[2005] VCAT 2871

It is directed pursuant to Section 85(1)(a) of the Planning and Environment Act 1987 that a permit must not be granted.

Mr N Crawford, Solicitor (Day 1 and Day2) and Mr J Cicero, Solicitor (Day 3 and Day 4). Mr Cicero called for the following expert witnesses:

Mr B McIlraith, Solicitor, who called the following expert witness:

Mr P Talihmanidis on his own behalf, and Mr J Middleton, a Director of Tiber Quest Pty Ltd (both Day 1 and Day 2 only).

1 This is an application under Section 79 of the Planning and Environment Act 1987("the Act") brought by the Permit Applicant for review of the failure of the Colac-Otway Shire Council ("the Responsible Authority") to grant a permit within the prescribed time.

2 The proposal is for an additional seven cabins/villas as part of the existing tourist accommodation complex known as Beacon Point Ocean View Villas. The additional development is to be funded by the sale of individual leases to each cabin as is the arrangement with the existing cabins. The proposed cabins are to be sited amongst the existing cabins.

3 The proposed villas 21 and 22 are to be located north of the manager residence and south of the machinery shed on an area that is generally flat and cleared. Those cabins are proposed to be double storey and contain two bedrooms, with living areas and a deck on the first floor. The proposed villas 23 and 24 are proposed to be constructed on the existing tennis court, and would be single storey and contain two bedrooms. The proposed villa 26 would be single storey and be located between an existing gravel track and the east boundary. The proposed villas 27 and 28 would be single storey and be sited close to villas 24, 25 and 26 at the southernmost portion of the subject land.

4 All of the villas would enjoy coastal views. They would be constructed of a mix of plywood cladding and painted finishes with colorbond roofing. Total building height is not proposed to exceed 8 metres above natural ground level. Each of the proposed villas is proposed to have two car spaces.

5 The subject land is located on the east side of Skenes Street Road approximately 2.5km northwest of the Skenes Creek township. Ms Hansen, in her written statement of evidence, said that the subject land is approximately 850 metres at its nearest point from the Great Ocean Road. The subject land has an irregular shape and a total area of 5.7 hectares.

6 The subject land presently contains 19 dwellings/cabins, 12 of which have recently undergone refurbishment, a 5 bedroom manager residence, a machinery shed and a tennis court.

7 There is an access road from Skenes Creek Road to the manager residence, and there are several internal tracks to the existing cabins which are generally sited in pairs.

8 The subject land is located on a north-south spur, and generally falls to the east and south. It enjoys views across Apollo Bay on the coastline and is largely covered by native vegetation.

9 The Chris's Beacon Point Restaurant and villas are located to the southeast of the subject land.

10 The subject land is covered by the Colac-Otway Planning Scheme and is in an Environmental Rural Zone which is the subject of Clause 35.02. A dwelling, including group accommodation, is a Section 2 use requiring a permit, pursuant to Clause 35.02-1. A permit is required pursuant to Clause 35.02-3 for buildings and works associated with a Section 2 use, within 100 metres of a Road Zone Category 1 (Skenes Creek Road), less than 5 metres from any boundary, or within 100 metres of a dwelling not in the same ownership.

11 The subject land is covered by Schedule 1, Otway Coastal Foothills, to Clause 44.01, Erosion and Management Overlay. A permit is required for buildings and works and the removal of native vegetation.

12 The subject land is covered by a Wildfire Management Overlay, and a permit is required pursuant to Clause 44.06-1 for buildings and works associated with accommodation.

13 A permit is required for removal, destruction or lopping of native vegetation pursuant to Clause 52.17.

14 Reference was made to planning policies including:

•

Clause 15.07 Protection from Wildfire

•

Clause 15.08 Coastal Areas. Clause 15.08-2 provides in part:

Decision-making by planning authorities and responsible authorities should be consistent with the following hierarchy of principles for coastal planning and management as set out in the Victorian Coastal Strategy 2002:

1. Provide for the protection of significant environmental features.

2. Ensure the sustainable use of natural coastal resources.

3. Undertake integrated planning and provide direction for the future.

4. When the above principles have been met, facilitate suitable development on the coast within existing modified and resilient environments where the demand for services in evident and requires management.

•

Clause 15.09 Conservation of Native Flora and Fauna

•

Clause 17.04 Tourism

•

Clause 21.04-2 The Coast and its Environs

•

Clause 21.04-2 The Otway Ranges and Foothills

•

Clause 21.04-7 Tourism

•

Clause 21.04-13 Smaller Communities of the Shire

(including Skenes Creek)

•

Clause 22.01 Main Roads

•

Clause 22.05 Ridgelines

•

Victorian Coastal Strategy 2002 (VCS)

•

Great Ocean Road Region Land Use and Transport Strategy (GORS)

15 The Responsible Authority resolved that, if an Application for Review of the Failure to Grant a Permit had not been lodged, it would have refused to grant a permit on the following grounds:

1 The proposal represents an overdevelopment of the site which is likely to result in unacceptable environmental impacts.

2 The proposal is inconsistent with the purpose of the Environmental Rural Zone.

3 The application is inconsistent with the provisions of the State Planning Policy Framework and the Local Planning Policy Framework.

4 The proposal is inconsistent with the Victorian Coastal Strategy and Great Ocean Road Region Strategy.

16 Mr Cicero, for the Applicant for Review/Permit Applicant, submitted that at the commencement of the hearing the following were the substantive issues:

a) Is there policy support both at the State and Local level for the development proposed?

b) Will the development result in an unreasonable visual impact when viewed from the public or private realm?

c) Are there any geo-technical reasons as to why the development sought not to be permitted?

d) Is the development capable of treating its own effluent so as not to have any adverse environmental impacts?

17 Clause 21.04-13, Smaller Communities of the Shire, including Skenes Creek, has as its key objective to provide an attractive, safe, residential environment and strengthen the economic future of the small communities in the Shire. Implementation will be achieved in a number of ways, including encouraging the location of tourist accommodation facilities within small communities in the region. Implementation will be achieved in a number of ways, including restricting the expansion of communities and areas of landslip and high fire risk.

18 The Victorian Coastal Strategy provides at Figure 8 that the objectives of the strategy are that the extent of settlements is defined, areas between settlements remain largely undeveloped, and the extent of Recreational nodes are defined having regard to the principles for coastal planning and management outlined in the Strategy. A primary focus of the Strategy is to protect the values of the coastal environment whilst providing for sustainable land use, and to this end development pressure and infrastructure will be directed away from sensitive areas (most of the coast) and managed within defined existing settlements (Activity nodes) and Recreational nodes.

19 The Strategy states at Figure 8 that existing settlements range from coastal cities and towns to smaller coastal settlements and the objective for these areas is to provide for development within defined limits (both in extent and intensity) to protect areas of environmental significance and preserve areas between settlements in non urban use. Recreation nodes are areas on the coast outside of existing settlements that exhibit a number of features including having identified strategic priorities for the provision of improved facilities or sites where existing facilities provide an opportunity for development or expansion to increase public benefit. The objective for Recreation nodes is to limit the scale and intensity of development to that appropriate to the area in accordance with the ecologically sustainable development principles for coastal planning and management outlined in the Strategy.

20 The Great Ocean Road Strategy, Direction 2, Managing the growth of towns, includes Strategy 2.1 which is to respect the character of coastal towns and promote best practice design for new development. It is stated that township boundaries established the limits for urban expansion and signal the edge of a town so that the coast and the landscape values and non urban areas can be protected.

21 Strategy 2.2 is to direct urban growth to townships where it can be best accommodated and limit growth elsewhere.

22 It was the submission of Mr McIlraith, for the Responsible Authority, that Council has no records for planning application relating to the existing cabins, although it is estimated judging by appearance alone that they were constructed in the early to mid 1970s. The question is whether the present development containing 19 dwellings/cabins and a manager residence and associated facilities should be expanded by an additional 7 cabins/villas.

23 Mr Cicero submitted that the existing facilities provide an opportunity for expansion to increase public benefit and accordingly the proposal "is exactly what is contemplated by the Victorian Coastal Strategy".

24 Mr Cicero called Ms R Hansen, a Consultant Planner, as an expert witness. Ms Hansen made reference to relevant policy, including the Victorian Coastal Strategy and the Great Ocean Road Strategy. It was the evidence of Ms Hansen that the proposal would fit appropriately within the policy context of both strategies although she noted that considering the issue of development outside of town areas is complex and requires greater analysis than the simple "in town boundary" or "out of town boundary" approach. Ms Hansen said that the combination of policy objectives within the Victorian Coastal Strategy and the Municipal Strategic Statement sets a framework for identifying preferred locations for development, and that these locations are within established townships and Recreation nodes rather than the areas between settlements. Ms Hansen said that of strategic relevance to this application was that these policies do not indicate that other areas are necessarily inappropriate for accommodation, but they indicate that there are preferred and encouraged locations for such development.

25 Ms Hansen concluded that her review of the policies and controls applying to the subject land led her to the view that the proposal is appropriate and could be supported within the current policy framework. She noted that there are preferred locations for tourism related development and the proposal is not located in the defined area, but it is able to meet the exceptions provided within the policies.

26 I accept that the relevant policy does not prohibit development outside settlements such as Skenes Creek. I nevertheless consider that the relevant policy discourages this proposed development to the extent that it should not be supported. Mr Cicero submitted that neither State nor Local Planning Policy discourages the development of the land as proposed, and I clearly do not accept that submission.

27 It might be argued that this is merely an extension of an existing facility. This is correct. I do not consider however that the fact that a facility exists from earlier times should be a reason why that facility should be extended. I consider, having regard to relevant policy, that it would be inappropriate to extend this facility as proposed.

28 Mr O'Leary, in Ridgeway v Colac-Otway SC [2003] VCAT 1272 (16 September 2003) considered a proposal for three detached double storey dwellings behind an existing single storey dwelling at 2 Old Tuxion Road Apollo Bay. This was an Application for Review of the decision of the Responsible Authority to refuse to grant a permit. Mr O'Leary disallowed the Application for Review and directed that a permit not be granted. The subject land was outside the existing township boundary of Apollo Bay. Mr O'Leary said in his Reasons:

34. There was also concern raised by Objectors and the Responsible Authority about the proposal's inconsistency with the Victorian Coastal Strategy. I note in the Strategy that Apollo Bay is listed as an Activity Centre and therefore it is expected that there would be development in and around the Apollo Bay township. However I note the subject site is outside the town's urban perimeter and the proposed development intrude onto the foothills around Apollo Bay. I am somewhat concerned about allowing a development which would further concentrate a residential form of development outside the main urban area of Apollo Bay without sound reasoning.

35. During the hearing Ms Rigo pointed to a number of other residential developments and a recent tourist accommodation facility further up Tuxion Road. Firstly, the residential development on Tuxion/Old Tuxion Road was undertaken some 25 to 30 years ago, long before current planning controls and policies were in place. Secondly, the tourist accommodation approved up Old Tuxion Road was not approved by the Tribunal, and whilst in some respects, some people may consider it a precedent for this development. I do not consider development of one inappropriate form of development as justification for breaching current planning policies existing in the Planning Scheme (and which appears to be reinforced by the Draft Municipal Strategic Review documentation).

29 Ms Hansen sought to distinguish this proposal from the proposal in Ridgeway. It was the evidence of Ms Hansen that:

123 The Colac Otway Shire MSS identifies Apollo Bay as the key Activity Node along this section of the coast in accordance with the directions set in the Victorian Coastal Strategy, while Clause 2104-13 seeks to encourage the location of tourist accommodation facilities within small towns in the region Clause 21 04-2 seeks to promote Apollo Bay for development, while limiting development in other townships to a level that is environmentally sustainable. Along with placing a limit on development within smaller townships, the strategic direction of Council also seeks to discourage development in the intervening land between settlements - except 'where high quality design and minimal environmental impact can be demonstrated.'

124 I believe that from a broad strategic viewpoint, the extension of an existing tourist accommodation development such as Beacon Point Ocean View Villas can be considered appropriate - even when it is outside of the township - provided it is environmentally sound, can be adequately serviced, is architecturally appropriate, does not lead to ribbon development and does not have an undesirable or inappropriate visual amenity impacts. It is also highly relevant that this proposal is not about the establishment of a new use, and it is my view that if it was, the preferred locations for new development should take greater precedence.

125 I note that this was the case in Ridgeway v Colac Otway SC VCAT 1272 for a site at 2 Old Tuxion Road, Apollo Bay (see attachment 3). The application sought to develop land for the construction of 3 dwellings to be used as group accommodation. In handing down his decision, Member O'Leary found that there was one factor that weighed against the proposal - the establishment of this use outside of the township of Apollo Bay (paragraph 30). While the policy environment for the Tuxion Road development was similar- the proximity of the land to Apollo Bay and the clear policy direction regarding the location of new development within the town outweighed other considerations. This is not the case with the subject site, where it is an established use.

30 I consider that Ridgeway supports the refusal of a permit for this proposal. There was already an existing dwelling on the subject land in Ridgeway. I do not consider that extension of the existing development on the subject land is appropriate or is supported by relevant policy, and I consider that this view is supported by the decision in Ridgeway.

31 Whitecrest Great Ocean Road Resort Pty Ltd v Colac-Otway SC [2003] VCAT 1118 (29 August 2003) was an Application for Review of decisions of the Responsible Authority to refuse to grant permits for alterations and additions to existing buildings including converting an existing restaurant into two, three bedrooms dwellings, converting an existing manager first floor are into a separate two bedroom dwelling and constructing an additional six two bedroom dwellings attached to an extending westward of the existing row of six dwellings and on about the same contour some 30 metres from the Great Ocean Road. The subject land was located on the landward side of the Great Ocean Road at Wongarra, which is a rural district located between Kennett River and Skenes Creek, some 13km east of Apollo Bay. Judge Higgins and Ms Monk directed that with respect to the Applications for Review one of the applications be disallowed and the other be allowed and a permit be granted. Judge Higgins and Ms Monk said in their Reasons:

34. Having regard to both the Local Policy Framework and the Coastal Strategy, we are not persuaded to accept Mr Milner's opinion that Wongarra can be described as a coastal settlement or town where existing facilities provide a limited opportunity for redevelopment or expansion. Rather, we think it open to find that Wongarra is best described as a rural district and not a coastal township, or even one of the Shire's "smaller communities". Put simply, there is no central place that could be called Wongarra. As submitted by Mr Townsend, there are no shops, no schools or post offices, no halls or other facilities. This is in distinct contrast to places such as Skenes Creek, Wye River and Kennett River. We think it open to find therefore that the rural district of Wongarra falls within the category of an "area between settlements" which, under the Coastal Strategy and the Local Planning Policy Framework, are to remain largely undeveloped. This is not to say that the policy framework precludes the grant of a permit for the upgrade or expansion of an existing facility. Indeed, as noted above the MSS at Clause 21.04-02 refers to the opportunity for an exception to be made "where high quality design and minimal environmental impacts can be demonstrated" and we go on to consider this later in our reasons. However, the clear weight of policy is to avoid development between defined settlements.

32 Ms Hansen sought to distinguish the subject proposal from Whitecrest. It was the evidence of M Hansen that:

127 It is my view the Whitecrest Great Ocean Road Resort is a very different proposition to the subject case in terms of its form and consequent impact of development. It is located well outside of any established township and is located in an area of cleared, undulating landscape that is highly visible from the Great Ocean Road Unlike Beacon Point Ocean View Villas, which is not located on the Great Ocean Road and is located over 750 metres away from this road (as the crow flies) on well vegetated land, Whitecrest is setback only 30 metres from this important scenic road and is accessed directly from the road.

128 In addition, the villas located on the Whitecrest site are attached, and form a row of continuous built form that is approx 70 metres long. Far from being hidden from the roadside, the existing Whitecrest development is visually intrusive and appears unconnected to any town or settlement within the area. The proposed extension to this facility would have seen the building increased in length from 70 metres to 125 metres, and could not satisfy the intent of policies relating to protection of visual amenity that are found within the Great Ocean Road Strategy, the MSS and Council's local policy with regard to Main Roads/Scenic Routes.

33 Mr McIlraith submitted with respect to Whitecrest:

126 Whilst it is acknowledged that the proposal in that case was a lot closer to the Great Ocean Road, and not at all screened by vegetation, it is again submitted the existing development, being located outside the township area, is prima facie contrary to the intent of the VCS and the GORS in that it locates development outside of defined township boundaries and activity nodes. Additional development will exacerbate this conflict with those policy directives.

34 I accept the submission of Mr McIlraith in this respect and I agree with Judge Higgins and Ms Monk that "the clear weight of policy is to avoid development between defined settlements".

35 The decision of Ms Naylor and myself in Anthony Richard James and Lee Anne James v Colac-Otway Shire Council [2004] VCAT 2584 (20 December 2004) was cited and tendered. This was an Application for Review of the decision of the Responsible Authority to refuse to grant a permit to develop and use the subject land at 89 Tuxion Road Apollo Bay for tourist accommodation comprising a double storey hotel/accommodation lodge comprising 12 bedrooms, a manager residence, and four double storey two bedroom cabins. The subject land was located on the southwest side of Tuxion road approximately 1.6km east of the Great Ocean Road and was generally cleared except for a Pine plantation and contained no improvements. We disallowed the Application for Review and directed that a permit not be granted.

36 In our Reasons we cited the decisions of the Tribunal in Whitecrest and Ridgeway. We said:

36. We find that all levels of the planning policy framework, being State policies, the VCS, and the Municipal Strategic Statement send a consistent message - to manage inappropriate development between settlements along the coast. We are of the opinion that the subject land clearly falls in an area between settlements and, as such, development is to be avoided. We note that similar findings were made in the matter of Whitecrest Great Ocean Road Resort Pty Ltd v Colac Otway Shire Council that concerned the expansion of an existing facility at Wongarra.

37 We went on to quote from the Whitecrest decision.

38 We cited the Ridgeway and said:

38. We agree with this decision, that the policy clearly discourages development outside the urban area of Apollo Bay and the subject land is located further up in the foothills behind Apollo Bay than the land considered by Mr O'Leary. .......

39 I accept that our decision in James can be distinguished from the subject proposal because in the case of James there was no development existing on the subject land. I consider however that what we said in James with respect to development between settlements along the coast does apply to the subject proposal.

40 The relevant policy and strategies clearly do not prohibit this proposal, but I have come to the conclusion that they do not support the proposal and on the contrary relevant policy and strategies suggest that a permit should not be granted.

41 I consider that Ground 3 on which the Responsible Authority would have refused to grant a permit, ie. that the proposal is inconsistent with the provisions of the State Planning Policy Framework and the Local Planning Policy Framework, and Ground 4, that the proposal is inconsistent with the Victorian Coastal Strategy and the Great Ocean Road Region Strategy, have been satisfied, at least as far as the Local Planning Policy Framework and the strategies are concerned.

42 I am prepared to say, based on the geotechnical evidence and the wastewater evidence, that the proposal could be made to be satisfactory in those respects. I do not consider that this outweighs the policy and strategy considerations.

43 One of the purposes of the Environmental Rural Zone is to implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and Local Planning Policies. I consider, or at least to that extent, that the proposal does not satisfy the purpose of the zone.

44 For the above reasons this application is disallowed. It is appropriate for a permit not to be granted, and I will so order.