Burl v Moyne SC [2014] VCAT 874

1. In application no. PL13/141, the decision of the Responsible Authority is varied.
2. A permit is granted in relation to the land at No. 8 Hamilton Street, Peterborough (Lot 1 TP895447W and Part Lot 2 PS539883D, Parish of Narrawaturk).
3. The permit will allow the use and development of a licensed restaurant and motel, associated buildings and works, and creation or alteration of access to a Road Zone Category 1 in accordance with the endorsed plans.
4. The permit is subject to the conditions contained in the Appendix.

Mr A Walker of counsel instructed by Finn and Pugh solicitors.

Ms A Patterson of counsel instructed by Maddens lawyers.

Section 82 of the Planning and Environment Act 1987 (two applications).

The review site is on the north side of Hamilton Street (Great Ocean Road) a short distance to the west of the bridge over the Curdies River. The land extends over two lots with an area of 0.713ha. It has multiple easements. The land falls by around 1.5 metres from the front to the rear and also falls from the east to west. The site abuts the Schomberg Inn to its east and a residential property to its west. Undeveloped and farming lands are to the north.

Use and develop the land for a single storey licensed restaurant, 40 motel units in three double storey buildings, plus associated facilities such as a pool and gym.

General Residential Zone Schedule 1; Commercial 1 Zone; Land Subject to Inundation Overlay (part); Significant Landscape Overlay Schedules SLO2 and SLO3; Environmental Significance Overlay Schedule ESO2; Design and Development Overlay Schedule DDO24.

Clause 32.08-1 to use the land for a motel; Clause 32.08-6 to construct a building or carry out works for a motel and in association with a restaurant; Clause 34.01-1 to use the land for a motel; Clause 34.01-4 to construct a building or carry out works for a motel and restaurant; Clauses 42.01-2, 43.02-2 and 44.04-1 to construct a building or carry out works; Clause 52.27 to use land for the sale and consumption of liquor; and Clause 52.29 to create or alter access to a Road 1 Zone.

Clauses 10, 11.05, 11.09, 12.02, 13, 15, 17.03, 18, 21.02, 21.03, 21.04, 21.06, 21.07, 21.09, 22.01, 22.02, 32.08, 34.01, 42.01, 43.02, 52.06, 52.07, 52.34, 55 and 65.

26 June 2014 including the review site, No. 12 Hamilton Street, the Schomberg Inn, and the near and wider area.

1. Peterborough is a somewhat undiscovered town on the Great Ocean Road positioned in a magnificent coastal and estuarine setting. Old Peterborough is small. Recent housing development follows the coastline west of Peterborough but the original settlement has experienced limited change and growth. The review site is this case is near to the Curdies River bridge.
2. The Tribunal must determine whether a permit application for a licensed restaurant and 40 room motel on the review site achieves an acceptable planning outcome. The matter comes to the Tribunal through two applications (by Peter Charles Burl & Pauline Majella Burl and by Edward Sprengers) seeking review of the decision by the Moyne Shire Council ("Council") to issue a Notice of Decision to Grant a Permit for the proposal. Mr & Mrs Burl and Mr Sprengers ask the Tribunal to set aside the decision.
3. The proposed development is a significant project for a town of this size. A project of this type and scale, in this coastal setting, brings with it very differing views about the proposal's positive and negative impacts. Some of those matters relate to the building scale and siting, design detail and how the specific circumstances of the land have been addressed, including flooding. Others address broader matters relating to tourism promotion along the Great Ocean Road and facilities for this small coastal settlement.
4. The Tribunal must consider the proposal having regard to the reasons why a permit is required. We must assess it against the relevant provisions and policies directed by the Moyne Planning Scheme ("Scheme"). Many Scheme provisions and policies, and related documents, guide our assessment. They aim to protect the important natural, landscape and built features of this area. They promote improved tourism and dining facilities.
5. Following our assessment, we have decided to grant a permit but vary the Council's decision. Our reasons follow where we address the large number of grounds advanced in opposition to the permit application. In setting out our reasons, we have not recited all of the detailed material presented and tendered on behalf of all parties. We have been assisted by that material and responses to our requests for information over the course of the hearing. All oral and written material has been considered in reaching our decision.

What is proposed and what changes to the proposal and Notice of Decision were advocated or suggested during the hearing?

1. We are required to consider the permit application before us that comprises a licensed restaurant and 40 room motel. Described broadly, the proposal involves two lots that together form an L-shape. One lot is within a Commercial 1 Zone and the other, that is proposed to be subdivided from a larger lot[1], is within a General Residential Zone[2].
2. The single storey licensed restaurant is proposed at the front of the site with two external decks, one to the south-west corner and another facing into the site at the restaurant's north-east corner. Based on the car parking formula which we refer to later in these reasons, a total of 155 patrons is now proposed to be accommodated (although more would have been possible under the formula used through building regulations, of 258 patrons).
3. The motel is in three separate, two storey, buildings. Two motel buildings would be within the Commercial 1 Zone to the north of the restaurant. A single storey gym is also proposed near to the restaurant. The third motel pod would be to the west (behind No. 12 Hamilton Street) with an open car park in the most westerly part of the site. Parking for both uses would be accommodated around the site, with 102 car spaces. As a consequence of the 1:100 year ARI flood level, the motel buildings would be elevated above the existing ground level while the car parks would be surfaced at their existing levels. Boardwalks would assist movement from the motel rooms to the accessways. No application has been made for signage.
4. During the hearing, modified permit conditions were suggested or requested by the Council. They were not opposed by the Respondent. They include:
   • An additional 1 metre setback for landscaping along the southern boundary adjacent to the car parking areas.
   • The south-west deck of the restaurant, abutting No. 12 Hamilton Street, to be closed at 8pm.
   • The preparation of a flood management/response plan.
   • Possible consolidation of land/section 173 agreement to ensure the whole of the land remains in a single entity.
   • A cap on restaurant patrons of 155 people (based on the formula for car parking in Clause 52.06).
   • Conditions addressing acoustic issues based on Noise from Industry in Regional Victoria plus acoustic fencing around part of the car park.
   • The preparation of a construction management plan.
   • Floor levels for the motel at 3.0 metres (rather than 2.8 metres) AHD.
5. The permit applicant also offered for Friday and Saturday restaurant closing to be 11pm rather than midnight to accord with the hours of the Schomberg Inn. Further, on the third hearing day, Ms Patterson, for the permit applicant, tendered a plan showing the western motel block being reduced to a single level and some car spaces being relocated should the Tribunal be concerned about view sharing from No. 12 Hamilton Street. We refer to this plan later including submissions relating to the scope of such a change raised by the Applicants' advocates. We granted leave for the parties to provide further submissions after the hearing with respect to these plans as well as modified permit conditions proposed by the Council. We have taken the supplementary submissions into account in reaching our decision.

What permit triggers, provisions and policies apply?

1. A detailed suite of Scheme provisions and policies, and related documents, are relevant to our assessment. We have sought to summarise these below.

1. The review site is within two zones - Commercial 1 Zone [C1Z] and General Residential Zone [GRZ1]. Simply described, the C1Z applies to the eastern part of the site and the GRZ1 applies to the western extension behind Nos. 12, 14, 16 and part of 18 Hamilton Street. We have identified the permit triggers under the respective Clauses earlier in these reasons consistent with the manner in which the application was processed.
2. In his written submission for the Council, Mr Tobin, stated a permit is required for the motel use in the C1Z but it may be arguable that it is not. Ms Patterson argued that the Tribunal did not need to decide this matter and the other parties did not express a strong position either way but, we think, they were inclined to the arguable point.
3. On our reading of the application material and Council officer's assessment, the permit application has been processed on the basis that the use of the C1Z land for a motel requires a permit under Clause 34.04-1. We have decided to adopt this position. There may be some argument about whether the condition in Section 1 of the C1Z referring to a ground floor level includes a shared driveway but we are comfortable with the Council's approach. Conditions we will require relating to the motel use are ones we consider would be able to be applied if only development permission was necessary[3].

1. Multiple Overlays apply to the review site. The LSIO only affects part of the land. We have summarised this as follows:

1. The Overlays manage different elements of development. All are triggered by this application as we have summarised earlier. We do not need to recite the statements of significance, objectives, requirements and decision guidelines, mindful that they are common ground in this proceeding. They have been fully considered by us. We elaborate on some later.
2. It is, however, appropriate to highlight some important elements of the Overlays:
   • DDO24 - Peterborough Residential Area:
     • Focuses on (inter alia) maintaining the existing small scale seaside village character; encouraging site coverage and building separation that provide space, views and vistas between buildings; and maintaining a dominance of landscaping over built form.
     • Includes provisions that buildings and works should not exceed a maximum height of 8 metres above natural ground level.
     • Seeks landscaping that reinforces the character of Peterborough using specified species.
     • Includes maps that identify the town core within Old Peterborough to the south of the Great Ocean Road.
     • Includes provisions relating to buildings and works that are set out in defined Neighbourhood Character Zones 1 and 2. Zone 1 applies only to that part of the review site that is in GRZ1. The part of the site within GRZ1 must be assessed in terms of the buildings and works requirements for the Neighbourhood Character Zone 1:
       • Site coverage of a building should not exceed 40 percent of the lot or 300 square metres, whichever is the lesser.
       • The footprint of a second storey should not exceed 75 percent of that of the ground floor.
       • A minimum front setback of 10 metres from the road surface or which matches the average setbacks of adjacent existing development, whichever is the greater.
       • A minimum side setback of 3 metres.
       • Driveways should be informal and unpaved.
     • Requires the proposal to be assessed with respect to the general requirements and decision guidelines in addition to Clause 43.02.
     • Refers to the Residential Design Guidelines, Peterborough, that are relevant through the decision guidelines of Schedule 24.
   • ESO2 - Peterborough Coastal and Estuary Area:
     • Focuses on conserving and enhancing the environmental qualities of the coast, estuarine ecology of the Curdies River, and the structural and water quality of limestone depressions; properly managing stormwater; encouraging recycling; and encouraging revegetation using native coastal species local to the Peterborough area.
     • Includes considerations that address native vegetation removal and replacement, including the desirability of buffer strips along (inter alia) property boundaries; pollution and siltation; impacts on other properties; and soil stability.
   • SLO2 - Peterborough Urban Coastal Area:
     • Focuses on maintaining Peterborough's small scale seaside village character; encouraging development that fits with the landscape and does not dominate the streetscape and specified long distance views; providing space around buildings; maximising opportunities for view sharing; and protecting specified public vistas.
     • Includes decision guidelines relating to buildings and works, and vegetation, including whether the height of any building is above 8 metres; whether at least 45% of the site is not covered by buildings or impervious surfaces; whether external cladding or painting are in light or pale colours and tones; whether a reasonable sharing of views between properties with significant landscape features is achieved; the impact of a specified flood level on the overall height of a building; and the space available for planting.
   • SLO3 - Western Coastal Cliffs Landscape Area:
     • Focuses on the Western Coastal Cliffs landscape area extending from Warrnambool to beyond Port Campbell.
     • Has objectives relating to vegetation coverage and views of the cliffs and coastal formations; retaining the dominance of an indigenous natural landscape in the coastal area around Peterborough, particularly when viewed from the Great Ocean Road; ensuring that that buildings and structures inland do not dominate views from the Great Ocean Road and that the outlook from the Great Ocean Road towards the hinterland is dominated by the rural landscape; and improving the appearance of residential and rural residential development located on the fringes of Peterborough.
     • Includes design and siting matters in its decision guidelines including specific matters relating to the Great Ocean Road; considering the impact of the proposed buildings and works on the view from a road or another property as a result of the design, siting, height, size, bulk (including the roof), and colour of the building; and utilising low scale building forms, simple building details and avoiding dominant bulky buildings.
3. We refer to flooding and inundation considerations, which are also relevant to the LSIO, later.
4. It is important to recognise that third party exemptions apply with respect to land in the LSIO. This is relevant to the grounds which third parties, or the Applicants for Review in this proceeding, are able to ventilate before the Tribunal. We accept that exemption applies. However, the combination of the following matters are relevant to our conclusion that the Applicants can validly address matters relating to inundation, drainage and flooding risk/hazard in this proceeding:
   • Most importantly, only part of the review site is within the LSIO and, on the information within the application plans, the designated flood level of 2.3metres AHD extends over more of the site than the LSIO[4].
   • ESO2 addresses the coast, Curdies River and estuary, with respect to water quality, stability and ecological values. No third party exemptions apply. ESO2's decision guidelines include "The impact of the development on other properties" and, having regard to the matters addressed in ESO2, we consider drainage and inundation considerations may be said to have relevance in this context.
   • Some matters under Clause 55 that is used to assess a residential building are related to runoff, such as site coverage and permeability.
   • More broadly, Clause 21.09 addresses stormwater management in Peterborough.
   • No third party exemptions apply with respect to buildings and works in the C1Z or GRZ1.
   • Clause 65 requires consideration of "The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard".
5. We do not consider permission is required under Clause 52.06 to reduce car parking for reasons set out later in these reasons.

1. We have identified the most relevant State and local policies earlier in these reasons. We do not need to recite them but, as relevant to the matters in dispute in this proceeding, summarise key directions and outcomes as:
   • The Great Ocean Road is recognised as a major tourism attraction and its sustainable management and development is sought.
   • Tourism and a diverse range of accommodation are encouraged to facilitate access to the coast and a network of tourism opportunities is sought throughout this region. The provision of accommodation and dining options is identified as being important in local policy. Tourist accommodation is expressly encouraged through local policy.
   • Management of the growth of towns along the Great Ocean Road is advocated by respecting the character and promoting best practice design. Growth is directed to strategically identified areas and tourism is to be enhanced in the area. Peterborough is not identified as a node for development, unlike, for example, Port Campbell.
   • Peterborough is recognised for its natural, recreation and tourist values with its features including the dramatic coastline and serene estuarine/river environs and landscapes.
   • Peterborough has a peaceful, small, coastal village character with a low growth capacity within the defined boundaries. Substantial landscaping is sought and the edges of settlements are to be sensitive to surrounding development, the landform and the visual setting.
   • Environmental values of the coast, rivers and estuaries are to be protected including lime deposits, water quality, indigenous vegetation and management of flooding hazards.
   • Vistas and views from the public and private realms are important. Locally significant views that contribute to the character of the coast and coastal hinterland areas are to be protected. View sharing is encouraged for Peterborough's residential and township development.
2. The extract from the Peterborough Framework Plan in Clause 21.09 (below) shows the review site within the Peterborough township boundary. The GRZ1 land is on the periphery. Farming Zone is to the north.

1. Other documents are referenced in State and local policies as well as the Overlays we have addressed above[5]. We have had regard to them where directed to do so by the Scheme or in their capacity as reference documents.
2. We highlight the Residential Design Guidelines, Peterborough, 2006, a document that we are required to consider through DDO24. Should there be any inconsistencies, however, the Scheme prevails. Like DDO24, it contains a number of overarching guidelines and specific guidelines for two Neighbourhood Character Zones. Figure 4.1 shows the whole of the review site as potential residential infill where design guidelines apply. This is despite the fact that part of the review site was rezoned through Amendment C8 in 2005 to Business 1 (now Commercial 1) apparently pre-dating the Residential Design Guidelines.
3. Although other site specific guidelines are set out in the Residential Design Guidelines, none apply in this case[6]. This document also details recommended plantings linked with the Overlays.
4. In the Residential Design Guidelines, part of the review site is identified as being a "Key Site for Development - Great Ocean Road". It is cited as being associated with improved car parking for the Schomberg Inn with landscaping. A landscape buffer is shown along part of the western edge. Fronting the Great Ocean Road, between the Schomberg/parking and a new landscaping area along the main road, the plan notation is:

The establishment of new business activity in one and two level configuration to maximum 8m height

1. A preliminary hearing before another division of the Tribunal addressed whether a cultural heritage management plan is required. Written reasons explain the Tribunal's conclusion that where the land is within an area of cultural heritage significance (being 200 metres from the Curdies River which occurs at the south-east of the site) the proposed works "would not necessarily" constitute significant ground disturbance[7]. The Tribunal recommended a permit condition should a permit issue so as to "lock in the protection of the area of cultural sensitivity"[8]. We have included that condition although some rewording was suggested at our hearing.

Is there sufficient information to make a decision about this application?

1. For the Applicants, Ms Fanning and Mr Walker emphasised the lack of information relating to various aspects of the proposal including ground levels, floor levels and dimensions; insufficient site analysis and review of site constraints; no stormwater management plan; a lack of any flooding, acid sulphate soils, hydrological, geological and coastal hazard vulnerability assessments; a lack of a proper assessment of flora and fauna and impacts on environmental values; a failure to properly assess views and viewlines; and a failure to address the application requirements (eg. ESO2). Ms Fanning and Mr Walker were also critical of aspects of the processing of the application in absence of such information and other steps referred to in the Scheme such as the comments of a design panel identified in SLO2.
2. Ms Patterson, for the Respondent, did not agree. Nor did Mr Tobin. Ms Patterson referred to the material included with the permit application demonstrating that the Scheme's requirements have been met. She also relied on the comments of referral bodies, notably the Corangamite Catchment Management Authority [CMA], whose involvement was sought in the early stages of the project's planning and whose advice has been accepted.
3. We agree that some information required to assist an assessment was lacking. For example, we sought details of floor levels and heights at the hearing, which all parties had an opportunity to address. Although arguably more investigations could have been done, or requested, such as with respect to building floor levels and view sharing, our reasons demonstrate that we are satisfied there is sufficient information to determine this application.

1. On behalf of Mr Sprengers, Ms Fanning did not contend that the restaurant and motel uses on land within the C1Z are unacceptable. She accepted that the commercial zoning of part of the review site means non-residential uses will occur. However, Ms Fanning strongly challenged the use of land in the GRZ1 for a motel. She argued:
   • Any non-residential use of the GRZ1 land is unacceptable and it is not orderly planning to allow a residential area to become a large scale commercial motel.
   • Having regard to purposes of the GRZ, it is questionable how the non-residential use would serve "local needs" and how a motel serves "community needs" because it is a commercial use.
   • A private motel does not create a net community benefit.
   • The development footprint should stop at the C1Z boundary. That would be consistent with the Residential Design Guidelines that do not show commercial buildings beyond the C1Z land and also have a landscape buffer between residential land and the commercial part of the review site.
2. Mr Walker did not oppose the motel on the GRZ1 land or other elements of the proposed land uses.
3. While not pursued at the hearing, some grounds included in the Applications for Review identified concerns with respect to an oversupply of accommodation and referred to the proposal's detrimental economic and social impacts upon existing businesses.
4. In reply, the Council submitted the proposal represents an opportunity to deliver social and economic benefits that are supported by policy. Mr Tobin submitted the proposal is consistent with State policy with respect to sustainable coastal development. That policy encourages more economic development and tourism. He further submitted that Scheme policies contemplate more tourist accommodation in townships where proposals respond to the local setting, environmental and landscape qualities. Local policy for Peterborough anticipates limited commercial growth and the proposal would be located on one of the few sites earmarked for commercial use. The use would be appropriately located fronting the Great Ocean Road and adjacent Schomberg Inn.
5. Mr Tobin stated that a motel in the GRZ1 is an allowable use and is required to be assessed against the decision guidelines in Clause 32.08. He submitted the proposal will serve local community needs by adding a dining option in the town and providing accommodation to support the continued viability of the town. Moreover, the proposal is compatible with the Inn (hotel and guest accommodation) and the dwelling and bed and breakfast at No. 12 Hamilton Street[9]. [Ms Fanning stated that No. 12 had never been used for a bed and breakfast and is instead a private dwelling only].
6. Similar points as those advanced on behalf of the Council were argued by Ms Patterson for the Respondent. She referred to a former motel and guest house in Peterborough that are no longer operational as well as approvals granted for more motel rooms at the Schomberg Inn. She described eating and accommodation options as limited and submitted the proposal would provide a much needed boost to services and facilities to help sustain the town, within the town's boundaries. Ms Patterson submitted there is a need for the restaurant and motel given tourism demand. Reliance was placed on written support for the proposal from Tourism Victoria, the Great Ocean Road Tourism Limited and Council's Tourism Manager who identified gaps in the accommodation market.

1. A permit is not required for the use of land in the C1Z for a restaurant. The car park to be constructed in the GRZ would be used, in part, for restaurant parking, for which a permit is required. The motel would be constructed on land in the C1Z as well as the GRZ1 both of which require use permission. Much of the concern in submissions related to the motel on the GRZ1 land.

1. The proposal is an integrated package of uses and development. The restaurant would cater for motel guests, and others, with parking and associated facilities extending across both Zones. In principle, the package of uses is appropriate and logical. The restaurant and motel would be expected to support one another even though they could operate separately and without reliance on clientele using both facilities.

1. Historically, Peterborough has offered tourist and visitor accommodation, dating back to the 1930s when the Peterborough Hotel operated with 80 rooms in Irvine Street and there was another guest house[10]. Accommodation is available in Peterborough today. There are the eight motel rooms at the Schomberg Inn (with another 11 approved[11]), as well as private holiday rentals, some bed and breakfast facilities, and the caravan/tourist park.
2. No. 12 Hamilton Street was granted a planning permit in 2002 for a second dwelling for use as a bed and breakfast. We were told it is not used as such but the layout clearly affords that opportunity.
3. An important consideration in a balanced assessment is that the availability and development of accommodation and dining options along the Great Ocean Road is referred to in the Scheme[12]. The amount of existing accommodation, and policy direction encouraging more options, are relevant to grounds questioning the need for additional accommodation. The same applies to the question, should there be one, of the need for the restaurant. There are also many similar references in the strategic work underpinning the Scheme about the outcomes desired for Peterborough[13]. These reiterate the strong policy support for a new tourist offer.

1. Clause 21.02-4 states "ensure that tourism developments demonstrate a tourist accommodation need...". There is no demand or economic analysis as part of the permit application material. But Tourism Victoria's advice to the Council assists to address this point. Further, we think it is reasonable to expect the proposed accommodation would serve tourists (and conceivably relatives and others who visit residents in Peterborough). Moreover, our reading of the plethora of documents indicates a demand and need for the type of proposal before us based on considerable research.
2. Even if there was no specific direction in the Scheme or commentary by Tourism Victoria, the application would not automatically fail because need has not been demonstrated consistent with long standing case law[14]:

When the word "need" is used in a town planning sense, it must mean community need. It is not necessary to show an element of urgent community necessity for a facility. Rather need connotes the idea that the well being of a community or some part of it can be better and more conveniently served by the provision of a particular facility. ......

Need is a relevant consideration, but not an essential requirement......If an applicant can show a need for a proposed use, then this factor may outweigh other considerations adverse to the use. However, a lack of need will rarely, if ever, be a ground for refusing to grant a permit.

1. Aside from the assessment by Tourism Victoria, no other economic assessment has been undertaken to our knowledge. Tourism Victoria's advice to the Council concluded the proposal will have significant tourism benefits for the Great Ocean Road region and Victoria as a whole. It would assist to convert established day trips into overnight stays with economic benefits and improved competitiveness with a new attraction.
2. It is reasonable to expect that the proposal will positively add to the tourism and visitor experience and opportunities as well as provide a restaurant in a town that otherwise has only several dining options (hotel, golf club and take-away food). The proposal could also be expected to offer additional employment opportunities, although that has not been quantified.
3. With respect to alleged impacts on existing businesses, it is long standing case law that decisions about planning permits are not focused on protecting existing traders from competition. As far back as 1979, in Kentucky Fried Chicken Pty Ltd, the High Court said[15]:

...the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.

1. Social and economic effects are relevant considerations in deciding on a permit application mindful of the objectives of planning[16]. Tribunal decisions have held that the relevance of these matters is where the contended effects are on the community, not individuals and their private financial interests[17]; the effects are demonstrable[18]; and the effects are "significant" consistent with the wording in the Planning and Environment Act 1987. It may be reasonable to assume that a substantial new business in Peterborough would bring change because there are only a small number of existing businesses today and the closest more extensive facilities are otherwise 12 kilometres to the east in Port Campbell. However, there is no evidence or demonstrable basis upon which we could find any impacts would only be negative, would be significant, or would be unacceptable.

1. Locationally, we find the proposal has policy support. It would positively advance the implementation of Scheme and other policies.
2. With respect to the Great Ocean Road, the review site is proximate to a range of physical and natural attractions such as the London Arch and Bay of Martyrs and at the western end of the series of outstanding features.
3. In Peterborough, the review site fronts the Great Ocean Road, rather than being on a local street in, for example, Old Peterborough. It is partly on land zoned for commercial use. It is proximate to the Schomberg Inn, caravan park, Curdies River, beach, and public facilities such as the tennis courts. It is easily walkable to and from these places. A group of tourist based facilities is consistent with the notion of a node of tourist uses around Irvine and Hamilton Streets noted in the Residential Design Guidelines.
4. The Peterborough Residential Design Guidelines show the town core to be within the heart of Old Peterborough where there are two stores, other community services such as the fire station, and a recently approved shop in construction[19]. New Great Ocean Road tourist shops are nominated.
5. Rather than reaching a conclusion that the proposal would detract from the town centre or core focused on commercially zoned land in Macs Street as contended in some of the grounds of review, we find that commercial uses of the type proposed are consistent with the extensive strategic work undertaken by the Council over more than a decade.

1. As noted already, much of the concern in this application, as argued at the hearing, related to the use of land in the GRZ1 for a commercial use, being the motel. The various documents and Scheme provisions, such as the Peterborough Residential Design Guidelines, do not include this part of the review site as part of the new business area.
2. Motel is a form of accommodation that is allowed in the GRZ1 subject to a permit. The purpose of the Zone includes:

To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations. [Tribunal emphasis added]

1. A permit is able to be granted for a non-residential use if the location is determined to be appropriate and acceptable even if that use will cater for more than local needs. GRZ1 does not preclude or prohibit this.
2. Proposals for non-residential uses in residential areas typically require balancing potentially competing policies. If not appropriately sited and designed, these uses can reduce the amenity of nearby properties and residential areas by, for example, generating additional traffic, car parking and noise. The key is often the level of activity, or intensity and extent of the proposed use, to which existing dwellings would be exposed. The decision guidelines for non-residential uses in Clause 32.08 reflect these types of considerations. They assist to determine whether residential amenity would be unreasonably or unacceptably affected.
3. As a tourist accommodation facility, in a tourist location, the proposed motel would be expected to serve more than local needs. We do not consider that this form of short term accommodation is a land use that would immediately or automatically be deemed unacceptable in principle, as might have been suggested through Ms Fanning's submission. Some of the factors that militate in favour of the GRZ1 land being used for a motel in this case are as follows:
   • The motel will be incorporated with land fronting the Great Ocean Road thereby limiting new access from other roads and directing traffic onto the arterial, and tourist, road.
   • The proposal locates short term accommodation in an area that has constraints with respect to inundation at the flood fringe. It can be fairly said that short term or transient accommodation would be a better outcome in these circumstances than multiple permanent dwellings in the same setting. We say that because occupants do not have the same attachment and desire to stay and protect property as often is the case for private dwellings. Further, the single management of the accommodation rooms can ensure that the property is not occupied or is vacated in accordance with a flood management plan.
   • The review site is earmarked as being within the town boundary and it is adjacent to land that is zoned C1Z and nominated through the Council's strategic planning work for tourism uses.
   • It is not unreasonable to consider that more land might be required for a motel and restaurant than available on the C1Z land if the development is also to be low scale, achieve the building spacing and landscaping objectives, and also provide sufficient on-site car parking.
   • A considerable proportion of the restaurant parking can be directed to land in the C1Z with overflow or larger vehicles accommodated in the western parts of the site.
4. We consider the suitability of the proposed uses turns on the question of amenity impact. We address the amenity issues raised by the Applicants later in these reasons but, in principle, we do not find that the GRZ1 land is unacceptable for consideration for part of the proposed motel or for parking associated with the motel and restaurant.

1. Ms Fanning stated that issues relating to packaged liquor sales or over the counter sales could be addressed by permit conditions. However, she submitted that sales to motel guests would be unacceptable in this location, would affect residential amenity particularly Mr Sprengers' residence and his outdoor area, and the proposed opening hours are akin to the inner city and should be reduced.
2. Additional matters raised in the statements of grounds filed with the Applications for Review or alluded to at the hearing include:
   • Application of the license to the gym and pool area (as shown on the red line plan) is inappropriate and incompatible with these uses.
   • Application of the packaged liquor license for the restaurant is inconsistent with the restaurant use and inappropriate having regard to liquor licenses in Peterborough.
   • Can a de facto 24 hour bottle shop be prevented if the proposal proceeds?
3. Mr Tobin, in response, noted that there was no objection to the permit application from the Victoria Police or Victorian Commission for Gambling and Liquor Regulation. He submitted that amenity impacts arising from people using the car park can be managed. He argued that there is no risk of a cluster of licensed premises in the area given the difficulty in travelling to the location other than by those living or holidaying in the vicinity.
4. Ms Patterson submitted there is a need for the restaurant and motel given tourism demand and the liquor license will simply complement this. She submitted the proposal does not include a bottle shop or 24 hour operation and the sale of packaged liquor is limited to motel guests and diners. Further, there are only three licensed premises in Peterborough and a liquor license associated with a restaurant in the C1Z is appropriate. Ms Patterson submitted the outdoor areas are positioned away from dwellings and the "red line" area allows the gym to be used in association with functions.
5. A permit is required for this component of the proposal under Clause 52.27. The notion that a restaurant would serve liquor is not unusual and, for land in the C1Z, we do not consider the proposal is unacceptable. Commercially zoned land is reasonably expected to be an appropriate location for this purpose subject to conditions that sufficiently protect the amenity of surrounding properties and address other matters in Clause 52.27.
6. There is no proposal for 24 hour use or a bottle shop. The permit applicant has agreed to limit hours to match those applying to the Schomberg Inn. This would reduce the potential for patrons to move between premises if one business was to close earlier than another. Further, the sale of packaged liquor is proposed to be limited to restaurant patrons and motel guests, rather than for wider sale and purchase. This has been agreed to by the Respondent. This is an important distinction and reflects the idea that the license is a complementary element rather than likely to operate as another independent arm of the use of the site.
7. Mini-bars in rooms, and some consumption in communal areas, are not unreasonable. Most of the "red line" areas are internalised rather than across all open areas within the review site.
8. Having regard to the ambitions of the Scheme to promote and encourage tourism and dining options, we find the notion of licensed premises is acceptable. It would create a small group of licensed premises comprising two different types of licensed businesses (being the Inn, a hotel, and restaurant and motel). We do not find this will have a negative impact.
9. We do not consider that the hours of operation for the liquor license are excessive, would facilitate anti-social behaviour, or would be detrimental to the amenity of adjoining properties subject to conditions we address later. It will, moreover, be in the operator's interests to ensure motel guests have limited disturbance.
10. In reaching our conclusion with respect to the proposed license, we have given some weight to the lack of opposition from the Victoria Police to the permit application.

Does the proposal represent an acceptable built form and urban design outcome?

In summary, what are the grounds argued by the parties?

1. The grounds of review filed by Mr & Mrs Burl referred to the proposal as an overdevelopment with regard to site coverage, hard surfacing, the extent of building and car parking, and the lack of space for substantial landscaping. They described the proposal as being contrary to the character of Peterborough as expressed through the Scheme and related policies/document such as the Residential Design Guidelines. The extent of two storey development was contended to be inconsistent with the low scale form and building density of surrounding properties and detrimental to the character of the area. Further, the restaurant building was said to be detrimental to the streetscape having regard to its materials, setbacks, height, lack of landscaping and extent of built form to Hamilton Street.
2. Mr Walker elaborated on these grounds. He submitted the proposal does not respond to the site's context and would be a jarring and discordant element when seen from the public realm. This was particularly with respect to the concentration of the higher and larger built form along the northern boundary. Elements of the design that Mr Walker argued are not site responsive and are contrary to the design outcomes of DDO24 included the size of the buildings and their upper floors (with balconies protruding beyond the lower floors), extensive and unbroken façades, expansive paved parking areas and driveways, minimal side and rear setbacks, a lack of spacing between buildings and room for landscaping, and the shallow front setback relative to abutting development. The raised floor levels mean the development would be higher than a typical two storey building.
3. The grounds filed by Mr Sprengers made many of the same points, upon which Ms Fanning elaborated at the hearing. The proposal was assessed against the DDO24 /Residential Design Principles for land in the GRZ1 wherein it was argued that the motel does not face the road, the built form does not reflect that of the surrounding area, the second storey should be smaller than the ground floor, there should be stormwater harvesting, the village character is not retained, the street setback is too narrow and should reflect the house previously on the land, and there are insufficient breaks between buildings.
4. For Mr Sprengers, Ms Fanning submitted the development will stand out within its context and will not maintain the dominance of landscaping over built form. She argued the proposal will set an undesirable precedent and will compromise the low scale coastal village character. Ms Fanning was most critical of the extent of development proposed on land within the GRZ1, contending the proposal does not accord with the purpose of the Zone nor the SLO2 and Residential Design Guidelines. The interface with the existing dwellings was described as being unacceptable; there should be a buffer not an intensification of building bulk and commercial development.
5. In reply, the Council and permit applicant submitted the proposal meets the objectives of DDO24 mindful that part of the site is in the C1Z where more intensive, and commercial, development is directed. Mr Tobin and Ms Patterson submitted the proposal will retain the low scale coastal character. Identified features supporting this position included the single storey building along the frontage with new landscaping, higher development to the rear off the Great Ocean Road, ensuring the maximum height would not exceed 8 metres, and separating buildings across the review site. Two storey forms were said to be consistent with two storey buildings on the abutting lots and the variety of built form throughout the township. Ms Patterson emphasised that the restaurant could have been expected to be two storeys in the C1Z and through the Peterborough Design Guidelines but the proponent had decided to keep this as a single storey structure to protect views from No. 12 Hamilton Street. Ms Patterson also emphasised the spacing and segmenting of buildings in pods around the site, permeable driveways and parking areas, and plantings that would promote a sense of openness and enhance the natural character of the surrounds. Earthy tones and varied materials would, she submitted, break up any perceived mass.

1. Peterborough has an open and expansive visual and landscape setting given the low lying topography and scrub. Hills that are some distance to the north-west frame the long range views and panorama. The Curdies River estuary and glimpses of the coastline are evident in and along this part of the Great Ocean Road/Hamilton Street. The review site is located near to the Curdies River bridge. It is seen along the Great Ocean Road eastbound and westbound. It is also seen from the rear such as from the northern end of Cummins Street and along Halladale Road that are to the west and north-west of the site. Here, the review site appears as part of the township with one and two storey structures and a foreground with grassland, wetlands and some water-filled limestone depressions.
2. Buildings are typical of older seaside towns with one and two storey forms. Two storey dwellings are often sited to capture views to the coastline or Curdies River estuary. Buildings generally occupy a low proportion of the block, are varied in their siting and style, are on generous lots, have grass and shrubs, and are spaced from abutting development.
3. To the west of the review site, No. 12 Hamilton Street contains a large two storey dwelling setback deeply on its lot. A second, single storey, dwelling is on the same land , further to the west and much closer to the main road frontage. Mostly single storey dwellings extend further westwards, some with boundary plantings such as sheoaks.
4. To the east of the review site is the Schomberg Inn at the corner of Hamilton and Irvine Streets. It comprises a single storey building, with a small two storey form. There is a large two storey shed close to part of the common boundary with the review site as well as a single storey wing of motel rooms.
5. Planning permits have been granted by the Council to add a second storey for more motel rooms and to construct four, two storey, accommodation units to the rear of the Schomberg Inn site.

1. The main concerns pursued at the hearing were with respect to that part of the development in the GRZ1 rather than the C1Z although the overall scale and extent of development were criticised.
2. We have identified key themes from the DDO, the Peterborough Urban Design Guidelines, and local policies above. We have also considered the detailed guidelines we are directed to refer to. That includes the prescriptive elements of DDO24 and SLO2 (such as setbacks, site coverage and the size of the upper levels) as well as outcomes relating to the low scale coastal character that responds to the natural and landscape setting and avoids visual intrusion. The C1Z expects more intensive development than land in the GRZ that (inter alia) encourages development "that respects the neighbourhood character of the area" and refers to "moderate growth".
3. As the review site is within the township, in an area that is not heavily vegetated, both single and double storey building forms will be seen. The design has provided a single storey restaurant to the front that will maintain the low rise appearance of this part of the Great Ocean Road. This is consistent with the Residential Design Guidelines that refer to one and two levels to a maximum height of 8 metres in this location.
4. The proposed two storey structures are similar in height to the two storey elements to the east and west of the review site. The height of 8 metres is foreshadowed through the Overlays. Raised floor levels to address inundation considerations can be achieved within a height of 8 metres. The proposed two storey elements are well separated from the single storey restaurant and, taking the form of three separate pods, the buildings are spaced and disaggregated when contrasted with a single large structure. The extent of spacing around the site is demonstrated through the modest site coverage of 30% with permeable parking areas and landscaping assisting to frame the development particularly at its western end and, by conditions proposed by the Council, along the interface with existing dwellings fronting Hamilton Street. The interface with the Schomberg Inn is less sensitive because that site is also developed with accommodation and is also within the C1Z.
5. A residential building with more than one dwelling in GRZ1 is required to be assessed under Clause 55. Only one of the motel pods is within the GRZ1. The proposal meets all of the numerical requirements such as Standards B6, B7, B8 and B17. For the reasons given above, we are also persuaded that the relevant standards and objectives are met with respect to neighbourhood character mindful that DDO24 describes the equivalent of a preferred character for the town. We have found the proposal responds in an acceptable way to DDO24 and the two SLO schedules.
6. With respect to other elements of the design we find as follows:
   • The restaurant's front setback is less than 10 metres referred to in DDO24 but that figure does not apply to this part of the site. The front edge of the deck is around 7 metres from the street with the building face setback of some 12 metres. The building would be well forward of the Schomberg Inn and the closest dwelling on No. 12 Hamilton Street but it is similar to other buildings further west. With a single storey form, we consider the restaurant is appropriately sited in the streetscape and its forward position is a reasonable expectation based on the C1Z zoning and the Residential Design Guidelines.
   • The boundary development associated with the restaurant and plant room could be said to be uncharacteristic but we find the outcome is acceptable. This edge includes stone walls and timber cladding. It is well treated (provided quality materials are used). This boundary development is in a similar position as suggested in the Residential Design Guidelines and a landscape buffer then extends northward along this boundary as also suggested in the Guidelines.
   • The rear two motel wings have limited separation and extend partway along the rear or northern section of the site. These elements reach 8 metres in height. That height accords with the discretionary height limit in DDO24 and, as a permit trigger for one dwelling in SLO3, cannot be regarded as inappropriate per se. Our concern about this relationship is the fairly minimal 5 metre spacing notwithstanding the offset position of the two building footprints. We do not consider this is sufficient to achieve the sense of spacing and gaps between buildings to allow views as sought by the Scheme. We refer to the upper level of the western motel wing/pod again later in these reasons.
   • The upper levels of the motel pods do not adopt a smaller footprint than the ground floor levels. This does not meet the discretionary requirements in DDO24. We do not consider the pods in the C1Z need to be modified because they are consistent with the existing and approved development on the Schomberg Inn land and, we note, the rear dwelling at No. 12 Hamilton Street that also has sheer walls with little upper level articulation (other than balconies).
   • The height and breadth of the western motel pod extends the equivalent of most of the breadth of the lot at No. 12 Hamilton Street. Even though separated by over 14 metres from the northern boundary with No. 12 Hamilton Street we are concerned about the amenity impacts of this element as we discuss later.
   • The expanse of car parking results in a low site coverage of less than 40% but occupies a large part of the site. The outcome is acceptable mindful of the flooding considerations with respect to the western part of the review site that limit development options. The permeable treatment proposed for the car park will avoid an expanse of asphalt.

Would there be unreasonable or unacceptable impacts on public views and vistas?

1. Most of the submissions about view sharing at the hearing related to impacts on views from private dwellings and properties rather than identifying public viewlines and vistas that would be adversely affected by the proposal. We address views from private properties later. With respect to views in the public domain, the Overlays (such as SLO2 and SLO3) and associated policies seek to retain and protect vistas from public viewing points and other areas of high visual amenity.
2. We consider the proposal would appropriately fit with its built and landscape setting within the township and along this part of the Great Ocean Road. It would not be dominant or prominent when viewed from the east or west along the main, tourist, road. It would not mask any specific views or vistas to landscape features from notable public locations. As the review site is vacant, its development would interrupt views currently appreciated over the land but that is not unexpected. From the north-west and west, the proposal would add buildings into the townscape setting but, with landscaping, the outcome would be similar to the varied shapes and sizes of structures seen on the township edge today. Proposed indigenous landscaping would assist to soften the edge and species are to be selected from the nominated planting list directed through DDO24.
3. We therefore find the proposal would achieve the aims of the Scheme, including the landscape character objectives to be achieved in SLO2, to protect vistas and to not dominate streetscape and long distance views including along the Great Ocean Road.

Has the proposal sufficiently addressed flooding and environmental considerations?

In summary, what are the grounds argued by the parties?

1. Mr Walker and Ms Fanning submitted the proposal does not properly address the flooding and environmental risks that are a consequence of part of the land being regularly inundated. Inundation results from rainfall as well as water backup when the sandbar at the mouth of the Curdies River is blocked.
2. Photographic information and newspaper articles were among the material tendered by Ms Fanning and Mr Walker showing inundation on adjacent lands, the review site, and in the wider area. This included images from August 2013 where we understand water levels rose quickly in a rain event when the inlet mouth was blocked. Emergency works were required to remove the sandbar. Much information was provided as to the circumstances and trigger point at which the inlet mouth would be opened artificially, if not otherwise opened by natural means, to avoid flooding of properties. We do not recite all of that material here.
3. The Applicants submitted that too much development is proposed on the floodplain. Climate change is likely to result in more extreme rainfall events adding to flooding risk in the lower estuary (as acknowledged in the Curdies Estuary Management Plan 2008). They submitted the proposal has not been the subject of proper investigations, eg. stormwater management and coastal hazard vulnerability assessments, the latter being referred to in VPP Practice Note 53[20]. The proposal was argued to be inappropriate given the frequency of flooding and inundation to which adjacent properties are exposed and further impacts from sea level rise and climate change.
4. Further, Mr Walker and Ms Fanning submitted there are too many outstanding concerns or questions to enable the Tribunal to conclude that the regular flooding of the estuary will not have any adverse affects on the proposed development and that the proposed use and development would not have an adverse impact on the sensitive wetlands and estuary. They said a precautionary approach is required and there is not adequate information to provide a sufficient level of comfort regarding impacts to grant approval. Among the range of uncertainties identified were:
   • The lack of information such as with respect to the velocity of flows.
   • The potential for erosion.
   • The extent of hard surfacing that will add to drainage issues, affect water quality, and add to runoff on adjacent properties.
   • The location of the swimming pool beneath the 1% ARI flood level that will impact on water quality, contaminate the waterways and wetlands when it overflows, and will be another obstacle in the floodplain.
   • Access from the rear motel units, where meeting the car park, is below 2.8 metres AHD and otherwise is close to or below 2.3 metres AHD.
   • If the Council's required condition (1a) of a landscape bed along the boundary with No. 12 Hamilton Street is implemented, there will be increased building encroachment into the floodplain.
   • It is not apparent as to how the car park can be constructed on boggy ground and what construction techniques will be required if there are to be no earthworks (as per CMA conditions).
5. In reply, the Council and Respondent emphasised that the proposal had been the subject of lengthy discussions with the Corangamite CMA and that its requirements have been met. Consequently, the floor levels of the motel buildings would be raised to 2.8 metres AHD, being 300mm above the 1% ARI event level plus an additional 200mm freeboard allowance for uncertainties about climate change. Car parks would be created at existing ground level. Boardwalks above the flood level are provided from the motel rooms to the accessways. Fencing would be designed to accord with the CMA's requirements.
6. Ms Patterson referred to the Peterborough Urban Design Framework and Panel report that identified the review site as suitable for development having regard to the CMA's advice. She also referred to the use of water sensitive design principles that will protect the values of the site and surrounds, filter out any pollution, and better manage drainage compared with the existing situation.
7. Ms Patterson and Mr Tobin were critical of the lack of evidence presented by the Applicants to support their contentions. Mr Tobin also submitted that peak rainfall events are unlikely to coincide with peak tourism events.
8. The CMA did not appear at the hearing. Its 30 August 2013 referral response addressed coastal guidelines, property and flood information, flood hazard assessment, floor levels and freeboard, pool fencing and conditions it required on any permit to issue. Conditions included:
   • The finished floor level of all units must be no less than 2.8m AHD. This takes into consideration a minimum freeboard of 500mm above the 1% AEP flood level (e.g. 1% AEP 2.3m AHD + 0.5m = 2.8m AHD).
   • Stumps (not fill) must be used to raise the finished floor level up to 2.8m AHD to ensure no loss of floodplain storage.
   • Flood free pedestrian access (via permeable timber decking) must be provided from all units within the fringe of the floodplain. The access must start at the minimum finished floor level of 2.8m AHD and continue until flood free land is reached no less than 2.3m AHD.

How has planning for Peterborough dealt with flooding and the environmental values of the estuary?

1. Flooding of the Curdies Estuary is a known and significant issue. This arises from water movement through the Curdies River as well back up or blockage where sand regularly builds up at the mouth of the Inlet. There are multiple limestone depressions to the west of the review site that are within the floodplain boundary[21].
2. Planning process for Peterborough (eg. Amendment C8 and the Peterborough Urban Design Framework) have identified the review site for urban development by its residential and commercial zoning in full knowledge of issues relating to inundation. The Framework[22] shows that the township boundary previously did not include the rear portion of that part of the review site now in the C1Z or any of the review site now within the GRZ1. A new "sustainable township boundary" was identified through the Framework. That boundary was accepted by the Amendment C8 Panel as aligning with the outer limit of the flood fringe defined by the exhibited LSIO[23].
3. Clause 22.01-2 identifies flooding as a crucial issue in Peterborough and refers to a Floodplain Management Study that has formed the basis of the LSIO and 1% ARI event level. We understand that level to be 2.3 metres AHD. It is a level that has been applied over an extended period of time. That is evident from a Tribunal decision relating to a subdivision in Halladale Street to which we were referred dating back to 1998[24].

1. There is no doubt that the review site will be subject to inundation from time to time. That is confined to the rear part of the land within the C1Z and a large part of land within the GRZ1. The proposal seeks to respond to this constraint by elevating the motel pods and providing boardwalks leading to safe egress through the front part of the site that is above the 100 year ARI event level.
2. We do not have information or evidence to contradict the CMA's advice with respect to the applicable flood level. It was suggested in submissions that the CMA's position might be flawed or that it only partially addressed the proposal because the address in the referral is limited to Lot 1 and only land zoned Business 1 is identified. However, the referral response shows that the CMA has viewed the original plans and the amended plans. It has addressed elements in the GRZ1 such as the pool plus the motel units and car park that are located within both zones.
3. It is relevant to our conclusions that the proposal sufficiently addresses flooding considerations that:
   • All motel units and access to/from each pod are to be sited above 2.8 metres AHD. The Respondent's updated position at the hearing was a floor level of 3.0 metres AHD but we are not inclined to mandate this higher level by a permit condition because there may be consequences of which we are not aware[25].
   • All boardwalks from the motel units meet the ground at 2.3m AHD or higher land.
   • Other CMA conditions can, we understand, be met including with respect to fencing and maintaining freeboard clearances.
   • Car parking areas are located in the lowest part of the review site and the assessment by the CMA states that the safety criteria for people and vehicles are met.
4. The construction of drainage and stormwater management systems for the land, as required by conditions of a planning permit, may assist to better manage water movement and inundation issues across boundaries. That was a concern raised by the Applicants as we have noted. Drainage relating to the development will manage the site's obligations but is not required to resolve any wider, system, problems.

Would the environmental values of the estuary and wetlands be adversely affected?

1. We do not consider the proposal will adversely affect water quality, the wetlands, or raise issues with respect to stormwater management. The land has little obvious constructed drainage today. With properly and fully constructed stormwater and drainage systems, based on current standards, we consider the environmental values such as those to be protected under ESO2 can be addressed. There may, in fact, be an improvement compared with the existing uncontrolled circumstances. Potential overtopping from the swimming pool is not a significant issue mindful of the other sources of pollution that would be associated with inundation of land developed for urban purposes.

Has the proposal sufficiently addressed climate change and coastal hazard vulnerability?

1. Clause 11.05-4 seeks to ensure that development responds to the impacts of climate change and natural hazards and promotes community safety by siting and designing new dwellings, subdivisions and other development to minimise risk to life, property, the natural environment and community infrastructure from natural hazards, such as flood. Clause 13.01-1 requires the planning and management of potential coastal impacts of climate change.
2. Although the Applicants were critical of the absence of further assessments, we give weight to the ability of the design to meet the CMA's design parameters that take into account climate change and inundation.
3. Clause 13.01-1, as explained in Practice Note 53, states that:

In planning for possible sea level rise, an increase of 0.2 metres over current 1 in 100 year flood levels by 2040 may be used for new development in close proximity to existing development (urban infill).

This policy applies to development proposals in existing settlements and urban zoned areas.

1. The Practice Note demonstrates this point graphically. It also states:

A coastal vulnerability assessment may also assist a council to inform decision making outside an existing settlement or urban zoned area.... In some instances, where local geology may be unknown or unstable, or where inundation from rivers and streams may also be an issue, advice can also be sought from a qualified hydrological or geotechnical expert. These matters should not be deferred for secondary consent as they are required to inform decisions about future use and development. Section 173 agreements should not be applied to individual properties to prevent hazards being considered for future use and development. Planning permit decisions should be made using the best available knowledge and information at the time.

1. The information provided to us appears to be the best available. The proposal has been designed to accord with the CMA's advice and its conditions can be achieved. That referral authority's advice allows for "an increase of 0.2 metres over current 1 in 100 year flood levels by 2040 may be used for new development" consistent with the State Planning Policy Framework. We are not persuaded further investigations must be directed.

Are there potential issues with respect to acid sulfate soils?

1. This question was raised in submissions without any indication that there is such an issue. We have no information to reach a view that it is, or is not, a potential problem.
2. The CMA did not identify this matter in its referral response.
3. State policy mentions acid sulfate soils in the context of avoiding development in identified coastal hazard areas susceptible to acid sulfate soils[26].
4. The Amendment C8 Panel commented on this matter[27] including reference to comments from the EPA and the need for such matters to be taken into account at the time of development so as to be conditioned appropriately. The Panel also observed the Council's comment to the Panel that "Council does not consider it is a significant issue for the majority of the town and it may be able to be adequately addressed as required if and when a development proceeds" [emphasis in the original].
5. EPA guidelines address acid sulphate soils. Often reports are required through permit applications to assess and then manage any acid sulphate soils. It may have been prudent to include such a condition on the Notice of Decision. However, given the nature of construction we understand will occur, significant excavation is not required. Moreover, we would expect that geological investigations by a structural engineer in the building phase would identify any potential to disturb acid sulphate soils, should they exist. State regulations prescribe a management process in such an event

1. Four main issues were raised by the Applicants with respect to impacts on the amenity of abutting properties. They are view sharing, noise, visual bulk and headlight glare. We address each of these matters below.

What are reasonable expectations relating to this land?

1. The parties referred to various cases[28] addressing the question of reasonable amenity expectations where land in a residential zone abuts land in a commercial zone. We agree that in interface situations[29]:

...there are competing objectives on either side of the residential / commercial divide and that a proper planning outcome is one which balances those competing objectives taking into account all of the opportunities and constraints of the site and its neighbours....

1. Various parts of the Scheme seek to ensure that an acceptable level of amenity is maintained for residents adjacent to a commercial zone and where non-residential uses are proposed in residential zones.

1. Mr Sprengers' grounds described the loss of "all views of the Curdies River, sea views, wetlands and the view of the Peterborough Bridge and Great Ocean Road". It was said that the restaurant at the front of the site would block all views to the Curdies River bridge, Great Ocean Road and sea.
2. Ms Fanning elaborated at the hearing with most attention placed on the manner in which the proposal wraps around No. 12 Hamilton Street. She referred to the full, panoramic, northern, views as the most important. Ms Fanning argued that the dwelling at No. 12 Hamilton Street, which has "never" operated as a B&B, has maximised its opportunities and that it is a legitimate expectation for the view over residential land to be retained and shared. The proposal, instead, takes out the main viewlines to the Curdies River and estuary. Views over the saltmarsh/wetlands would be totally obscured. Consequently, the outcome would be a loss of views to the east plus the northern, north-western and north-eastern views.
3. To contend the outcome is unacceptable, Ms Fanning relied on a number of Tribunal decisions. She said SLO2 and local policies reference a need to maximise views from private dwellings. She criticised the failure of those involved in the application process to inspect No. 12 Hamilton Street and prepare viewlines. Ms Fanning contrasted the situation of No. 12 Hamilton Street with that addressed by the Tribunal in Steel[30] where, among other things, the Tribunal found that the objector had not maximised views and the review site was wholly within a C1Z.
4. Mr Walker did not pursue view sharing on behalf of his client. Nonetheless, he offered a number of observations about the outlook to the north from No. 12 Hamilton Street, the residential zoning of land to the north of Mr Sprengers' dwelling, the emphasis on view sharing in the Scheme, and the breadth of the rear motel building that would block views.
5. The Council and Respondent argued that the proposal achieves a reasonable sharing of views with respect to No. 12 Hamilton Street. They believed the views to the ocean from the front of the dwelling were more valued "primary" views. Until the hearing, they were less aware, or unaware, of the emphasis on the northern aspect and views advanced by Ms Fanning.
6. Mr Tobin described the views to the estuary as "opportunistic". He submitted such views cannot be expected to last over the residential land. He drew attention to the expansive balconies around the whole of the upper level of the two storey dwelling at No. 12 Hamilton Street. The primary views to the coast would be unaffected because of the single storey form of the restaurant although Mr Tobin conceded that the views to the north would be "interrupted". Views would be possible over the western car park and he referred to a gap between the two northern motel pods.
7. Ms Patterson said the proposal provides a very reasonable sharing of views at a commercial disadvantage to the Respondent by not having a two storey restaurant to capture coastal views. She referred to the two storey shed and approved developments on the Schomberg Inn site that would take away some views from No. 12 Hamilton Street. She further argued that No. 12 Hamilton Street had not maximised its views because the second, single storey, dwelling on the land could be extended with an upper level, and the bed and breakfast holiday accommodation (based on the issued permit) would not be impacted in the same way as a permanent dwelling.
8. On the final hearing day, Ms Patterson tendered a sketch plan showing the removal of the top floor of the western-most motel pod (Units 29-40). She did not recommend that such a change should be made but instead indicated that the deletion of the top floor could occur should the Tribunal be concerned about the loss of views. In response to this material, at the hearing Ms Fanning said this would not overcome her client's concern as the whole design response needs to be revisited. We granted leave for any further submissions about the sketch plans. Neither of the Applicants made further comments in their supplementary submissions with respect to the merits. The Council's observations were, however, challenged[31].

1. The parties referred to key Tribunal cases with respect to the question of views and view sharing[32]. In Healy, the Tribunal re-stated the principles[33]:

(b) views form part of the existing amenity of a property and their loss is a relevant consideration to take into account;

(c) the availability of views must be considered in the light of what constitutes a reasonable sharing of those views;

(d) in addressing the concept of "reasonableness", it is relevant to consider

(i) the importance of the view to be lost within the overall panorama available; and

(ii) whether those objecting have taken all appropriate steps to optimise development of their own properties.

(e) added emphasis will be placed on principles (b) and (c) above if the issue of views is specifically addressed in the planning scheme.

1. In Wright, the Tribunal added[34]:

This Tribunal would respectfully add a further refinement, which is that in addressing the question of reasonableness under para (c) above it is also relevant to consider the legitimate expectations of those whose view is being affected.

1. Many planning considerations inform "legitimate expectations" including the zoning and development controls that apply to land that is proposed to be developed and properties whose view might be affected. Here:
   • Different expectations apply when land is within commercial and residential zones because of the differing purposes and policies.
   • The planning context is guided by the Overlays emphasising the importance of private views as well as legitimate expectations about building scale and spacing across the review site.
   • Legitimate expectations are informed by the manner in which an existing use occurs and/or development is laid out and whether it is lawful.
2. We find the following factors have particular relevance to our assessment:
   • The Residential Design Guidelines foreshadow two storey development along the Great Ocean Road frontage on the review site.
   • A two storey dwelling could be built on land in the GRZ1.
   • The single storey dwelling in the western part of the land at No. 12 Hamilton Street has not maximised its views. The closer dwelling at No. 12 Hamilton Street is very deeply setback on its lot. We understand it was setback in response to the position of a former dwelling. The outcome is that the dwelling gains a coastal view over a significant part of the front of the review site.
   • The B&B use was said to have never occurred although we have observed that the dwelling is set up to enable such a use. The front part of the dwellings allows a coastal view toward the south-east while the rear part of the dwelling enjoys expansive views to the north-west, north and north-east across the estuary and wetlands to the hills.
   • The two storey dwelling at No. 12 Hamilton Street may not comply with its permit because of additional works such as a ground floor north-facing deck. Even so, it is unreasonable to assume the retention of panoramic ground level views over vacant land zoned GRZ1.
   • Balconies extend around most of the upper level of the closest of the dwellings at No. 12 Hamilton Street; it has the maximised views that can be obtained from this building.
   • Views from the rear dwelling at No. 12 Hamilton Street will be affected by development approved at the Schomberg Inn site should the existing permits be acted upon.
3. We observe the broad extent to which SLO2 seeks to respect views of the many landscape features that are seen in this open setting:

In addition, the exposed topography of Peterborough has encouraged development that seeks to maximise views. Part of the landscape character of Peterborough that is valued by the local community is the ability to view the ocean, the Curdies River and/or the rural hinterland from numerous points along streets, in public areas, and from private dwellings. Respect for the sharing of views, rather than necessarily the retention of all existing views, is therefore an important characteristic of this coastal town ...

To maximise opportunities for view sharing, particularly where views are available to the ocean, Curdies River, the rural hinterland and along the Great Ocean Road from private dwellings.

Whether the siting and design of buildings achieves a reasonable sharing of views between properties with significant landscape features having particular regard to the following:

• The impact of the proposed buildings and works on the view from another property as a result of the design, siting, height, size, bulk (including the roof), and colour of the building.
• The opportunity for a reasonable sharing of views having regard to the extent of the available view(s) and the significance of the view(s) from the properties affected.

Would there be an unreasonable loss of views from the double storey dwelling at No. 12 Hamilton Street?

1. The single storey restaurant would retain views from the front of the dwelling at No. 12 Hamilton Street to the south-east and coastline/cliffs and sea. In addition, the front balcony extends further to the west of the façade where views would remain. We consider this is an acceptable outcome mindful of the legitimate expectations to which we have referred.
2. The proposed development would block much of the view to landscape features from the upper level, rear and eastern side balconies of the double storey dwelling at No. 12 Hamilton Street. This is because of the three motel wings. The approved additions at the Schomberg Inn would also mask some of the views. Existing cypress trees associated with the caravan park currently contribute to an interrupted easterly outlook.
3. The proposed motel suites are setback some 14+ metres from the rear of the land at No. 12 Hamilton Street but the presence of the rear two motel pods, in particular, would not retain a reasonable sharing of views. There would be little scope to see between the two pods and the western pod would sit across the equivalent of nearly the whole of the rear boundary.
4. We have considered the supplementary submission on behalf of the Council (in accordance with leave we granted) with respect to the proposed single storey wing and views that would remain including to the inlet and farmland beyond when sitting or standing on the rear deck of No. 12 Hamilton Street. The Council submitted that change would result in a reasonable sharing of views toward the inlet mindful that a two storey building could potentially be constructed on land in the GRZ1 without a permit being required under that Zone.
5. We have reached the same conclusion. We have decided to take up the suggestion made by the Respondent for the upper level of this western motel pod to be deleted. We do not agree with Ms Fanning that a total redesign is required to achieve an acceptable outcome. Rather, we find the removal of the top floor is a generous suggestion. The modification ensures the outlook to the north and north-west is retained and a reasonable sharing of views is achieved mindful of the legitimate expectations that inform the assessment.
6. Mr Walker submitted that such a change would transform the proposal and could not be implemented by permit conditions. The Council did not agree and nor do we. The change can be accommodated and consequential changes with respect to parking can be made, as we discuss later.

1. The grounds filed by Mr & Mrs Burl expressed concern about the loss of visual amenity from surrounding properties and the visual bulk of the proposed development.
2. We have essentially addressed this matter in the context of other parts of these reasons. The proposed development involves detached buildings of one and two storeys in the C1Z and is acceptable for reasons already given. The scale and extent of built form is not significantly different to the approved development on the Schomberg Inn site.
3. Development proposed in the GRZ1 is to be limited to a single storey motel pod (as determined above) and car parking. We do not consider this to be excessive or unreasonable and, we determine, is an acceptable outcome mindful also of the flooding constraints.
4. The modification to the western motel pod to become single storey significantly reduces visual bulk and the extent to which higher development would wrap around No. 12 Hamilton Street. There is no doubt that the building within the GRZ complies with side and rear setbacks under Standard B17 of Clause 55.
5. The interface with residentially zoned properties would be enhanced with new landscaping in accordance with the specified planting guidelines[35].

1. Potential noise sources identified by Ms Fanning included:
   • Patron noise (including drunk people and people in "party mode") and noise from vehicles and people in the car park.
   • Music noise.
   • Reversing beepers associated with the loading bay and waste collection.
   • Noise associated with the bin store and plant room.
2. She submitted these noise emissions would affect the amenity of Mr Sprengers' residence which effectively sits in a peaceful farming setting. Some noise from commercial uses in the C1Z are expected but, she argued, this is not the case with respect to land north of the review site in the GRZ1.
3. In response, Ms Patterson and Mr Tobin submitted noise can be controlled through permit conditions and that acoustic fencing is to be provided adjacent to No. 12 Hamilton Street. Mr Tobin stated that a higher degree of "acoustic performance" should be provided than the conditions within the Notice of Decision including acoustic treatment of the loading bay
4. This is a quiet location. It is important that noise emissions do not adversely affect the amenity of the area and dwellings. The impacts may be less significant if the rear of No. 12 Hamilton Street is temporary accommodation but we have understood that it may be used as a dwelling.
5. We consider plant, equipment and music noise can be addressed through the requirements of the State Environment Protection Policies including Noise from Industry in Regional Victoria. While Condition 7 on the Notice of Decision relates to plant and requires noise attenuation to the Council's satisfaction, we agree with Mr Tobin that a more detailed acoustic assessment would be desirable for the development as a whole. There are no conditions on the Notice of Decision addressing hours for waste collection, loading and other commercial activities. The EPA's noise control guidelines may address some of these matters but we consider it appropriate to ensure these matters are addressed by an acoustic assessment.
6. No hours of operation have been proposed for the restaurant, only for the liquor license. It is appropriate to align the two given the quiet setting and the adjacent residential property. Such conditions can properly be included on the restaurant even if a permit is only required for its development, consistent with previous Tribunal decisions[36].
7. The hours of operation for the front outdoor deck were discussed at the hearing. The Council proposed a limit of 8pm. We consider a later hour would be appropriate and, related to this, extending the stone wall along the boundary abutting the deck would assist with visual and acoustic privacy for residences to the west. We have adopted 9pm as a fair balance.
8. Patron noise cannot be managed in the same way, particularly noise from the car park. The proponent has sought to address this by an acoustic fence. There is some potential for patron noise although it is also relevant that the motel operator would be expected to encourage peace and quiet for guests. It must be remembered, moreover, that the proposal is for a restaurant not a hotel or bar and the impacts are likely to have a lesser impact with respect to potential drunk and disorderly patron behaviour.

Can potential issues with respect to headlight glare be managed?

1. Mr Sprengers' application expressed concern about adjacent properties being exposed to headlights affecting habitable rooms.
2. The proposed fencing would assist to reduce this impact as would perimeter landscaping with respect to ground level rooms on the adjacent sites although some headlights would be seen from upper level windows. There would be an option to revise the layout to include parking abutting the western motel pod rather than the southern boundary fence and, should that be workable, it could be considered but we do not direct it by conditions. It may have the benefit of directing vehicles to face into the motel rather than toward the southern fence. Making the western car park one-way clock-wise may also assist to reduce headlight impacts for first level rooms and this can be part of a parking management plan (as discussed below). We do not consider all restaurant parking should be shifted westwards as this would increase the amount of movement behind existing dwellings.
3. We expect lighting in the car park would be modest and low scale, such as bollards. It is appropriate for conditions on the permit to provide for this.

1. The plans provide for 102 car spaces to service both the motel and restaurant. To avoid the need for a permit to reduce car parking under Clause 52.06, at the hearing, Mr Walker observed that a cap could be placed on the number of patrons at the restaurant of 155 persons. Ms Patterson agreed with the suggestion. If adopted, the consequence would be that each motel room would have one car space and the restaurant would be provided at the Clause 52.06 rate of 0.4 car space to each patron permitted (total 62, with the balance of 40 spaces for the 40 room motel).
2. Our earlier findings result in the deletion of six units and part of the manager's residence. The manager's residence could be modified and may require additional floorspace at the ground level thereby removing another unit although the sketch plans show a smaller unit rather than the loss of an extra motel room.
3. The modifications to the western motel pod will affect the amount of parking and parking layout. There would need to be up to 34 spaces (one per motel room and one for the manager) with the balance available to the restaurant (potentially increasing patron numbers to 170 based on the rate of 0.4 space to each patron permitted).
4. We have considered this outcome having regard to references in the Application filed by Mr & Mrs Burl, and mentioned at the hearing, about parking for buses. There is no requirement for bus and trailer/caravan parking in the Scheme but tourist locations such as this can reasonably expect long/larger vehicles as guests of the motel or patrons of the restaurant. Rather than increasing the patron numbers, we consider modifying the central parking bays in the western parking area to accommodate longer vehicles such as buses or cars with boat trailers/caravans, is sensible. Six pairs (car space nos. 59-65) could be line-marked as double length bays[37], thereby reducing the number of on-site spaces to 96.
5. The consequences of this modification would be:
   • Of a total of 96 spaces, 34 spaces for the motel and 62 spaces for the restaurant. By coincidence, this allows for the agreed patron cap of 155 persons to be adopted.
   • Reduced landscaping centrally within the site. This is a disbenefit of changing the central bays in the western car park to double-length bays. However, when taking into account the amount of proposed landscaping around the car park perimeter, we think the benefits in accommodating larger vehicles on-site and thereby discouraging their parking off-site or on-street outweigh some loss of landscaping. Our view is reinforced by the fact that the car parking treatment is not an expanse of hard asphalt and is an acceptable design outcome.

Are the parking areas satisfactorily located and useable?

1. Mr Walker doubted that the proposed car parking areas will be useable particularly given their propensity to flood. In addition, the location of the western car park was said to be inappropriate, being too far from the restaurant and causing people to rely on car parking off-site and on-street. Mr Walker also referred to the need for a permit condition to ensure that the western car park is transferred to the permit holder.
2. Ms Fanning raised questions about the ability of the car park treatment to cater for larger vehicles.
3. In response to these matters we find as follows:
   • The parking areas stretch through the site with 14 restaurant spaces on land within the C1Z part of the site if the remainder of the spaces are tied to motel units.
   • Restaurant staff could be directed to park in the western car park leaving the convenient spaces for patrons as part of a car parking management plan.
   • The reduction in the size of the western motel pod frees up an additional six spaces in this central part of the western extension of the site.
   • The Council's suggestion of a parking and traffic management plan would enable the modifications and details of the parking allocation and internal vehicle and pedestrian movements to be finalised. We find this to be an acceptable approach.
   • Conditions on the Notice seeking to limit off-site car parking are beyond the power of the operator to enforce. However, we believe the operator can actively encourage customers to park on-site, such as by providing information on-line and when bookings are made. This can also be addressed in a parking and traffic management plan.
   • Some of the car park may be inundated at times but, at those times, it is unlikely that substantial numbers of tourists would be seeking to arrive at the premises. Nonetheless, the surfacing of the car park needs to be robust to cater for all weather conditions and for larger vehicles. It will be necessary for this to be addressed in detailed design.
   • We agree that a condition is required to recognise the whole of the subject land in one unit. We discussed possible conditions to this effect at the hearing and have adopted the Council's suggested condition that we understand was not opposed by the Respondent.

1. Ms Fanning submitted the application does not provide a response to general fire fighting matters. She particularly referred to the rear motel units that have limited access because the layout relies on a single vehicle crossover to the Great Ocean Road. Reference was made to the grasslands, potential for fire, and whether advice should have been sought from the Council's fire safety officer and, as a precautionary measure, the CFA.
2. The review site is not within a Bushfire Management Overlay and the CFA is not a referral authority in this case. There is no reason to assume that the applicable fire safety requirements under building regulations cannot be met. Similarly, we find emergency vehicles can attend the site given aisle dimensions.

Has traffic management into and out of the site been properly addressed?

1. Ms Fanning described the single access off the Great Ocean Road as posing a significant risk to life due to potential congestion for traffic entering and exiting the site.
2. Further, on-site traffic movement was said by Ms Fanning to easily become congested and cause poor traffic flow. She was critical of the lack of a traffic report for a development of this scale to address such matters including the relationship to the Schomberg Inn's access.
3. In reply, Ms Patterson relied on VicRoads' assessment of the proposal and its conditions that have been accepted by the Respondent. The conditions include construction of kerb and channel along the frontage of the review site. No change was sought by VicRoads to the left turning lane (a matter to which the Council's engineer referred). It is noted that VicRoads has acquired land abutting the site's frontage.
4. VicRoads has assessed the permit application and found it to be acceptable subject to conditions, as have the Council's engineers. We are satisfied that the layout and configuration are acceptable, subject to dimensions being confirmed on the plans. The width of the access aisle allows for two way movement through the site and VicRoads is satisfied with access into the site from the west using an existing deceleration lane. In addition, this is a low speed section of the main road and sightlines are good for vehicles arriving from the east and west.
5. We have referred above to the final details of the internal layout and circulation being addressed through a parking and traffic management plan.

1. We have considered the parties' submissions with respect to permit conditions.
2. We have not adopted some requested variations sought by parties. An example is a request for a wider vegetation buffer adjacent to No. 12 Hamilton Street than that required by the Council which we have found to be acceptable. Another is a request to remove the outdoor seating area at the south-west (front) of the restaurant which, again, with conditions, we find to be acceptable and conclude its removal is unnecessary.
3. The conditions we have included in the Appendix are consistent with the findings set out in these reasons. We note that no time limit was included on the Notice and the provisions of the Planning and Environment Act 1987 would therefore apply.
4. We are satisfied that the changes we are directing to the proposal by permit conditions do not transform the application. Nor do they create unforeseen or inappropriate consequences that require further notice or should result in refusal of a permit.

1. The Applicants contend that the proposal would not produce a net community benefit and has too many negative impacts and uncertainties to justify support.
2. On the other hand, the Council and Respondent contend that the project represents a substantial net community benefit through increased services, in a form that respects the character of the area, while managing potential off-site amenity impacts.
3. For the above reasons, we accept the conclusion reached by the Council and consider there will be a net community benefit. We find the proposal is an acceptable response to the suite of provisions and policies applying to the review site subject to modifications to the Notice of Decision that accord with our findings.

No. 8 Hamilton Street, Peterborough (Lot 1 TP895447W and Part Lot 2 PS539883D, Parish of Narrawaturk)

Use and development of a licensed restaurant and motel, associated buildings and works, and creation or alteration of access to a Road Zone Category 1 in accordance with the endorsed plans.

1. Before the development starts, 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 then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be in accordance with the plans marked as Revision B, dated 25/09/13, but modified to show:
   • (a) The area nominated on the design response plan for 'proposed vegetation to the south boundary' must be increased by an additional 1 metre from the south boundary. The car parks adjacent to the south boundary must consequently also be setback an additional 1 metre and landscaping provided between the car parks and the south boundary to achieve a visual screen to the dwellings to the south to the satisfaction of the Responsible Authority.
   • (b) All levels and dimensions for all buildings and works including finished floor levels that comply with Condition 32 [CMA] and confirming that the maximum height of 8.0 metres is achieved.
   • (c) East and north elevations for the restaurant and plant room.
   • (d) The stone wall on the western boundary extended to the south adjacent to the outdoor deck of the restaurant at a height of no less than 2.0 metres.
   • (e) The first level of motel units 29 to 40 deleted with revisions as required. The ground level footprint of this building must not be increased.
   • (f) Lighting and signage for the car park and accessways. All lighting must be low/bollard form.
   • (g) Modifications to accord with the car parking management plan including the nomination of six double-length spaces for bus, trailer/caravan parking in the western-most car park.
   • (h) Details of all advertising signage, including location and design for signage directing car parking and pedestrian movement.
   • (i) A car park layout plan showing:
     • (i) Two disabled parking spaces provided to cater for two accessible units. Two disabled parking spaces must be provided to cater for the bar / restaurant. Disabled parking spaces will need to satisfy AS/NZS 2890.6
     • (ii) Turning and reversing manoeuvre paths are to be shown on plans. The car park and access must comply with AS2890 for parking space dimensions and aisle widths. Spaces and access aisles must be dimensioned.
     • (iii) A 2.0 metre wide shared footway for the frontage of the site to Hamilton Street to the satisfaction of the Responsible Authority.
     • (iv) Surface material finish for all car park, footpaths, driveway and service areas. In this regard the material should be permeable but able to withstand periods of inundation. Unsealed gravel or crushed rock will not be acceptable.
     • (v) Details of pedestrian pathways through the site to provide a safe passage between unit blocks, restaurant and car park.
     • (vi) Changes required for consistency with the traffic and car parking management plan referred to in Condition 3.
   • (j) Any works or modifications required as a consequence of the stormwater drainage design plan and acoustic assessment required by Conditions 2 and 23 of this permit. This must include acoustic treatment to the restaurant loading bay to protect the amenity of the dwelling at No. 12 Hamilton Street. All works must accord with the requirements of the Corangamite Catchment Management Authority including with respect to fencing treatments.
   • (k) A Landscaping plan incorporating:
     • (i) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant. It is required that the species are native and indigenous to the Peterborough Area. The plan must not include the use of any environmental or declared noxious weeds.
     • (ii) Details of boundary and any internal fencing within the site (taking into consideration CMA requirements).
     • (iii) Provision of no less than 2 rubbish bins within the site
2. Before the development starts, a Stormwater Drainage Design Plan must be submitted to and approved by the Responsible Authority. The design must be prepared by a suitably qualified engineer and must show in appropriate detail how the surface water and stormwater runoff is to be contained on-site or diverted to a legal point of discharge. The approved plan must be constructed and maintained to the satisfaction of the Responsible Authority.
3. Prior to the commencement of the development, a traffic and car parking management plan must be submitted to and approved by the Responsible Authority. The plan must be prepared by a suitably qualified traffic engineer. Once approved, the plan will form part of this permit and must be implemented to the satisfaction of the Responsible Authority. The plan must provide for, but is not limited to:
   • (a) Pedestrian access routes within the car park.
   • (b) Directional signage for vehicles and pedestrians including bays for motel use and restaurant use.
   • (c) Signage and demarcation of parking bays including bays for bus, caravan and trailer parking centrally within the western-most car park.
   • (d) One-way circulation treatment of the western car park.
   • (e) Directing staff parking to the western-most car park.
   • (f) Measures to encourage patrons and guests to park on-site.
4. Before the use commences, the parking and access to the site must be:
   • (a) constructed and available for use in accordance with the plan approved by the Responsible Authority,
   • (b) formed to such levels and drained so that they can be used in accordance with the plan,
   • (c) line-marked or provided with some other adequate means of delineating the car parking spaces, and
   • (d) be inspected and approved by the Responsible Authority.
5. Prior to the commencement of the development, the owner of the land that is the subject of this permit must either:
   • (a) Consolidate all land the subject of the planning permit into a single parcel of land and provide documentation to the satisfaction of the Responsible Authority confirming the completion of the consolidation; or
   • (b) Enter into an agreement made pursuant to Section 173 of the Planning and Environment Act 1987 providing that:
     • (i) Before the commencement of the development, both parcels of land that comprise the site for the purposes of this permit must be held in common ownership; and
     • (ii) Both parcels of land must be used for the use and development permitted under this permit, and in accordance with the plans endorsed under the permit.
6. Prior to the commencement of works, a Construction Management Plan must be prepared, submitted to, and approved by the Responsible Authority. Once approved, the plans will form part of this permit and must be implemented to the satisfaction of the Responsible Authority. The plan must provide for, but is not limited to:
   • (a) Access;
   • (b) Materials storage;
   • (c) Worker parking;
   • (d) Interim stormwater and sediment runoff;
   • (e) Environmental management including the protection of the Curdies Estuary during construction.
   • (f) Construction hours.
   • (g) Compliance with Construction Techniques for Sediment Pollution Control (EPA publication 275) and EPA noise control guidelines with respect to construction and demolition site noise.
7. The use and development hereby permitted must be carried out in accordance with the endorsed plans and must not be altered without the consent of the Responsible Authority.
8. The restaurant and associated car parking area hereby approved must be constructed in a way that avoids significant ground disturbance within the meaning of the Aboriginal Heritage Regulations 2007 to any area of cultural sensitivity on the subject land. This condition does not apply to the construction of minor works referred to in Regulation 12 of the Regulations.
9. External materials to be used in the development must be non-reflective and incorporate muted tones sympathetic to the coastal location to the satisfaction of the Responsible Authority.
10. All plant equipment must be contained within buildings which provide for noise attenuation to the satisfaction of the Responsible Authority, consistent with Condition 23, and no plant is permitted above roof level.
11. Prior to the commencement of the use the approved landscaping must be planted and established to the satisfaction of the Responsible Authority.
12. The landscaping must be provided with an adequate water supply and mulching to ensure the health and continued growth of the vegetation to the satisfaction of the Responsible Authority. The landscaping must be maintained to the satisfaction of the responsible authority for a period of 5 years and within this time if any plants die, become diseased or damaged they are to be replaced with a similar species to the satisfaction of the Responsible Authority.
13. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
14. Until the restaurant building has been completed to a standard deemed acceptable to the Responsible Authority, the site must be screened from Hamilton Street (the Great Ocean Road) to the satisfaction of the Responsible Authority.
15. All swimming pool backwash must to be directed to sewer not to stormwater to the satisfaction of the Responsible Authority.

1. The licensed area shown on the endorsed plans as approved by this permit must not be altered except with the written consent of the Responsible Authority and VCGLR (Victorian Commission for Gambling and Liquor Regulation).
2. Packaged liquor may not be sold to persons other than guests of the motel or diners in the restaurant.
3. The predominant activity carried out on the restaurant premises, must be the preparation and serving of meals for consumption on the premises.
4. Except with the written consent of the Responsible Authority, the liquor licence as approved by this permit must only operate during the following hours:

• The outdoor deck on the south-western side of the restaurant - 7.00am to 9.00pm.

• Gym area - 12 noon - 10.00pm.
• Pool area - 12 noon - 9.00pm.

1. Except with the written consent of the Responsible Authority, the restaurant as approved by this permit must only operate during the following hours:

• The outdoor deck on the south-western side of the restaurant - 7.00am to 9.00pm.

1. The maximum number of patrons permitted in the restaurant at any time is 155. This includes the gym when being used in association with functions.

1. The use must not detrimentally affect the amenity of the neighbourhood, including through the:
   • (a) Transport of materials, goods or commodities to or from the land.
   • (b) Appearance of any building, works or materials.
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.
2. Prior to the commencement of the development, an acoustic report must be submitted to and approved by the Responsible Authority. The report must be prepared by a suitably qualified acoustic engineer. Once approved, the plan will form part of this permit and must be implemented to the satisfaction of the Responsible Authority. The plan must provide for, but is not limited to, an assessment of the proposal under the provisions of Noise from Industry in Regional Victoria (EPA publication 1411); loading, deliveries and waste management; and any works or limitations on hours required to meet the provisions of Noise from Industry in Regional Victoria.
3. Prior to the occupation of the development or commencement of the use allowed under this permit, a flood management plan must be submitted to and approved by the Responsible Authority. The plan must be prepared by a suitably qualified engineer. Once approved, the plan will form part of this permit and must be implemented to the satisfaction of the Responsible Authority and the Corangamite Catchment Management Authority. The plan must provide for, but is not limited to, ensuring an appropriate response in the event of flooding including preparation, evacuation and relocation. The flood management plan must be reviewed on request by the Responsible Authority or the Corangamite Catchment Management Authority to account for any changes in available information about flood management issues.

1. Kerb and channel, including an appropriately located driveway layback, is to be installed for the full frontage of the property.
2. Access point must remain as shown on the plan identified as Job Number 12-209, Drawing No. 106, Rev B.
3. The new access crossover must be designed and constructed generally in accordance with the design for a Typical Rural Driveway Access to Residential Areas as shown on VicRoads drawing SD2066, sealed from the edge of seal of Hamilton St to the property boundary.
4. All car parking is to be on-site. Road reserve/roadside parking must not be permitted.
5. At least 10 working days prior to commencing work within the declared road, the developer must contact Mr John Shiells, Senior Works Manager on telephone number 0418 352264, to discuss construction methods and traffic management issues.

1. Minimum distances between parts of buildings, structure, scaffolding and posts and aerial lines of network operators.
   • (a) A person must not build, erect or maintain a building, structure, scaffolding and posts so that at any time, the building, structure, scaffolding, post or part is closer to an aerial line of a network operator than the relevant minimum distance specified by Powercor (please contact the Powercor no-go zone for details - if applicable).
2. Minimum distances between vehicles, plan, machinery and vessels and overhead network assets.
   • (a) A person must not operate a vehicle, fixed or mobile plant or machinery, or water borne vessel so that any part of the vehicle, plant, machinery or vessel or any associated attachment comes closer, at any timer, to an overhead network asset that the relevant minimum distance specified by Powercor (please contact the Powercor no-go-zone for details - if applicable).

Corangamite Catchment Management Authority Conditions

1. The finished floor level of all units must be no less than 2.8m AHD. This takes into consideration a minimum freeboard of 500mm above the 1% AEP flood level (e.g. 1% AEP 2.3m AHD + 0.5m = 2.8m AHD).
2. Stumps (not fill) must be used to raise the finished floor level up to 2.8m AHD to ensure no loss of floodplain storage.
3. Flood free pedestrian access (via permeable timber decking) must be provided from all units within the fringe of the floodplain. The access must start at the minimum finished floor level of 2.8m AHD and continue until flood free land is reached no less than 2.3m AHD.
4. The void (airspace) below the units must be retained and must not be used for storage purposes.
5. The void below the units must be kept open to allow free flow of flood waters to traverse uninhibited.
6. All car parks must not be raised above the existing ground level.
7. No stockpiling of materials is permitted within the floodplain before, during or after development commences.
8. All material excavated from the site associated with the development must be removed from the floodplain and taken to an appropriate (licensed) land fill site for disposal. Maps showing the vehicle disposal route must also be provided (and approved by council) before any material leaves the site.
9. Fencing around the pool must be designed to allow the free passage of flood waters.

1. The foundations of motel units 29-40 and 1-16 are to be designed to ensure that there will be no future foundation undermining issues should Wannon Water need to excavate down to the existing deep sewer mains passing adjacent to the proposed buildings.
2. The provision, at the developers cost, of the required sewerage works necessary to serve the proposed development.
3. The provision, at the developers cost of the required water supply works necessary to serve the proposed development.
4. The developer is to ensure all proposed buildings (or any overhang) and other infrastructure are clear of existing sewer easements and at least 1 metre horizontally clear of the outside edge of existing sewers and water mains on or adjacent to the property.
5. The developer entering into an agreement with Wannon Water for payment of the new customer contributions applicable to the proposed development.
6. The developer obtaining the necessary consents and approvals for:
   • (a) Alteration to or connection of on-site plumbing.
   • (b) The discharge of "trade waste" (other than domestic sewage) from the property.
   • (c) Changes to the natural surface levels that result in a portion of the building or allotment not being able to be provided with gravity sewerage services.
   • (d) The placement of fill or cutting (benching) over existing sewers, manholes or sewerage easements on the property.

[1] This is subject to another proceeding before the Tribunal that has yet to be heard and determined [P797/2014].

[2] The General Residential Zone recently replaced the Residential 1 Zone that was in operation at the time of the Council's decision to grant a permit. The parties addressed the proposal in the context of the General Residential Zone.

[3] Gillson v Casey CC [2008] VCAT 1688, Monea v Binding [2007] VCAT 1063, Motorcycling Australia v Surf Coast SC [2013] VCAT 1388.

[4] Despite the fact that the Panel report for Amendment C8 stated that 2.3m AHD was the basis for the LSIO.

[5] Eg. Peterborough Urban Design Framework (2002); Siting & Design Guidelines for Structures on the Victorian Coast (1998), Victorian Coastal Strategy (2008); Draft Victorian Coastal Strategy 2013; Great South Coast Regional Growth Plan (2014).

[6] The review site does not include residential land that directly abuts the Great Ocean Road, there are no known sinkholes to which we were referred, the review site is not a corner site in Old Peterborough and nor does it abut the golf course.

[7] Decision and order by Senior Member H McM Wright QC dated 6 May 2014.

[9] Based on Permit 2002-209 which allowed the construction of a second dwelling for use as a bed and breakfast.

[10] Attachment 1 to the Respondent's submission.

[11] Permits PL12/022 and PL13/075 in the form of four motel apartments above the existing motel rooms and four two storey apartments at the rear of the land.

[12] Clause 21.07. Other State strategies referred to in Tourism Victoria's response to the permit application make the same point.

[13] Peterborough Urban Design Framework 2002 at page 64.

[14] Shell Company of Australia Ltd and Others v City of Frankston and Another [P82/1527 8APA 126].

[15] Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675.

[16] Section 4 of the Planning and Environment Act 1987.

1. [17] For example, Boydell Pty Ltd v Yarra CC & Ors [1998] VCAT 564. We are not aware of any Tribunal decisions that would suggest the principle has changed to include private interests even with amendments to section 60 that occurred through the Planning and Environment Amendment (General) Act 2013.

[18] For example, Minawood Pty Ltd v Bayside CC (includes Summary) (Red Dot) [2009] VCAT 440.

[19] Steel v Moyne SC [2013] VCAT 1938.

[20] Managing Coastal Hazards and the Coastal Impacts of Climate Change, Practice Note 53 dated July 2012.

[21] Peterborough Urban Design Framework, Site Analysis Map B at page 19.

[22] Map D, Settlement showing the then boundary of the Township Zone under the Moyne Planning Scheme.

[24] Holbeach v Moyne SC Appeal No. 1998/16496 at paragraph 4.

[25] By way of example, reference was made to the possible need for fill in one supplementary submission.

[27] Section 7.2.5 of the Panel report.

[28] Such as Buckerfield Architects v Boroondara CC [2004] VCAT 659; RPC Architects v Glen Eira CC [2009] VCAT 1068.

[29] Buckerfield Architects v Boroondara CC [2004] VCAT 659 [2004] VCAT 659.

[30] Steel v Moyne SC [2013] VCAT 1938 relating to land at No. 7 Blair Street, Peterborough.

[31] We do not agree that that Council's further submission should be rejected. We granted leave for submissions to be made and we are satisfied that the response has been made within the limited confines of the leave granted.

[32] Such as Tashounidis v Shire of Flinders & Ors 1 ATR 11; Healy v Surf Coast SC [2005] VCAT 990.

[33] Healy and Ors v Surf Coast SC [2005] VCAT 990 at paragraph 21.

[34] Wright v Greater Geelong CC [2013] VCAT 2092 at paragraph 11.

[35] Setback conditions requested by the Council could allow a modified parking layout as discussed at paragraph 151 of these reasons. We note that would potentially require an amendment to Condition 1.

[36] Gillson v Casey CC [2008] VCAT 1688, Monea v Binding [2007] VCAT 1063; Motorcycling Australia v Surf Coast SC [2013] VCAT 1388.

[37] The same format is provided centrally in the public car park adjacent to the Port Campbell harbour which also has a one way operation through line-marking.