JONES and SHIRE OF MURRAY
[2006] WASAT 140
•5 JUNE 2006
JONES and SHIRE OF MURRAY [2006] WASAT 140
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 140 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:16/2006 | 4 MAY 2006 | |
| Coram: | MR J ADDERLEY (SESSIONAL MEMBER) | 5/06/06 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application upheld in part | ||
| B | |||
| PDF Version |
| Parties: | LORETTA FAY JONES SHIRE OF MURRAY |
Catchwords: | Childcare centre Operating hours Schoolage children Residential amenity Noise nuisance Traffic Landscape buffer |
Legislation: | Environmental Protection Act 1986 (WA) Environmental Protection (Noise) Regulations 1997(WA), Reg 7, Reg 7.1, Reg 8, Table 4.2 Planning and Development Act 2005(WA), s 242 Shire of Murray District Town Planning Scheme No 4 |
Case References: | Nil Nil |
Orders | On the application heard before Sessional Member John Adderley on 4 May 2006, it is ordered that:,1. The application for review of the decision of the Shire of Murray to refuse to grant planning consent for the extension of operating hours and to allow accommodation of school-age children at the childcare centre situated at Lot 101 Lloyd Avenue, Ravenswood is upheld in part.,2. The application for the extension of operating hours and to allow accommodation of school-age children at the childcare centre situated at Lot 101 Lloyd Avenue, Ravenswood is approved subject to compliance with the following conditions:,(i) Operation of the 38-place childcare centre shall be limited to the hours of 6.30 am until 6.30 pm from Monday to Friday.,(ii) The maximum age of children permitted to be placed and accommodated at the childcare centre shall be twelve years old.,(iii) The internal side and rear perimeter boundaries of the childcare centre premises shall be landscaped and permanently maintained with a 2.0 metre width dense planting of shrubs, bushes and trees in order to effect a supplementary acoustic barrier to playground noise and to restrict the possibility of physical contact with the perimeter fence in the course of children's play.,3. Each party to this review before the Tribunal shall be responsible for and bear their own costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : JONES and SHIRE OF MURRAY [2006] WASAT 140 MEMBER : MR J ADDERLEY (SESSIONAL MEMBER) HEARD : 4 MAY 2006 DELIVERED : 5 JUNE 2006 FILE NO/S : DR 16 of 2006 BETWEEN : LORETTA FAY JONES
- Applicant
AND
SHIRE OF MURRAY
Respondent
Catchwords:
Childcare centre Operating hours Schoolage children Residential amenity Noise nuisance Traffic Landscape buffer
Legislation:
Environmental Protection Act 1986(WA)
Environmental Protection (Noise) Regulations 1997(WA), Reg 7, Reg 7.1, Reg 8, Table 4.2
Planning and Development Act 2005(WA), s 242
Shire of Murray District Town Planning Scheme No 4
(Page 2)
Result:
Application upheld in part
Category: B
Representation:
Counsel:
Applicant : Mr B Flugge
Respondent : Mr M Jones
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 An application for extended use of a childcare centre at Lot 101 Lloyd Avenue, Ravenswood was refused by the Shire of Murray for reasons that the proposed changes to allow earlier opening and later closing times and to allow the accommodation of schoolage children at the centre would result in the surrounding area being adversely impacted upon by an unacceptable increase in noise and traffic.
2 In the course of review, the Tribunal heard evidence from the respondent affirming an opinion gained from the process of public consultation on the proposal that the extended hours of operation and the introduction of schoolage children would add to the level of nuisance presently being experienced by neighbours of the childcare centre.
3 Two residents of the area sought leave to make submissions on the review before the Tribunal on grounds that, as immediate neighbours, they were able to provide evidence as to present experience of the operations of the childcare centre. The Tribunal accepted the submissions, which highlighted the nuisance impact of outdoor play during the day and the disturbance occasioned by early morning activity. Concerns as to the increased nuisance that would be generated by the introduction of schoolage children were expressed as a matter of opinion by both residents.
4 The applicant tendered evidence that the extended hours of operation would enable flexibility to accommodate the needs of some parents who, because of work commitments, needed earlier drop off and later pick up hours. The capacity to accommodate schoolage children was also a demand of parents and it was identified as a common service of childcare centres.
5 The applicant offered the opinion that noise nuisance from traffic would be no greater than at present, that early morning car park disturbance, whilst more sensitive than at other times, would be minimal and of short duration, and that whilst schoolage children had differing activity characteristics than preschoolers, they would be managed by a constructive programme of activities that would effect reasonable behaviour.
6 The Tribunal took account of the Environmental Protection (Noise) Regulations 1997 (WA) insofar as it implies a greater caution to the
(Page 4)
- generation of noise nuisance prior to 7 am in noisesensitive premises. Because the applicant was not able to demonstrate to the Tribunal's satisfaction that earlier operational opening would not cause additional nuisance and disturbance to the surrounding residents, the request for approval to open the childcare centre at 6 am rather than at 6.30 am was disallowed.
7 Insofar as the extension of closing time from 6 pm to 6.30 pm was concerned, the Tribunal was satisfied that the respondent had not made a sufficient substantiated case to deny approval.
8 The argument to disallow accommodation of schoolage children was also insufficiently substantiated to be sustained. The Tribunal was satisfied that the circumstances of activity programming at the childcare centre, absence of the schoolchildren during school hours, and the lack of evidence that schoolage children would otherwise be any more of a nuisance than preschoolage children, were such as to accept the proposal to permit the accommodation of schoolage children at the childcare centre.
9 The application for review of the Shire of Murray's decision to refuse the proposed extension of operating hours and the additional capacity to accommodate schoolage children at the childcare centre at Lot 101 Lloyd Avenue, Ravenswood was upheld in part and conditional approval granted, as detailed at the conclusion of the report that follows.
Introduction
10 This is an application for review of the decision of the Shire of Murray (the Shire, and also referred to as the respondent) to refuse to grant planning consent for the extension of operating hours and for permission to care for schoolage children, at an existing, operating childcare centre situated at Lot 101 Lloyd Avenue, Ravenswood in the Shire.
11 The application for planning consent for the extension of operating hours and for permission to care for schoolage children at the childcare centre was submitted to the Shire by the applicant by letter dated 25 October 2005.
12 The application was received by the Shire on 3 November 2005, and after conducting public consultation, and consideration of the facts, the Shire resolved to refuse the application on 21 December 2005.
(Page 5)
13 By letter addressed to the applicant dated 10 January2006, the Shire conveyed advice of its decision to refuse the application and its reasons therefor.
14 On 16 January 2006, an application for review of the Shire's decision was registered with the State Administrative Tribunal.
The proposal
15 The proposal under consideration relates to an existing childcare centre situated at Lot 101 Lloyd Avenue, Ravenswood (also known as the Ravenswood Learning Centre).
16 The childcare centre is constructed on a rectangular lot of 2980 square metres on the southeastern boundary of a predominantly residential locality, generally characterised by lots of about 800 1000 square metres.
17 The prevailing zoning affecting Lot 101 and its urban surrounds to the north and west under the Shire of Murray Town Planning Scheme No 4 (TPS 4) is "Residential". Land to the east and northeast of Lot 101 is zoned "Residential Development", whilst land to the south of Lot 101 across Lloyd Avenue is zoned "Rural".
18 The childcare centre on Lot 101 Lloyd Avenue is adjoined by two dwellings to the west, a duplex development to the north and a dwelling on a larger residential lot to the east. Land to the northeast and to the south (across Lloyd Avenue) is vacant and generally parkland cleared bush.
19 The proposal submitted to the Shire by the applicant was to extend the permissible operating hours of the childcare centre situated at Lot 101 Lloyd Avenue, Ravenswood from the currently allowed operational hours of 6.30 am until 6 pm, to operational hours of 6 am until 6.30 pm. The purpose of the extended operational hours would allow flexibility to receive and accommodate a very small number of children at the childcare centre at the extremities of the operational day because such a demand has arisen through the circumstances of one or two parents' unusual working conditions.
20 The proposal also seeks to add a new capacity for the childcare centre to accommodate schoolage children from six years old to twelve years old, in addition to the presently approved capacity of the centre to accommodate preschool children aged from three years old to
(Page 6)
- six years old. There is no intention to adjust overall numbers that may be accommodated at the centre, which is otherwise limited to 38 children by condition of the original planning consent for the childcare centre issued in November 2003.
Town Planning Scheme provisions
21 TPS 4 regulates land use and development in the Shire.
22 Clause 2.1 lists the general objectives of TPS 4 as follows:
"To preserve the integrity of the Shire of Murray and its identity;
To ensure the orderly and proper development of the Scheme area; and
To secure the amenity, health and convenience of the Scheme area and its inhabitants."
23 Lot 101 Lloyd Avenue, Ravenswood is zoned "Residential" under TPS 4.
24 The use or development of land in the "Residential" zone for the purpose of a childcare centre may be permitted by the responsible authority after advertising and the conduct of public consultation in accordance with cl 5.2.2 of TPS 4.
Environmental Protection (Noise) Regulations 1997
25 Environmental noise in Western Australia is governed by the Environmental Protection Act 1986 (WA), through the Environmental Protection (Noise) Regulations 1997 (Noise Regulations).
26 Regulation 7 stipulates:
"7.(1) Noise emitted from any premises or public place when received at other premises;
(a) must not cause, or significantly contribute to, a level of noise which exceeds the assigned level in respect of noise received at premises of that kind; and
(b) must be free of;
- (i) tonality;
(ii) impulsiveness; and
(iii) modulation."
27 Regulation 8, Table 4.2 specifies Assigned Noise Levels for Noise Sensitive Premises as follows:
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The refusal by the respondent
28 The respondent refused the application to allow the trading hours of the childcare centre at Lot 101 Lloyd Avenue, Ravenswood to be
(Page 8)
- conducted from 6 am until 6.30 pm, and to allow the capacity of the centre to accommodate schoolage children from six years old up to twelve years old.
29 The reasons cited by the respondent for its decision of refusal were:
1) The proposed changes to the childcare facility will result in the surrounding residential area being adversely impacted upon by an unacceptable increase in noise and traffic;
2) Council has a responsibility to the amenity of surrounding residential properties to ensure that developments do not intrude into the prevailing lifestyle of the area.
The respondent's argument
30 The respondent's argument relies on the circumstance that residents in the immediate vicinity of the childcare centre are presently experiencing noise and traffic nuisance which adversely impacts upon their lifestyle and amenity. The extension of operating hours and the presence and activity of older children at the childcare centre will cause further diminution of the amenity of the surrounding residential area.
31 Mr M Jones, Manager of Planning and Development Services at the Shire, recorded in his witness statement on behalf of the respondent, that objections and complaints had been received from all adjoining residents in regard to the proposal.
32 Reference to submissions received by the respondent recorded in the Minutes of the Shire of Murray Planning and Development Services Committee meeting, of 14 December 2005, prior to determination of the application, identifies the following particular concerns expressed by local residents:
• There is a regular occurrence of disturbance by the arrival of customers at 6.30 am and by the proprietors and staff even earlier. This level of disturbance would be unreasonably aggravated if allowed to occur half an hour earlier as proposed.
• Later closure in the evening would likely become the norm, even though the applicant only seeks the approval to accommodate occasional circumstances of late child pick up.
(Page 9)
- • Older schoolage children have differing needs and requirements than preschool children. They are by nature more boisterous and likely to generate greater noise levels than that presently being experienced by adjacent residents.
• The two metre landscape buffer around the perimeter of the centre has been inadequately implemented. Children play games involving running to and banging the fence. This nuisance would be deterred if the landscape buffer was properly established.
• The childcare centre has insufficient space allocation for six to twelveyearold children when comparing with the original plans of the centre, which allocated the three main rooms of the centre to 0 to twoyearolds, two to threeyearolds and three to sixyearolds.
• The childcare centre may not have the facilities for older children or the capacity to entertain and supervise them.
• On occasions, the centre has been used for weekend activities causing nuisance to the local residents.
Parties applying for leave to make a submission under s 242 of the Planning and Development Act 2005
33 Mr K Bermingham of 74 Rodoreda Crescent, Ravenswood and Mr A Rogers of 23A Gowman Way, Ravenswood sought leave of the Tribunal to make a submission on the application.
34 Section 242 of the Planning and Development Act 2005 (WA) provides:
"Submissions from persons who are not parties:
The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter."
35 Both Mr Bermingham and Mr Rogers had conveyed their interest to the Tribunal in writing, advising that each was a resident of separate premises which immediately adjoined the childcare centre and that each was concerned with the impact of noise nuisance generated by the centre
(Page 10)
- and the prospect of increased nuisance if the current application was approved.
36 The Tribunal is generally cautious in granting leave to persons who are not parties to the application, but in this case it is accepted that the interest of Mr Bermingham and Mr Rogers is sufficient because the questions of noise generation and nuisance affecting the amenity of the locality are fundamental to determination of the application. In this regard, the submissions of Mr Bermingham and Mr Rogers in their capacity as immediate neighbours with firsthand experience of noise generated by the centre would be of practical assistance to the Tribunal in assessing this application.
37 The opportunity to oppose the hearing of submissions from Mr Bermingham and Mr Rogers was afforded to the applicant and the respondent. No objection was recorded from either party.
38 Mr Bermingham identified that he lived in the residence immediately to the west of the childcare centre. The substance of his submission to the Tribunal was that:
• The childcare centre constitutes a business rather than a community service and that, therefore, the effect on local amenity should be given greater weight than if it was to be accepted as a community service.
• As a shift worker, his sleep is regularly interrupted by the noise of children at play. The noise of children can be heard from the Rodoreda Crescent front of the property (which is about 40 50 metres west of the childcare centre).
• The childcare centre has already accommodated some schoolage children which has caused increased noise levels.
• The impact on amenity will be much greater than is currently suffered if children in the age group of six to twelve years old are allowed to be accommodated at the childcare centre.
• Opening the childcare centre at 6 am would be unreasonable because disturbance is already occurring as
- a result of staff arriving prior to the presently permitted 6.30 am start.
- • Conditions of the original approval for the childcare centre have not been fully complied with. These include planting of the perimeter landscape buffer, marking of parking bays, and fencing.
39 Upon examination, Mr Bermingham acknowledged that he had not made any formal complaint to the Shire as to noise nuisance other than as a response to the present proposal.
40 The principal source of noise nuisance to Mr Bermingham is from the outdoor play times of the childcare centre when he was working on nightshift and he was attempting to sleep during the day. Early morning arrivals involving cars arriving, car doors closing and car park chatter are also a significant nuisance for Mr Bermingham and the rest of the family.
41 Mr Rogers identified that he lived in a residence immediately to the north of the childcare centre. The substance of his submission to the Tribunal was that:
• His house was only three metres from the childcare centre play area.
• As a pensioner on disability support spending much time at home, he was continually disturbed by noise from the centre.
• In his opinion based on experience, older children create more noise than younger children. Strong objection is therefore raised to the proposal to allow the childcare centre to cater for children older than six years old.
• Noise from the centre has exacerbated Mr Rogers' health problems.
• The landscape buffer along the perimeter of the childcare centre is insufficient to prevent banging of the fence during children's games.
• He objects to the extension of trading hours.
(Page 12)
42 Mr Rogers confirmed that he had not made a formal complaint to the Shire on the conduct of the childcare centre other than in the context of a submission on the current proposal.
The applicant's argument
43 The applicant's argument justifying the proposal to extend the hours of operation of the childcare centre and the capacity to accommodate schoolage children is based on the perceived needs of families in the Ravenswood locality.
44 The applicant, Ms L Jones, owner and childcare worker of the Ravenswood Learning Centre, gave evidence that the extended hours of operation are intended to allow early childcare for a particular circumstance involving a parent employed as a nurse at Peel Hospital and whose shiftwork requires her child to be cared for from 6 am.
45 The extended closing time of 6.30 pm would only be exercised in circumstances when parents get held up and are unable to collect children by the normal closing time. This is an occasional occurrence. In most circumstances, closure would still occur at 6.00 pm.
46 The applicant emphasised that the childcare centre is not seeking to expand its approved capacity of 38 children. The proposal to allow accommodation of schoolage children is not unusual and has been the situation at six childcare centres where she has worked in the past.
47 Presently the childcare centre is operating with 13 17 children supervised by four fulltime staff and three parttime staff.
48 The childcare centre meets all childcare licensing regulations to accommodate schoolage children.
49 In response to examination, the applicant identified that outdoor play is generally confined to 9 am until 11.30 am in the morning and then 1 pm until 5 pm in the afternoon.
50 In her experience, the applicant suggested that the squeals of a twoyearold were rather less tolerable than the noises of older children at play.
51 Activities for schoolage children would focus on a programme of arts and crafts.
(Page 13)
52 Witness Mr B Flugge, a qualified and experienced town planner, appeared for the applicant. Mr Flugge advised the Tribunal that, in his opinion, the additional 30 minutes' operational time of the childcare centre in the morning and evening will not have an adverse impact on the amenity of surrounding residents.
53 Mr Bermingham's house on adjoining Lot 7 Rodoreda Crescent is buffered from noise nuisance by a large outbuilding on Lot 7 and by internal fences between the house and the childcare centre. These barriers would be sufficient to mitigate any additional noise as a result of the proposed extension of activities at the childcare centre.
54 Additional vegetation planted in the perimeter landscape areas of the childcare centre will also assist in decreasing any potential impact (if any).
55 Mr Flugge asserted that traffic is not expected to increase as a result of the proposed changes to hours of operation or the accommodation of schoolage children. Most traffic will access the centre from the west along Lloyd Avenue.
56 Some of the children in the schoolage group would be related to the preschool children; hence, additional pick up and drop off traffic movements would not be expected in those circumstances.
57 Mr Flugge pointed out that the Shire's Officer Report to the Planning and Development Services Committee of 14 December 2005 identified that the Department of Community Development and Childcare Licensing (Department) did not object to the extended hours proposed. The same report also indicated that the Department had advised that preschool and schoolage children were permitted to be accommodated. Numbers of children were determined by space allocation per child.
58 Mr Flugge also pointed out that the Officer Report to the Shire's Planning and Development Services Committee had recorded that all conditions of the original approval of the childcare centre had been complied with, other than circumstances of compliance with the specified hours of operation when out of hours pick ups occurred because parents were running late.
59 On examination, Mr Flugge indicated his awareness of the Noise Regulations and the significance of the expectation under the Noise Regulations for lower levels of sound generation prior to 7 am.
(Page 14)
60 Mr Flugge agreed that there were presently five dwellings on the lots immediately adjoining the childcare centre, with a prospect for more dwellings to be located on land adjoining the centre to the northeast.
61 The applicant's evidence included a statement of costs incurred by the Ravenswood Learning Centre which were sought as compensation for preparation and attendance at the Tribunal.
Analysis
62 The respondent's argument appears to be founded on the supposition that the extension of operating hours and the activities of schoolage children at the childcare centre will generate unacceptable levels of nuisance to surrounding residents as a result of noise generated by pick up and drop off traffic and child outdoor play activities.
63 Insofar as noise generation associated with schoolage children is concerned, no evidence of substance was able to be advanced by the respondent that schoolage children would constitute any more of a nuisance by the nature of their activities than preschool children. Rather, the respondent appears to have relied on an untested assertion in its reasons for refusal.
64 The daily programme for schoolage children, according to the applicant, (refer appendix 8, witness statement of Ms L Jones) would involve attendance at the centre until about 8.20 am when the children would be taken to school. The children would be collected from school and returned to the childcare centre from 2.45 pm ready for afternoon tea at 3.30 pm. The Tribunal deduces from this arrangement that schoolage children would logically be attending school and be absent from the centre for a substantial proportion of the day, including the morning outdoor play time and much of the afternoon play time.
65 According to the applicant, the programme for children from 4 pm would be to undertake craft activities.
66 Evidence provided by Mr Bermingham indicated that, in his opinion, children aged six to twelve years old are, by their nature, more boisterous than the younger age group and that, consequently, his daytime sleep whilst on shiftwork would likely be more frequently disturbed. It appears to the Tribunal, however, that from 8.20 am until after 3 pm on days other than school holidays, the older children in question would not actually be at the childcare centre.
(Page 15)
67 Mr Rogers also stated that, in his experience, the older the children, the more noise created.
68 The Tribunal acknowledges that children of differing age groups will manifest different characteristics in terms of activity and play. It is not clear, however, that an older group of schoolage children will be any noisier in terms of activity and play than preschool children. The Tribunal has not been presented with any expert and independent evidence against which to measure the assertions of unacceptable nuisance generated by attendance of schoolage children.
69 Evidence was submitted that accommodation of schoolage children at childcare centres is common practice and that the Department had no objection to such arrangements provided space allocation requirements per child were not compromised.
70 Given the lack of credible evidence that schoolage children will cause an increased level of noise nuisance at the childcare centre, and because the schoolage children will, at least during term time, of necessity not be at the centre for much of the day when outdoor play is programmed, the Tribunal finds no tenable grounds to support the respondent's reasoning for refusal of this aspect of the application.
71 It is acknowledged that schoolage children not involved in holiday programmes otherwise provided by other agencies, may be present at the centre during school holidays, but again the circumstances are such that there is a lack of evidence of any substance that their presence and activity would be any more problematic than younger children.
72 Turning to the question of extended hours of operation of the childcare centre, the respondent offered the opinion that the extension of hours will diminish the amenity of the surrounding residential area.
73 Mr Bermingham, in his submission as a resident neighbour, was clear in his evidence that early morning arrivals at the childcare centre were audible and constituted a disturbance to himself and family. Whilst opposed to the extension of hours in the evening, Mr Bermingham didn't cite specific reasons for his opposition.
74 Mr Flugge, for the respondent, acknowledged that early morning arrivals would be associated with some noise, but observed that the drop off process was quick and unlikely to cause prolonged disturbance.
(Page 16)
75 Mr Flugge acknowledged the rationale behind the Noise Regulations that required a reduced level of sound generation prior to 7 am.
76 The Tribunal is again faced with arguments that are not substantiated with convincing, objective evidence. Mr Bermingham's submission to the Tribunal as to a level of early morning disturbance from staff arrivals and child drop offs is helpful, but not documented, quantified or detailed. Equally, the applicant's argument that early morning arrivals would not cause undue nuisance are simply statements of opinion without evidentiary substantiation.
77 It remains clear, however, that the process of arrival at the childcare centre involves the noise of vehicles entering and leaving the car park, car doors opening and closing, and voices possibly raised in greetings and goodbyes. This activity could reasonably be said to be a potential disturbance in the quiet of the early morning to the surrounding residents and it has been recorded as such by Mr Bermingham.
78 Having regard to such circumstances, including the intent of the Noise Regulations, and having regard to the absence of demonstrable evidence from the applicant that early morning arrivals would not cause disturbance, the Tribunal is persuaded to the view that noise nuisance should be considered with greater caution during the early morning hours prior to 7 am when residents are likely to be still sleeping. It follows that the Tribunal is not sufficiently confident in the evidence put before it by the applicant to support the request to extend operating hours of the childcare centre from 6.30 am to 6 am.
79 Extension of the evening closure from 6 pm to 6.30 pm is not governed by the same caution inherent from the Noise Regulations. No witnesses presented any tangible evidence of impact on amenity likely to be occasioned by the extra half hour operational activity in the evening. Contrary to early morning circumstances, residents are likely to be active at that time rather than sleeping, and sounds emanating from the centre at that time are unlikely to be any more of an intrusion into residential amenity than occurs under the current approval. The Tribunal notes that the principal cause of complaint by residents as to noise nuisance was outdoor play activity which occurs mainly in the midmorning and midafternoon. It appears to the Tribunal that the extension of evening hours to afford slightly later pick up time would not meaningfully alter the nature, extent or impact of outdoor play at the childcare centre. Accordingly, the extension of operating hours in the evening should be allowed.
(Page 17)
80 The request by the applicant for the awarding of costs is unsubstantiated to any degree indicating that the respondent should be required to bear any more than its own costs of this Tribunal review.
Draft conditions
81 The Tribunal was advised by the respondent that, in the event of the Tribunal granting approval to the application for extended operating hours and permission to accommodate schoolage children at the childcare centre, the following conditions would be appropriate:
1. Operation of the 38place child daycare centre shall be limited to between the hours of 6 am 6.30 pm Monday to Friday, with the maximum age of children permitted being 12 years.
2. Additional screeningtype landscaping being established within three months and maintained within the 2.0 metre wide buffer abutting the side and rear boundaries, to restrict children accessing the boundary fencing to the satisfaction of Council's Director of Planning and Development Services.
3. No children being permitted to play outside prior to 7 am.
82 The applicant was content with condition (1) recorded above, but suggested a modified condition (2) as follows:
"2. Provision of a dense landscape buffer being established and maintained of not less than 2.0 metres in width along the side and rear boundaries to the satisfaction of the Director of Planning and Development Services."
83 The applicant opposed the respondent's condition (3) on grounds that it was unreasonable.
84 The Tribunal notes the commonality of interest between the parties to achieve an effective landscape buffer along the sides and rear perimeter of the childcare centre.
85 In respect of the respondent's proposed condition (3), the Tribunal is reluctant to impose conditions of operation of the childcare centre which would be inconsistent with those presently governing the lawful operation of the centre.
(Page 18)
Conclusion
86 For the reasons outlined in the Analysis section of this report, the Tribunal concludes that the application for review of the respondent's decision to refuse permission to allow the extension of operating hours and the accommodation of schoolage children at the childcare centre situated at Lot 101 Lloyd Avenue, Ravenswood is upheld insofar as the operating hours should be permitted to be extended to 6.30 pm in the evenings, and upheld insofar as the accommodation of schoolage children at the centre aged from six years old to twelve years old should be allowed.
87 For the reasons recorded in the Analysis section, the Tribunal is not prepared to allow the extension of operating hours of the childcare centre earlier than 6.30 am in the morning.
Orders
1. The application for review of the decision of the Shire of Murray to refuse to grant planning consent for the extension of operating hours and to allow accommodation of schoolage children at the childcare centre situated at Lot 101 Lloyd Avenue, Ravenswood is upheld in part.
2. The application for the extension of operating hours and to allow accommodation of schoolage children at the childcare centre situated at Lot 101 Lloyd Avenue, Ravenswood is approved subject to compliance with the following conditions:
(i) Operation of the 38place childcare centre shall be limited to the hours of 6.30 am until 6.30 pm from Monday to Friday.
(ii) The maximum age of children permitted to be placed and accommodated at the childcare centre shall be twelve years old.
(iii) The internal side and rear perimeter boundaries of the childcare centre premises shall be landscaped and permanently maintained with a 2.0 metre width dense planting of shrubs, bushes and trees in order to effect a supplementary acoustic barrier to playground noise and to restrict the possibility
- of physical contact with the perimeter fence in the course of children's play.
- 3. Each party to this review before the Tribunal shall be responsible for and bear their own costs.
I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SESSIONAL MEMBER
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