VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P688/2021
amend Permit no. GE/PP-17371/2005/B	

CATCHWORDS	
Section 82 of the Planning & Environment Act 1987; Glen Eira Planning Scheme; 
Amend child care permit to allow additional play space – car parking & noise impacts.	

APPLICANT	Tom and Marnelle Matthews & Others	
RESPONSIBLE AUTHORITY	Glen Eira City Council	
RESPONDENT	Ofer Fridberg, Planning Horizon Australia	
SUBJECT LAND	61 Balaclava Road, St Kilda East	
HEARING TYPE	Hearing	
DATEs OF HEARING	25 November 2021 & 17 January 2022	
DATE OF ORDER	18 March 2022	
CITATION	Matthews v Glen Eira CC [2022] VCAT 289	

Order

1	The decision of the Responsible Authority is set aside.  
2	Planning Permit No. GE/PP-17371/2005/B must not be amended.

Tracy Watson
Member			

APPEARANCES
For Applicant	Tamara Orrlov, town planner.	
For Responsible Authority	Sam Zimbler, town planner.	
For Respondent	Lucy Eastoe, solicitor.  Ms Eastoe called expert evidence from:  James McKenzie, traffic engineer; and Darren Tardio, acoustic engineer.	

INFORMATION
Description of Proposal	It is proposed to amend the existing planning permit to allow the existing car parking area to be used as a play space.	
Planning Scheme	Glen Eira Planning Scheme.	
Nature of Proceeding	Application under Section 82 of the Planning and Environment Act 1987 – to review the decision to grant an amendment to existing permit no. GE/PP-17371/2005/B.  	
Zone 	Clause 32.08 – General Residential Zone, Schedule 2.
No overlays apply to the subject site.	
Permit Requirements	This is an application to amend an existing permit pursuant to section 72 of the Planning and Environment Act 1987.	
Relevant Scheme policies and provisions	Includes Clauses 18, 21.08, 21.12, 22.11, 32.08, 52.06, 65 and 71.02.	
Land Description	The subject site is located on the southern side of Balaclava Road.  The site is a rectangular shape, with a frontage of 19.20 metres and a depth of 50.29 metres, yielding a site area of 966m2.
The subject site is developed with a double storey building which is used as a child care centre.	
Tribunal Inspection	An unaccompanied site inspection was undertaken on 21 February 2022.	

REASONS
What is this proceeding about?
1	Planning Permit GE/PP-17371/2005/B issued by the Glen Eira City Council in July 2005 allows the use and development of the subject site for the purposes of a child care centre.  The existing permit is subject to a range of conditions, including Condition no. 19 which is that:
Areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:
(a)	constructed;
(b)	properly formed to such levels that they can be used in accordance with the plans;
(c)	surfaced with an all weather sealcoat;
(d)	drained;
(e)	line-marked to indicate each car space and all access lanes;
(f)	clearly marked to show the direction of traffic along the access lanes and driveways;
to the satisfaction of the Responsible Authority.
Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.
2	The Respondent applied to the Council to amend this existing permit to facilitate the use of the existing car parking area as an outdoor play space during the period in between the centre’s peak drop-off and pick-up times.  The use of this new area would be in addition to the two existing outdoor play spaces.  These existing spaces are located at ground level at the rear of the building, and at first floor level, abutting the northern side of the building.  The permit allows for these outdoor play spaces to only be used after 8:30am, and limits the number of children in the ground level space and the rooftop space to a maximum of 25 and 15 children respectively.
3	In March 2021, the Glen Eira City Council issued a Notice of Decision to Amend a Planning Permit (NOD), to modify Condition no. 19 and to add a new Condition no. 20.  
4	The proposed amendment to Condition no. 19 is to delete the last sentence of the existing condition so that it would read:
Areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:
(a)	constructed;
(b)	properly formed to such levels that they can be used in accordance with the plans;
(c)	surfaced with an all weather sealcoat;
(d)	drained;
(e)	line-marked to indicate each car space and all access lanes;
(f)	clearly marked to show the direction of traffic along the access lanes and driveways;
to the satisfaction of the Responsible Authority.
5	The proposed new Condition no. 20 is as follows (with the subsequent existing conditions re-numbered):
The car parking area shown on the endorsed plans must not be used for any other purpose other than the parking of vehicles during the following hours:
•	7:00am – 9:30am and 3:00pm – 6:00pm Monday to Friday.
6	The Respondent accepts the proposed new Condition no. 20 included in the Council’s NOD.
7	The Applicants are seeking a review of the Council’s decision by the Tribunal.  The Applicants are: Tom and Marnelle Matthews of no. 63 Balaclava Road (a residential property abutting the eastern side boundary of the subject site); and Chelsea Wilcox and Martin Keane of no. 60 Balaclava Road (a residential property located opposite the subject site on the northern side of Balaclava Road).
8	My role is to determine if the proposed permit amendments should be allowed based on whether the changes are acceptable on their planning merits, having regard to the applicable policies and provisions of the Glen Eira Planning Scheme.  In other words, it is not open to me to revisit other aspects of the existing use and development which are permitted by the existing planning permit, nor am I able to give weight to non-planning matters in my deliberations.
9	These reasons therefore focus on what I consider to be the key relevant planning issues raised by the proposed amendments to the planning permit.  
Do the proposed amendments result in an acceptable planning outcome?
Car Parking Impacts
10	The endorsed plans which form part of the existing permit approve the provision of a total of eight on-site car spaces, with four spaces allocated to staff members and four spaces allocated to parents.  Out of the four parent spaces, two spaces are allocated as ‘5 minute parking’ only.  
11	The existing planning permit allows a maximum of 60 children, and 10 staff members/ employees to be on site at any one time.  
12	When the planning permit was issued in 2005, there was no car parking rate for a child care centre at Clause 52.06 of the planning scheme, and therefore the number of on-site car spaces provided only needed to be to the satisfaction of the Responsible Authority, and did not trigger the need for specific planning permission for a reduction in the number of on-site car spaces.  In this case I need to continue to be satisfied that the provision of on-site car parking remains an acceptable planning outcome.  The 2005 situation contrasts to the current planning scheme where a new, 60-place child care centre proposing eight on-site spaces would require specific planning permission to reduce the number of on-site spaces from 13 to 8 spaces.  At the time the original planning permission was granted, the Council assessment considered that the use would generate a peak demand of 10 spaces, and as such supported the use provided that a ‘majority’ (deemed to be 8 spaces) of parking could be provided on site (refer to page 10 of the Council’s Delegated Planning Committee report dated 11 March 2005).
13	The proposed amendments do not seek to change the existing endorsed car parking layout.  However, the practical implication of the proposed amendments is to effectively reduce the number of existing on-site car spaces.  I say this because the consequence of the proposed amendments is to allow the whole of the front car parking area to be used as a play space between 9:30am and 3:00pm each day that the centre is open.  The likelihood of staff members parking on-site and then moving their car multiple times is so improbable that, in my opinion, it becomes effectively unfeasible that this will occur in reality.  For all intents and purposes the effect of the proposed amendments is to increase the area of the child care centre by including the use of the carparking space during these times as an additional play space.  
14	The practical consequence of these changes is that the number of on-site car spaces provided will be reduced by at least the four staff spaces.  I make this assumption on the basis that the time restrictions placed on accessing the on-site car spaces means that at the very least there will effectively be no on-site car parking for staff members.  Indeed, this is the assumption that Mr McKenzie has made in his evidence statement.  Additionally, any parent who attends the centre between 9:30am and 3:00pm will also need to utilise on-street parking.  This is a relevant consideration given that, unlike, for example, a primary school, the child care centre does not have set start and finish times.  In other words, children can be dropped off and picked up at any time while the child care centre is open. 
15	For these reasons, I consider that the proposed amendments result in a significant change to the availability of on-site car parking.  I therefore need to have a high level of confidence that, at the very least, the four staff spaces can be readily accommodated on-street, proximate to the centre, without unreasonably impacting on the availability of this public resource.
16	An objective of Clause 21.12 of the planning scheme is, “To ensure the adequate provision of car parking in appropriate locations to serve the needs of business and its customers”, with an associated policy of, “Requiring the provision of adequate car parking to satisfy demand generated having regard to the proximity of public transport and nearby on and off street car parking.”
17	The Respondent has relied upon Mr McKenzie’s evidence that there is sufficient on-street capacity to accommodate the parking demand of four staff spaces.  Unfortunately, because of the timing of his engagement there are some important information gaps in his evidence which have largely been detailed in the limitations section of his statement.  The consequence of this is that rather than undertaking the usual parking occupancy surveys, his analysis needed to rely upon a Nearmap Assessment.  I do not raise these issues in any way as a criticism of Mr McKenzie, as he was simply doing what he could, in circumstances outside of this control.
18	His assessment has therefore been impacted because the parking data is restricted to the exact time and date that the Nearmap aerial image has been taken (that is, overall it represents a very static picture).  This contrasts to the usual data gathering technique of occupancy surveys which is a much more dynamic method and can be appropriately tailored to the circumstances of the proceeding.  This latter method is typically used, and Nearmap images have usually only been relied upon during times when there is no other option available, for instance, during COVID-19 related ‘lockdown’ periods. 
19	With this said, I do agree with the principle used by Mr McKenzie of going back in time to the aerial images taken immediately before the COVID-19 pandemic started.  The specific dates and times documented by the Nearmap images are shown at Table 5.1 of Mr McKenzie’s evidence statement.  
20	One of the important factors impacting the parking conditions proximate to the subject site is the demand generated by the nearby primary school (Melbourne Grammar’s Grimwade House) located on the south-east corner of Balaclava Road and Orrong Road.  Of the ten dates included in Mr McKenzie’s Table 5.1, three of these (17 December 2019, 11 January 2019 and 4 April 2018) would have been Nearmap images taken during a school holiday period of Grimwade House.  Given the physical context of the subject site, I do not think that the use of these dates is particularly helpful.
21	More importantly, all of the exact times documented by the Nearmap images (being 10:50am, 11:36am, 10:36am, 10:29am, 4:28pm, 11:13am, 11:18am, 12:58am and 1:14pm) fall outside of the peak parking demand time periods generated by both the child care centre on the subject site, and the nearby primary school.  These peak times correspond to the morning drop-off and afternoon pick-up time periods.
22	In other words, the Nearmap aerial photograph parking survey results do not show what the availability of on-street parking is during the morning and afternoon peak time periods.  The morning time period is of particular relevance as this is when the child care centre staff would actually need to access the on-street spaces.  I therefore do not have the degree of confidence necessary to be satisfied that the impact of the proposed amendments on the supply of on-street parking would result in an acceptable outcome.  I also consider that the proposed amendments result in an unfair sharing of the publicly available on-street parking in this residential neighbourhood.
23	Further, I note that Mr McKenzie’s evidence statement does not include an assessment of the parking demand generated by the existing child care centre, nor does it include any details of how this existing demand compares to other like-centres.  Clause 18.02-4S of the planning scheme points to a consideration of the demand for off-street car parking when allocating land for car parking usage.
24	In this case, I consider that such a high degree of confidence regarding the supply of on-street spaces during the key time periods is necessary, particularly given that it is not commonplace for a child care centre to effectively provide no on-site staff car parking when it is located in a residential area.  The fact that this is an unusual scenario was confirmed during the course Mr McKenzie’s evidence.  In essence, I consider that it would be contrary to the orderly planning of the area to endorse a proposal which, from a practical standpoint, removes existing on-site staff car parking.  Because of the information gaps in the traffic engineering evidence, I am not persuaded that the following objectives of the planning scheme can be achieved:
•		To ensure that non-residential uses are successfully integrated into residential zones with minimum impact and minimum loss of residential amenity (Clause 21.08 of the planning scheme which applies to the expansion of non-residential uses in residential areas); and
•		To minimise the impacts of noise, overlooking, overshadowing, car parking and traffic on the surrounding neighbourhood (Clause 22.11, Child Care Centres Policy, of the planning scheme). 
25	I acknowledge the locational attributes of the child care centre in terms of its public transport accessibility (and the emphasis of the planning scheme to encourage a modal shift away from private motor vehicle use).  However, I am not prepared to endorse the proposed amendments in the absence of important information in the traffic engineering evidence.
Noise Impacts
26	The other relevant planning consideration raised by the Applicants, is the proposal’s noise impacts.  The main issue identified in this regard was the noise impact on the quiet enjoyment of the front secluded private open space area of the abutting property, as well as the adverse noise impact on the front home-office of this dwelling.
27	As I have not been persuaded to endorse the proposed amendments because of the information gaps in the traffic engineering evidence, I do not need to go into detail regarding the proposal’s noise impacts.
28	However, I do consider that the noise impacts resulting from the use of the front car parking area as a play space could be appropriately managed by conditions of the permit, such as: setting limits on the number of children within the space; restricting the types of toys/ equipment used in the space; and ensuring that the eastern side boundary fence is rated as an acoustically treated fence.  In other words, I am satisfied that the noise emissions from the proposed additional play space could be attenuated to an acceptable level.
29	Mr Tardio’s evidence has provided me with the degree of comfort necessary that this issue could be appropriately managed.  Essentially, his evidence was that a reasonable noise emission level within the front garden area (including outside the front home-office window) of no. 63 Balaclava Road would be any level up to the figure resulting from adding 10dB(A) to the measured background noise level. 
30	Mr Tardio measured the background noise level in the front car park area of the subject site as being 47dB(A), although this level was taken on a day when the child care centre was closed, and so does not represent a typical background noise level.  Based on his acoustic model, the noise emission levels in the front garden area of no. 63 Balaclava Road (assuming 20 children playing in the front car park area) would range from 59dB(A) [closest to the subject site], to 52dB(A) [furthest from the subject site].  The noise emission level near the front home-office window would be 52dB(A).  I also note that these levels only factor in the sound of children’s voices, and have also assumed that there is no acoustically rated fence along the eastern side boundary.
31	Assuming that the typical background noise (that is, when the child care centre is operational) is somewhat higher than 47dB(A), I am still confident that the noise level within no. 63 Balaclava Road could be managed to ensure that Mr Tardio’s ‘background noise plus 10dB(A)’ maximum noise level would not be exceeded.  I say this because Mr Tardio’s acoustic model conservatively assumed that there was no acoustically rated fence between the subject site and no. 63 Balaclava Road.  In other words, if necessary the noise impact from the use of the front car park area as a play space could be satisfactorily attenuated via appropriate permit conditions.
32	I therefore would not refuse the permit amendments on the basis of a noise consideration alone.
Conclusion
33	For the reasons outlined above I have concluded that the decision of the Responsible Authority will be set aside.

Tracy Watson
Member