause 32.08-10	Construct a building, or construct or carry out works associated with a child care centre	

Cassandra Rea
Member			
Appearances
For applicant	I. Plakidis, town planner, together with the following witnesses called to give evidence:
A. Lloyd, acoustics
M. Spaull, landscape design
M. Wollard, traffic	
For responsible authority	J. Kane, barrister
N. Calleja, town planner, for the without prejudice conditions discussion	
For referral authority	No appearance	

Information
Description of proposal	The proposal seeks the use and develop the land for a child care centre, with a capacity of 84 children. 
The building will be single storey (maximum 4.69 metres in height) with a low- angle skillion roof at its entrance, and a flat roof form for the remainder of the building. 
The building will be setback a minimum of 5.0 metres from Cobden Street and 3.28 metres from Peady Street (excluding verandahs and canopies).
A parking area for 18 cars will be provided at the north-eastern section of the site, with access from Peady Street.    
Proposed hours of operation are 6.30am to 6.30pm on week days.  	
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	Ballarat Planning Scheme	
Zone and overlays	General Residential Zone (Schedule 1)	
Permit requirements	Clause 32.08-2: Use of a child care centre
Clause 32.08-10: Construct a building, or construct or carry out works associated with a child care centre	
Key scheme policies and provisions	Clause 02, 11, 11.01-1R, 13.04-1, 13.05-1S, 13.07-1L, 15.01-5S, 15.01-5L, 32.08, 52.06, 52.34 and 71.02.	
Land description	The site is located on the corner of Cobden Street, Peady Street and Trethowan Street.  The frontage to Cobden Street is 24.2 metres, Peady Street of 73.8 metres and Trethowan Street of 17.56 metres. 
The overall size of the site is 1,840m².
Currently located on the site is a single storey weatherboard dwelling with a metal hipped roof form, a large shed and outbuildings in the rear. 
Vehicle access is currently from Peady Street. 	
Tribunal inspection	5 June 2025   	

Figure 1: Extract of Site Plan TPA01

  Reasons
What is this proceeding about?
1	On 30 September 2024 Ballarat City Council (‘council’) issued a Notice of decision to refuse to grant a permit for the use and development of land for a child care centre for the site at 423 Cobden Street, Mount Pleasant (‘site’).
2	The grounds of refusal relate to:
a	The proposed use is not appropriate for the residential location and does not respond to the purposes of the General Residential Zone and planning policy at clauses 13.07-1S (Land use compatibility) and 13.07-1L (Non-residential uses in residential zones) of the Ballarat Planning Scheme (‘scheme’);
b	The proposed buildings and works fails to respond to clauses 15.01-1S and 15.01-1L (Urban Design) of the scheme which will result in poor internal amenity, lack of passive surveillance and outlook, limited sense of address, appearance of the building that does not respond to neighbourhood character, and insufficient landscaping around the car park; and
c	Insufficient detail is provided on the plans in relation to the waste and store building, location of plant and machinery, and fencing.  
3	Sai Kumar Sangireddy (‘applicant’) seeks a review of council’s decision to refuse the application.  The applicant submits that:
a	The child care centre will legitimately serve local community needs, and are uses which frequently co-exist in residential areas, despite being non-residential in nature; 
b	The proposed childcare centre use is compatible with both residential and non-residential uses in the immediate and surrounding context. There is also non-residential use and development present in the area;
c	The scale, siting and setbacks of the proposed childcare centres building and associated car park are appropriate having regard to the existing and preferred neighbourhood character;
d	The proposed landscape response is appropriate having regard to the established landscape character. The site does not contain any significant trees, and 18 new canopy trees in addition to understorey planting will be provided; 
e	There will be no external amenity impacts by way of visual bulk, loss of daylight, overshadowing or noise; and
f	There will be no issues arising from car parking, traffic, loading or waste collection.  
4	The applicant relies upon evidence from experts from traffic engineering, acoustic engineering, and landscape design.
5	There are also three statements of grounds lodged from non-parties to the proceeding. 
6	At the commencement of the hearing, the applicant sought to amend plans in accordance with PNPE9 of the Tribunal’s procedures. As there was no objection, I have ordered the permit application to be amended by substituting the permit application plans with those circulated and filed with the Tribunal. These plans will form the basis of my decision.
7	The council has updated their statement of grounds following the circulation of amended plans.  These are attached at Appendix A.
8	Having considered the submissions and evidence presented, in the context of the relevant policies and provisions of the scheme, I have determined to set aside council’s decision so that a permit will issue. My reasons follow.
What are the Key issues?
9	The relevant purpose of the General Residential Zone (Schedule 1) (‘GRZ1’) of the scheme is:
To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations.
10	A planning permit is required of the use and development of a child care centre.
11	The relevant decision guidelines under clause 32.08-14 of the scheme are:
Non-residential use and development
Whether the use or development is compatible with residential use.
Whether the use generally serves local community needs.
The scale and intensity of the use and development.
The design, height, setback and appearance of the proposed buildings and works.
The proposed landscaping.
The provision of car and bicycle parking and associated accessways.
Any proposed loading and refuse collection facilities.
The safety, efficiency and amenity effects of traffic to be generated by the proposal.
12	For non-residential uses in a residential zone, clause 13.01-7 is particularly relevant.  
13	The objective of this clause is:
To facilitate non-residential uses that cater for the needs of the local community, while minimising any detrimental impacts on residential amenity.
14	Other strategic policy is contained within the Planning Policy Framework and will be referred to in this decision, as relevant.   
15	Having considered all the submissions, evidence and inspected the subject site and its locality, I find that the key issues in this proceeding are:
a	Is the proposed use of a child care centre appropriate to this location?
b	Does the proposal result in an acceptable built form response? 
c	Is the proposed vegetation removal appropriate and will adequate new landscaping be provided? 
d	Are the traffic and car parking arrangements acceptable? 
e	Will the proposal result in unreasonable noise impacts? 
16	In arriving at my decision I have exercised integrated decision-making as required by clause 71.02-3 of the scheme, which states:
The Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making. Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.
Is the proposed use of a child care centre appropriate to this location?
17	Council submits that the location of the child care centre is not appropriate as:
a	It does not meet the locational attributes of clause 13.07-1L;
b	The site does not adjoin, or have access to a road in a Transport Zone;
c	The site does not abut non-residential land uses and may result in a concentration of non-residential uses given the proximity of the site to a place of worship;
d	The site is not on the periphery of a commercial or industrial zone.
18	All parties agree that it’s classification as a section 2 use does not imply that a permit should or will be granted.  The council submits that the locational attribute is a threshold issue.
19	Sites within Mount Pleasant that meet the locational attributes of clause 13.07-1L are restricted given the limited roads in a Transport Zone, no commercial zoning and limited industrial zone.  
20	Cobden Street is a collector road with a bus route.  It is a higher access road than that of the local street network.  I acknowledge that policy directs non-residential uses to the Transport Zone and that Cobden Street as a collector road does not meet that requirement, however I am persuaded that the site’s abuttal to a collector road with a bus route is also an appropriate location for important community facilities such as a child care centre.  
21	While the site is not located on the periphery of a commercial or industrial zone as directed by policy, I find that the scattering of other non-residential uses within the area including Mount Pleasant Primary School, the place of worship facing Peady Street, and the Ballarat Observatory indicates that the area is predominantly residential, not exclusively.  
22	Concurrently, I find that the establishment of a child care centre near an existing place of worship can not be regarded as a cluster or concentration of inappropriate land uses within the residential area.  
23	The policy also encourages decision makers to consider the need for the non-residential use.  
24	On the question of ‘need’, the applicant relies upon previous Tribunal determinations including SP Corporation Pty Ltd v Ballarat,  Dymachild Pty Ltd v Maroondah CC, Darebin Road Property Holdings Pty Ltd v Darebin CC and Hume Childcare Pty Ltd v Maroondah CC.  It follows that the child care centres will legitimately serve a local community need notwithstanding the location is within a residential area and even if a demand assessment for the child care centre has not been presented.    
25	Of course, one very important aspect with assessing appropriate location is whether any unacceptable amenity impacts arise from the use or development. This assessment follows.
Does the proposal result in an acceptable built form response? 
26	Council submits that the existing dwelling should not be demolished as the building makes an important contribution to streetscape and character values and clause 13.07-1L of the scheme encourages the retention of existing dwellings and their facades to preserve the residential character.
27	Whilst the re-use of a dwelling for a discretionary use may weigh in favour of a proposal, in this instance there are no planning controls that require the existing dwelling structure to be retained.  I find that it is ultimately a matter for how the new building will present and integrate into the streetscape. 
28	To this end, council submits that the building design is not residential in appearance, displays an institutional form and will have an unacceptable impact on neighbourhood character.  
29	In relation to the desired integration into the streetscape, I agree with council’s submission:
Minimising detrimental impacts on residential amenity/character is a fundamental objective of Clause 13.07-1L.
30	Council submits that the excess size of the building, the sunken presentation of the building, the commercial appearance of the building, the reliance upon retaining walls, the flat roof with subtle skillion above the entry, the lack of front garden and the style of fences will be foreign elements in the streetscape.
Siting 
31	I find that the length and presentation of the building to Peady Street is appropriate.  I agree with the submissions of the applicant, that the new building size and mass will be the equivalent of the existing dwelling and outbuilding located on the site, albeit in a different arrangement.  It’s siting in the street will not be dissimilar to the building on the opposite side of Peady Street, which faces Peady Street rather than Cobden Street.
32	Clause 15.01-5L of the scheme includes a strategy to maintain the rhythm of spacing between buildings.  I find that the setbacks of the building 3-5 metres from boundaries suitably respects the prevailing detached character of the immediate neighbourhood.  
33	Whilst a green spine could be recognised at the rear interface of dwellings facing Cobden Street and Trethowan Street, the existing outbuilding on the site reduces visibility of the green spine from the street.  Furthermore, the school at the north-western corner of this neighbourhood block terminates the green spine.  
34	Overall, I find adequate opportunity for landscaping to be provided around the building and car park to soften the building’s impact on the streetscapes and be respectful to the neighbourhood.  A more detailed assessment of the proposed landscaping will be provided below. 
Excavation
35	The sunken nature of the building reduces its appearance within Peady Street and Cobden Street.  This responds to clause 15.01-5L of the scheme which seeks buildings not to dominate the streetscape.
36	Notwithstanding the building’s sunken presence, I am persuaded that the building will have sufficient presentation in the streetscapes despite part of the building being partially concealed by retaining walls.  The maximum height of the retaining walls will be 1.29 metres in the south-east corner, however all street facing elevations will include windows/doors with floor levels near natural ground level to facilitate observation and surveillance opportunities.  
Garden Setting
37	Council is also critical of the reliance upon retaining walls within the street setbacks of Peady Street and Cobden Street.  The maximum excavation will be located in the south-east corner of the site and the entire front garden, save 0.50 metres along the Cobden Street frontage, will be at a lower level than the road reserve.
38	With respect to the ‘void’ created due to the lowering of the surface level of the southern and eastern external play areas, I find this will not be visually disruptive in the street given that it is a modest height (maximum 1.29 metres) at the worse case scenario, five canopy trees with a height of maturity between 6-12 metres will be planted that will be visible from footpath level, and low and transparent fences will flank the excavated areas.  
39	With respect to the appearance of the retaining walls, the walls will be substantially screened by landscaping.  I find that it is not necessary to treat the retaining walls with a particular material in this instance as the walls themselves will generally not be visible from outside the site.  I may have formed a different view about retaining walls if they appeared above natural ground level as they may have had a presence in the streetscape.  
Interface with dwellings
40	Whilst the site has three street frontages, the south-western boundary interfaces with two dwellings, one facing Cobden Street and the other facing Trethowan Street.  
41	The north-west corner of the building will be elevated above natural ground level.  A maximum building height of 4.69 metres with a minimum setback of 3.0 metres will provide an appropriate response to adjoining secluded private open spaces.  
42	I find that a boundary fence and any retaining wall greater than 2.0 metres in height is not in keeping with the context and may result in unacceptable amenity impacts to the adjoining property.  I accept the alternative design put to me by the applicant during the hearing that will locate an acoustic panel on the verandah of the building, rather than potentially excessive boundary fences.  
Materials and roof form
43	I am not convinced that the use of render assists in the integration of the building within the streetscapes.  Whilst render is a common domestic material, my site inspection reveals that there is no buildings nearby with substantial render finishes visible from the street.  
44	I acknowledge previous Tribunal decision, such as D B Empire v Banyule CC, that establishes that child care centres need not appear as single detached dwellings in the streetscape, but rather, should produce an outcome that will integrate, and not contrast, with the existing residential character of the neighbourhood.
45	I find the extensive use of render on elevations facing the streetscapes, together with the flat roof, will create contrast with the demure and non-assuming buildings within the streetscape.  I have imposed a condition that requires the smooth render finish to be changed to weatherboard, shiplap or cement sheet product with vertical or horizontal grooves not more than 200mm wide that provides design detailing that is more complimentary to existing building stock in the locality, of which weatherboard is one of the dominant materials.  
46	While the roof will remain substantially without a visible pitch, I find that the change in the wall material will be sufficient to create the integration that planning policy seeks, especially in relation to clause 15.01-5L of the scheme that has a strategy to design buildings or extensions to not dominate the streetscape.
Fences
47	Whilst there are a variety of fences in the locality, the prevailing front fence treatment is either no front fence or low front fence.  To this end, the proposed 1.2 metre transparent tubular fence shown on the plans is appropriate and the materials will allow appropriate level of transparency.  
48	It is apparent that there was some inconsistent details with respect to the fence detail between external play space and car park, including the retaining wall.  A further section was prepared during the hearing that shows a 1.5 metre tubular fence above a retaining wall with a varied height, but generally 0.5 metres in height.  Ultimately, nothing turns on the height and presentation of the fence height given it is internal to the site.  A condition will be imposed to correct inconsistencies.  
Is the proposed vegetation removal appropriate and will adequate new landscaping be provided? 
49	There are no planning controls that seek to protect vegetation on the site however clause 13.07-1L of the scheme seeks to retain existing mature trees.  
50	Putting aside the aspiration of policy to retain mature trees, I did not receive any submissions that ascertains that the existing vegetation on the site holds any particular qualities that would encourage the retention of the trees.  The relevant team of the council did not have any objection to the removal of any vegetation on the site.  Furthermore, it was the evidence of Mr Spaull that none of the existing trees within the site are of significance.
51	I accept that integration of a new building into a streetscape may be assisted by the retention of vegetation.  However, from my site inspection and submissions received and Mr Spaull’s evidence, I have not been convinced that the onsite vegetation is worthy of retention, nor justify the redesign of the proposal to keep more vegetation or keep specific trees on the basis that appropriate new landscaping can be incorporated into the proposal.
52	Clause 13.07-1L of the scheme seeks:
Provide landscaping along all front, side and rear boundaries (driveway not included) to protect the amenity of adjoining properties.
53	The proposal provides a landscaping plan showing 18 canopy trees as well as supplementary planting.  I am satisfied that the proposal will improve its contribution to landscaping within the streetscape.  
54	Whilst it may have been preferrable to provide hedge, shrubs or trees along the eastern side of the car park at the interface with 10 Trethowan Street, there is insufficient room to accommodate extra landscaping without modifying the car park layout, or reducing garden beds to the north and east of the car park.  The climbers will be acceptable to soften the acoustic fence in this location and provide separation between the dwelling at 10 Trethowan Street and the car park.  
55	Based on the evidence of Mr Wollard, I have required any landscaping that is in the location of the swept paths of vehicles to be plants no higher than 120mm above the finished surface level of accessway on the northern side of the car park. 
Are the traffic and car parking arrangements acceptable? 
Car Parking Quantum
56	In accordance with the findings of the Tribunal in Brunswick Investment Project Pty Ltd v Moreland CC, and more recently in Kiyagan v Baw Baw SC, the Tribunal must only consider the policies at state and local level that are relevant to the exercise of the discretion it has to determine.
57	The provision of 18 car parking spaces meets the statutory requirement under clause 52.06-5 of the scheme. As such, the quantum of car parking spaces provided for the use does not form part of the application to be determined by the Tribunal.
Car Parking Convenience
58	Council submits that the location of car parking will not be convenient for the child care attendees and will encourage parents to park within Peady Street.  
59	The proposal includes a 15 metre ramp that links the car park with the entry of the child care centre building.  Even if parents do not find the proposed 15 metre ramp convenient, the site has a 73.81 metre frontage to Peady Street which can accommodate any on-street parking without inconvenience or amenity impact to nearby residents.  
60	Mr Wollard confirms that the layout of the car park is appropriate to the relevant standards so it is not the case that the physical attributes of the car park may encourage parents to park elsewhere.
61	In the instance that the car park is full, it is the evidence of Mr Wollard that the intersection of the car park (ie the location where the car park accessway changes direction) can accommodate turning for a B99 vehicle.  This eliminates the need for vehicles to be reversing back onto the road network.  I also adopt the evidence of Mr Wollard with respect to the location of staff car parking in those spaces less visible from the crossover.  
62	I find that the car parking layout is satisfactory.  
Traffic Movement
63	I inspected the site during the morning peak period and agree with the evidence of Mr Wollard that the level of traffic generated by the proposal can be accommodated without any adverse impacts to the operation of the local road network.   
Footpath
64	The road reserve of Peady Street adjacent to the site currently does not contain a footpath for convenient pedestrian access to the child care centre.  I agree that it is appropriate for a condition to be imposed on the permit that improves the pedestrian access to the child care centre.  
65	The council seeks the footpath to be constructed along Peady Street and Trethowan Street whereas it is the evidence of Mr Wollard that the footpath ought to be located along Peady Street with a pram crossing on the corner of Peady Street and Trethowan Street to link the new footpath with the Peady Street Reserve.
66	Using the established principles of development contributions from Eddie Barron Constructions Pty Ltd v Shire of Pakenham including need, nexus, equity or accountability, I am not persuaded that there is sufficient reason to require the footpath to be extended from Peady Street to Trethowan Street.  I say this particularly given that Trethowan Street does not currently have a footpath that would connect to the new footpath and the requisite number of car parking spaces are provided on the land.   
Loading and waste
67	It was the evidence of Mr Wollard that:
Loading for the proposed use is expected to be minimal and relate to food deliveries, etc. which can occur by small trucks or vans. These vehicles would be able to use the on-site carpark for deliveries outside of peak drop-off/pick-up activities. During peak pick-up and drop-off times, on street car parking along Peady Street can be used for minor loading purposes. 
I am satisfied that a formal on-site loading bay is not necessary, and that the infrequent loading activities by small trucks and vans can be accommodated appropriately.
68	I accept Mr Wollard’s evidence that from a traffic perspective it is beneficial to avoid conflict between delivery vehicles and the pick up or drop off of children.  However, I am not persuaded that deliveries for a non-residential use from the street, even limited to a couple of hours per day, is appropriate in this residential context.  
69	I have imposed a condition that prevents deliveries from vehicles less than 6.4 metres in length on the street as Mr Wollard has provided turning circle analysis to demonstrate that vehicles less than 6.4 metres in length can be accommodated within the car park.      
70	I have conditioned no deliveries or waste collection should occur between the peak times 4:30pm to 5:30pm on the basis of Mr Wollard’s evidence.  In relation to the morning peak identified by Mr Wollard as being 8:15am to 9:15am, I have not imposed any additional restrictions to waste collection of deliveries in the morning on the basis that the same condition does not allow deliveries before 9.00am.  I am not persuaded that it is necessary to restrict deliveries or waste collection during the 15 minute overlap of the peak traffic times and allowable delivery and waste collection times. 
Will the proposal result in any unreasonable noise impacts? 
71	In addition to clause 13.07-1L of the scheme which is the local policy for non-residential uses in residential zones, clauses 13.05 and 13.07-1S of the scheme are also relevant for the assessment of adverse amenity impacts.
72	Clause 13.05 of the scheme relates to noise management.  This clause has the following objective:
To assist the management of noise effects on sensitive land uses.
73	Clause 13.07-1S of the scheme relates to land compatibility.  The objective to this clause is:
To protect community amenity, human health and safety while facilitating appropriate commercial, industrial, infrastructure or other uses with potential adverse off-site impacts.
74	The reasonable expectation of residential amenity is a matter that appears in many decisions of the Tribunal. 
75	Council submits that the location of playground/external play adjacent to sensitive interface will result in a high concentration of children in these areas.  It says that the noise impacts will be unacceptable on the basis that the existing background noise in area is low, that external play is a key activity for a child care centre and noise emanating from the external play space is difficult to contain.   
76	The applicant relies upon the acoustic evidence of Mr Lloyd who states:
I consider that noise impacts associated with the proposed childcare centre would be minimised and acceptable within the context of the area.
77	This finding is on the basis of:
a	The outdoor play area is enclosed by acoustic fencing having a surface density not less than 12kg/m2:
i	to a height of 2.0 metres along the boundary of the outdoor play area that is adjacent to 421 Cobden Street and 10 Trethowan Street; and
ii	to a height of 1.2 metres along the Peady Street frontage.
b	The car park is enclosed by an acoustic fencing having a surface density not less than 12kg/m2 to a height of 1.8 metres along the boundary of the car park that is adjacent to 10 Trethowan Street. 
c	Any plant and machinery is treated using noise mitigation techniques, such as acoustic screening, or by sufficiently separating the plant from the nearest residential sensitive interfaces.
78	Mr Lloyd has based his assessment of the noise generated by the outdoor play space upon Association of Australasian Acoustical Consultants Guideline for Child Care Centre Acoustic Assessment, Version 3.0 dated September 2020 (‘AAAC Guidelines’).  
79	As stated in Xanthopoulos v Boroondara CC at paragraph 68:
... However, I am also aware that the Tribunal has been cautious in the weight given to the AAAC Guidelines because they do not form part of, or are referred to, in the planning scheme or do not have any relevant legislative or regulatory basis or standing. They are a set of guidelines developed by an association of acoustical consultants. …
80	It would provide more certainty in town planning approvals if specific noise guidelines for child care centres were incorporated into planning policy.  However, I must apply the scheme as it exists.  To this end, the AAAC Guideline may be a useful guide to judge the acoustic impact of the proposal. 
81	External play areas are a fundamental part of the child care centre and a potential source of noise or disturbance in a residential context.  I accept that the site’s location near a primary school does result in ‘children playing’ noise in the area however unlike a child care centre, the noise from a school will likely be less when classes are occurring.  
82	Whilst I acknowledge that the existing background measurement is relatively low and I accept that there may be other periods of the weekday that the background measurement may be even lower, I am also mindful that the acoustic modelling undertaken by Mr Lloyd has a conservative approach that all 84 children playing outside contemporaneously may not be achieveable all of the time. 
83	Mr Lloyd’s evidence is that the outdoor play area could operate between 7.00am to 6.00pm whilst still observing the AAAC Guidelines.  I am mindful that this timeframe will be 11 hours, 5 days per week.  In this residential context with a relatively low background noise, I am not persuaded that the long hours combined with an early start at 7.00am for children playing is appropriate.  
84	My site inspection revealed a quiet and peaceful neighbourhoood, even during the school morning peak, and therefore I will impose a condition restricting the external play area to 8.00am to 6.00pm.     
85	In determining an acceptable noise impact from the child care centre, I place significant weight on the landscaping plan prepared for the proposal which shows the main external play space as having designated areas for play equipment that is surrounded by garden beds and planting.  The designated areas for play equipment will be setback from the secluded private open spaces of the two adjoining properties to the east and the distribution of children away from the interface with the sensitive residential properties is appropriate.  
86	I also accept Mr Lloyd’s suggestion for a noise management plan that outlines further procedures to mitigate, discourage and rectify potential excessive noise impacts.
87	In relation to plant and machinery, clause 62.02 of the scheme specifies ‘services normal to a building’ do not require a permit.  Any noise generated will be required to comply with Environment Protection Authority of Victoria Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues Publication 1826.4.            
ARE THERE ANY OTHER ISSUES?
Shadow to the child care centre
88	I am not persuaded that the proposed shadow will result in unacceptable shadow to the external play space.  Even with the absence of any specific guidance about acceptable solar access to external play spaces for child care centres, I find that the proposed external play space will receive adequate solar access and shade given the location of main area of external play area having a northern orientation.  
Security fencing to car park
89	Council seeks the construction of fencing and gates around the car park.  The fence would provide site security overnight, but also to contain children.  
90	It was the evidence of Mr Wollard that the fence was not necessary from a traffic and pedestrian perspective.  
91	Whilst I appreciate that an open car park may allow uninvited guests to access the site, the on-going security of the site is a matter for the operator of the site.  I do not see a planning reason to necessitate a fence and gate to be located around the car park. If any security issues arise for the future child care centre operators further options by them may need to be pursued.  
92	I have imposed conditions that requires the car park and paths to have external lighting that is located and baffled to prevent any unreasonable amenity impact.
What conditions are appropriate?
93	The parties made thorough submissions of the responsible authority’s without prejudice draft permit conditions. I have referred to some of the main conditions in these reasons. The conditions that I find appropriate are set out in Appendix B to this order.

Conclusion
94	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Cassandra Rea
Member			

APPENDIX A – RESPONSIBLE AUTHORITY STATEMENT OF GROUNDS
1	The scale of the proposed land use is excessive for the residential setting and fails to respond to the purpose of the General Residential Zone at clause 32.08 and planning policy at clauses 13.07-1S (Land use compatibility) and 13.07-1L (Non-residential uses in residential zones). 
2	The proposed buildings and works (including the proposed extent of cut and fill across the site) are a poor urban design outcome, fail to respond to clauses 15.01-1S and 15.01-1L (Urban Design) of the Ballarat Planning Scheme and will result in:
a	Poor internal amenity (views and overshadowing) and safety of children because of the heights of retaining walls and fencing.
b	Limited opportunity for passive surveillance and outlook to and from the childcare centre. 
c	Limited sense of address/connection between the abutting streets and the building. 
d	Architectural details that fail to respond to the established neighbourhood character. 
e	Anomalies/discrepancies in relation to fencing across the plans.
f	Insufficient landscaping width to provide visual screening along the northwest and southwest boundaries of the car park
g	Insufficient detail on the plans in relation to:
i	External finishes and colours and any visual and acoustic screening of the store and waste area.
ii	Waste and store not annotated on southeast elevation (Peady Street).
iii	Location and elevations of HVAC and any other plant and any acoustic/visual screening of this plant.

Appendix B – Permit DESCRIPTION AND Conditions
Permit No	PLP/2023/272	
planning scheme	Ballarat Planning Scheme	
responsible authority	Ballarat City Council	
address of the land	423 Cobden Street
MOUNT PLEASANT VIC 3350	
the permit allows:
Planning scheme clause	Matter for which the permit has been granted	

Clause 32.08-2	Use of a child care centre	
Clause 32.08-10	Construct a building, or construct or carry out works associated with a child care centre	
Conditions to apply to the permit:
Amended Plans Required
1	Before the use and 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 form part of the permit. The plans must be drawn to scale with dimensions and emailed to planninginfo@ballarat.vic.gov.au with the planning reference number. The plans must be generally in accordance with the plans prepared by Petridis Architects, dated 2 April 2025 and the landscape plan prepared by John Patrick Landscape Architects Pty Ltd dated April 2025 but modified to show:
(a)		The render wall cladding replaced with weatherboard, timber shiplap or cement sheet with vertical or horizontal grooves no more than 200mm apart.
(b)	Elevations of the store and waste areas to include a material and colours schedule.
(c)	The location of the footpath along the Peady Street frontage with a pram crossing on the corner of Peady Street and Trethowan Street as required by Condition 40.
(d)		The marked centre line at the corner of Peady Street and Trethowan Street accurately annotated on all relevant plans.
(e)		Location of HVAC and any other plant and associated visual and acoustic screening in accordance with the Acoustic report required by Condition 23.
(f)	A dimensioned fencing plan to include but not be limited to the following:
i	The location of all fencing and retaining walls.
ii	Acoustic fencing as required by Condition 24. The acoustic fencing to include: 
(1)	A 2 metre high acoustic fence (inclusive of any retaining walls) alongside the north west boundary adjacent the building and outdoor play area  
(2)	A 1.5 metre high acrylic acoustic barrier along the north west edge of the deck, adjacent child care room 3 (extending to the corner of the deck).  
iii		Elevations of all fencing and retaining walls, including an annotation for the Modular Walls to have a surface density of at least 12 kg/m2.
iv		Fencing annotations consistent between both the elevation and site plans, particularly in relation to the specification of the location of the Modular Walls on TPA02.
v	Provision of a 1.5 metre visually transparent fence on the north side of the external play space, sitting above a retaining wall. 
vi		Fencing to the south of the entry verandah.
(g)		Landscape Plans as required by Conditions 8.
(h)		Height of fill.
(i)		Car parking spaces 9 to 15 annotated as staff car parking. 
(j)		Cross sections (southwest to northeast) at the following intervals (approximate) measured from Cobden Street boundary:
i		17.5 metres (within the building)
ii		30.0 metres (entry of building)
iii	37.0 metres (rear of building)
iv		44.0 metres (approximate centre of outdoor space)
v		52.0 metres (rear of outdoor space/car park area)
vi		57.0 and 63.0 metres (rear of waste area and either side of driveway) 
vii		68.0 metres (within the carpark)
All to the satisfaction of the Responsible Authority.
No Changes
2	The use and development hereby approved as shown on the endorsed plans and/or described in endorsed documents shall not be altered or modified without the prior written consent of the Responsible Authority unless the alteration(s) and/or modification(s) comply with an exemption contained in the Ballarat Planning Scheme.
Number of Children 
3	Unless with the prior written consent of the Responsible Authority, the maximum number of children on the premises at any one time is eighty-four (84).
Hours of Operation
4	Without the further written consent of the Responsible Authority, the use must only operate during the following times:
(a)		The childcare centre: Monday to Friday; 6.30am to 6.30pm.
(b)		The outdoor play areas between 8.00am to 6.00pm.  
Deliveries
5	Deliveries to and from the site (including waste collection) must not occur between 4:30pm-5:30pm Monday to Friday and must only take place between:
(a)		9:00am and 8:00pm Monday to Saturday
(b)		10:00am and 7:00pm Sunday and Public Holidays
6	All ancillary motors or trucks must be turned off whilst picking up or dropping off stock/materials/waste.
7	Unless with the prior written consent of the Responsible Authority, all deliveries arriving in vehicles with a length less than 6.4 metres must use a designated space within the onsite car park for loading and unloading.
Landscape Plan 
8	Prior to the commencement of any works , a landscape plan generally in accordance with the plan prepared by John Patrick Landscape architects must be submitted to and approved by the Responsible Authority. When approved the plan will form part of the permit. The landscape plan to include both the childcare centre and the associated carpark and to show:
(a)	A layout consistent with the architectural drawings prepared by Petridis Architects, dated 2 April 2025 and any changes required by Condition 1.
(b)	Any landscaping that is in the location of the swept paths of vehicles to be plants no higher than 120mm from the finished surface level of accessway on the northern side of the car park. 
(c)	The location of all trees along the boundary of the adjoining lots.
(c)	Details of surface finishes of pathways and driveways;
(d)	A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, size at planting, sizes at maturity, and quantities of each plant.
9	All landscaping works must be carried out in accordance with the approved landscape plan and Council’s Landscape Design Manual (August 2012).
Completion and Maintenance of Landscaping Works
10	Prior to the occupation of the development hereby approved all landscape works forming part of the approved Landscape Plan must be completed to the satisfaction of the Responsible Authority. The landscaping shown on the approved landscape plan must be maintained to the satisfaction of the Responsible Authority for 18 months from the practical completion of the landscaping. During this period, any dead, diseased or damaged plants or landscaped areas are to be repaired or replaced during the period of maintenance and must not be deferred until the completion of the maintenance period.
Tree Protection During Construction
11	Prior to the commencement of any works (including earthworks) on site and within the road reserves adjacent to the site:
(a)		Provide a Tree Protection Management Plan (TPMP), to be developed by a suitably qualified minimum AQF Level 5 arborist, to ensure successful retention of street tree/s and trees on adjoining properties. 
Sustainable Design
12	Prior to the commencement of the development hereby approved, the applicant must submit to and have approved in writing by the Responsible Authority, a Sustainable Design Assessment (SDA) signed by a suitably qualified technical professional confirming the development satisfactorily addresses the intent of Clause 15.01-2S (Building design) of the Ballarat Planning Scheme and the relevant related requirements set out in the City of Ballarat’s Environmentally Sustainable Design Policy adopted by Council on 22 March 2023.
Once endorsed this SDA will then form part of the permit and the development must be constructed in accordance with it unless otherwise agreed in writing by the Responsible Authority.

Contamination
Environmental Assessment
13	Before the construction or carrying out of buildings and works, the owner(s) must provide an environmental audit statement under Part 8.3 of the Environment Protection Act 2017 (Vic) stating that the land is suitable for the use or, if this permit authorises the construction or carrying out of buildings or works, is suitable for the use for which the buildings or works are constructed or carried out.
Environmental Audit Requirements
14	Where an environmental audit statement is issued for the land, and any recommendation of that environmental audit statement requires any maintenance and/or monitoring of an ongoing nature, the Responsible Authority will require the Owner(s) to enter into an Agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 (Vic) that provides for the undertaking of the ongoing maintenance and/or monitoring as required by the environmental audit statement.
15	Where a Section 173 Agreement is required, the Agreement must be executed prior to the commencement of the permitted use, the issue of an Occupancy Permit under the Building Act 1993 (Vic) or the issue of a Statement of Compliance under the Subdivision Act 1988 (Vic) (whichever occurs first). All expenses involved in the drafting, negotiating, lodging, registering and execution of the Agreement, including those incurred by the Responsible Authority, must be met by the Owner(s).
16	Prior to any remediation works (if required) being undertaken in association with the environmental audit, a ‘remediation works’ plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plan must detail all excavation works as well as any proposed structures such as retaining walls required to facilitate the remediation works. Only those works detailed in the approved remediation works plan are permitted to be carried out prior to the issue of an environmental audit statement.
17	Prior to commencement of the use or the issue of an Occupancy Permit under the Building Act 1993 (Vic) (whichever occurs first), written confirmation of compliance with all the recommendations of the environmental audit statement must be provided by an environmental auditor appointed under the Environment Protection Act 2017 (Vic), including confirming that any requirements in the environmental audit statement recommendations regarding verification of works have been complied with. All the recommendations of the environmental audit statement must be complied with to the satisfaction of the Responsible Authority.
Parking and Traffic 
18	Car parking spaces 9 to 15 (inclusive) must be available for the use by staff for car parking. 
Construction Management Plan
19	Prior to the commencement of the buildings and works hereby approved, a Construction Management Plan must be prepared to the satisfaction of the Responsible Authority and endorsed as part of this permit. The Plan must detail:
(a)		Hours of demolition and construction to accord with Local Laws;
(b)	Management of surrounding streets to ensure all are kept free of parked or standing vehicles or any other obstruction, including building materials, equipment, etc. to maintain free vehicle passage to abutting benefitting properties at all times, unless with the written consent of the Responsible Authority;
(c)		Methods to contain dust, dirt and mud within the site and the method and frequency of clean up procedures, including the management of on-site waste storage construction bins and vehicle washing.  If dust is created by construction and/or demolition works, appropriate measures must be immediately taken to suppress dust movement off site;
(d)		Management of parking of construction machinery and workers vehicles to prevent adverse impacts to nearby properties;
(e)		Management of heavy vehicles, site deliveries and unloading and lifting points and expected frequencies and traffic management in the vicinity of the site to ensure routes to and from the land minimise disruption to nearby residential properties;
(f)		The measures to minimise disruption to pedestrian movements along adjacent footpaths;
(g)		Measures to minimise noise and other amenity impacts from mechanical equipment, including idling trucks and construction activities, especially outside of daytime hours where this is permitted.  Construction and/or demolition works must comply with the requirements specified in the Environment Protection Authorities, Noise Control Guidelines Publication 1254.
(h)		The provision of adequate environmental awareness training for all on-site contractors and sub-contractors; and
(i)		A liaison officer for contact by the public and the Responsible Authority in the event of relevant queries or problems experienced.
(j)		Prior to the commencement of any works on site, a Waste Disposal and Management Plan shall be submitted to the Responsible Authority for approval. The plan must detail: 
i	Where all building rubble and materials including soil is to be removed to off site. Note all materials must be taken to approved waste receiving sites or recycling centres. The site soil may be contaminated and should be disposed to an authorised facility in accordance with EPA regulations.
ii	Provision for materials recycling and collection during site construction.
iii	All necessary approvals shall be gained prior to materials being handled and disposed of in accordance with the Disposal Plan to the satisfaction of the Responsible Authority.
All works on the land must be undertaken in accordance with the endorsed Construction Management Plan to the satisfaction of the Responsible Authority.
Operational Management Plan
20	Prior to the commencement of the use, an operational management plan must be submitted to and approved by the Responsible Authority. When approved the plan will form part of the permit, with an endorsed copy available for viewing at the childcare centre. Operational management on and adjacent to the site must conform to the approved plan. The plan must include but is not limited to:
(a)		Objectives / purpose.
(b)		Management Plan
(c)		Hours of operation including:
i	staff arrivals and departures
ii	family and children arrivals and departures
(d)		Capacity of the centre
(e)		Staffing
(f)		Car parking
(g)		Managing traffic and parking, including measures to discourage patron car parking in the adjoining streets and preclude staff parking in designated patron car parking areas.
(h)		Deliveries 
(i)		Noise management
(j)		Safety and security
(k)		Emergency procedures
(l)		Waste management
(m)		Centre maintenance
(n)		Complaint management
(o)		Collection of rubbish from road reserves and car park area in the vicinity of the premise and external areas used by children and carers of the centre.
All to the satisfaction of the Responsible Authority.
Waste Management 
21	An updated Waste Management Plan generally in accordance with the Waste Management Plan prepared by Energy Efficient Choices, dated August 2023 to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. 
The waste management must be undertaken in accordance with the endorsed Waste Management Plan to the satisfaction of the Responsible Authority.
22	External waste storage areas must be restricted to the storage bin area shown on the approved plan.  Storage bins must be screened from view of the street and adequately covered to the satisfaction of the Responsible Authority to minimise dispersal of material by wind or water and vermin and pest insect access.  Appropriate controls must be implemented to restrict the movement of windblown litter and prevent the site appearing unsightly.  No litter must be discharged beyond the boundaries of the site.  All storage areas must be surfaced and capable of being washed down with wastewater being directed to sewer via an appropriate litter trap.  No odour must be emitted from any waste storage areas to cause offence to adjoining property occupiers to the satisfaction of the Responsible Authority.
Noise Management Plan
23	Prior to the commencement of the buildings and works hereby approved, a Noise Management Plan must be prepared to the satisfaction of the Responsible Authority and endorsed as part of this permit. The Plan must detail the noise control strategies at Clause 4. of the approved Acoustic Impact Assessment, prepared by Octave Acoustics, dated 12 May 2025
Acoustic Fencing
24	Before the commencement of the use or occupation of the buildings hereby approved, the acoustic fencing must be erected along the boundaries consistent with the recommendations within the approved Acoustic Impact Assessment, prepared by Octave Acoustics.  The details of the design and acoustic qualities of the fence must be in accordance with the requirements of this report and to the satisfaction of the Responsible Authority.
Acoustic Report
25	Prior to the commencement of the development the Acoustic Impact Assessment, prepared by Octave Acoustics, dated 12 May 2025 (or later) must be endorsed as part of this permit
26	Should the Responsible Authority deem it necessary on the basis of a reasonable noise complaint, the Responsible Authority may request an acoustic report to be provided that demonstrates the proposal complies with the endorsed acoustic report or which outlines any measures considered necessary to achieve compliance to the satisfaction of the Responsible Authority.
Vehicle Access 
27	Prior to the commencement of the use and development, vehicle access to the site off Peady Street must be constructed in accordance with plans and specifications set under an approved Vehicle Crossing Permit to the satisfaction of the Responsible Authority. 
28	Any redundant crossing is required to be removed with nature strip and kerb reinstated to Council approval.
Number of Car Spaces Required
29	No fewer than eighteen (18) car spaces must be provided on the land for the use and development, including one space clearly marked for use by disabled persons and designed in accordance with Australian Standard AS 2890.6 – 2009.
30	Car parking spaces numbered 9 to 15 (inclusive) line marked with “staff only”. 
Internal Access Ways and Car Parking
31	Prior to the commencement of the use of the development, the areas set aside for the parking of vehicles and access lanes as shown on the approved plans must to the satisfaction of the Responsible Authority be:
(a)		Constructed with asphalt or concrete;
(b)		Properly formed to such levels that they can be used in accordance with the plans;
(c)		Drained;
(d)		Line-marked to indicate each car space and all access lanes;
(e)		Clearly marked to show the direction of traffic along access lanes and driveways.
32	Car spaces and access lanes must be maintained and kept available for these purposes at all times.
33	Ingress and egress to the site for all vehicles (including waste collection vehicles) must be in a forward direction and must only be from Peady Street.
34	Prior to the commencement of the use of the development, all works shall be completed in accordance with plans submitted to and approved by the Responsible Authority. 
Provision of Kerb/Barriers
35	Concrete kerbs to a minimum height of 150mm or other barriers must be provided to the satisfaction of the Responsible Authority to prevent direct vehicle access to Peady and Trethowan Streets other than via the vehicle crossing shown on the approved plans and to prevent damage to fences or landscaped areas
Access Roads
36	Access to and egress from the site for all vehicles (including waste collection vehicles) must only be from Peady Street and in a forward direction.
Directional Sign
37	Signage to the satisfaction of the Responsible Authority must be provided directing drivers to the area(s) set aside for car parking and must be located at the entrance and maintained to the satisfaction of the Responsible Authority. The area of each sign must not exceed 0.3 square metres.
Naturestrips
38	Prior to the use commencing the nature strip fronting the development in Peady Street and Trethowan Street shall be constructed in accordance with levels and specifications submitted to and approved by the Responsible Authority.
39	The works shall include:
(a)	The reshaping of the nature strip following the new crossing in Peady Street top dressing the area with a 75 mm rolled depth of good quality loamy topsoil free of any weed or seed.
(b)	Seeding the area with an appropriate seed mix.
All works shall be completed in accordance with Council’s Landscape Design Manual to the satisfaction of the Responsible Authority prior to the use approved commencing.
Footpaths
40	Before the use commences, a footpath must be constructed along the frontage of the lot within the Peady Street frontage and include a pram crossing on the corner of Peady Street and Trethowan Street.  
41	Prior to the footpath works commencing on site, engineering plans and specification plans must be submitted to and approved by the Responsible Authority.  The plans must accord with the Infrastructure Design Manual.  All works must be constructed in accordance with the approved plans and completed to a standard satisfactory to the Responsible Authority prior to the commencement of the development/use hereby approved. 
Engineering Plans and Construction
42	Prior to the commencement of works or use hereby approved, engineering plans and specifications must be submitted to and approved by the Responsible Authority. All engineering works must be constructed in accordance with the approved plans and completed to a standard satisfactory to the Responsible Authority prior to the commencement of the development/use hereby approved.
43	At the completion of the works one set of ‘as constructed’ civil plans must be submitted to the Responsible Authority.
Drainage Plans and Construction
44	Prior to works commencing on site, drainage, stormwater detention and stormwater treatment plans and computations must be submitted to and approved by the Responsible Authority. The drainage, stormwater detention and stormwater treatment plans and computations must accord with the Infrastructure Design Manual, Council’s Site Stormwater Management Systems Policy, and Council’s WSUD guidelines. All drainage works must be constructed in accordance with the approved plans and shall be completed to a standard satisfactory to the Responsible Authority prior to the occupation of the development/use hereby approved commencing.
45	Stormwater from all roofs, gutters, downpipes, and paved areas shall be drained to a legal point of discharge to the satisfaction of the Responsible Authority. The Legal Point of Discharge [LPOD] is to the kerb/channel in Peady Street.
46	The whole of the subject land, including landscaped and paved areas, must be graded, and drained to the satisfaction of the Council as the responsible drainage authority to prevent the discharge of water from the subject land across any road or footpath or onto adjoining lands.
47	Any raingardens and rainwater tanks forming part of the approved drainage plans/system must be installed and maintained in good operational condition on an ongoing basis to the satisfaction of the Responsible Authority
48	At the completion of the works one set of ‘as constructed’ civil plans must be submitted to the Responsible Authority.
Sediment on Roadways
49	No material shall be deposited on any road external to the site by any means including construction vehicles or associated plant entering or leaving the land subject to this permit. Any material deposited on the road must be removed by mechanical or manual means to the satisfaction of the Responsible Authority.
Sediment Control Measures
50	Prior to the commencement of any works on site, a Sediment Control Plan detailing sediment control measures during construction must be submitted to the Responsible Authority for approval.   Control measures should be consistent with the EPA publication ‘18341.1 Civil construction, building and demolition guide’. When approved the Sediment Control Plan shall form part of this permit. All sediment control measures must be undertaken and remain in place until the completion of site works to the satisfaction of the Responsible Authority.
Provision of Services
51	The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity and gas (where it is proposed to be connected) services as shown on the endorsed plans in accordance with the authority’s requirements and relevant legislation at the time.
Concealment of Pipes, etc.
52	All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority. 
Lighting
53	External lighting must be designed, baffled and located to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
54	Low level security lighting must be provided to the satisfaction of the Responsible Authority’s within the carpark and pathways for both drivers and pedestrians. 
Expiry of Permit for Use and Development
55	This permit will expire if one of the following circumstances applies:
(a)		The development is not started within two years of the issue date of this permit.
(b)		The development is not completed within four years of the issue date of this permit. 
(c)		This use does not commence within two (2) years after the completion of the development.
In accordance with section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
– End of conditions –