1. The Tribunal's decision on the question of law dated 1 March 2023 contains extracts of provisions of the Scheme relevant to the assessment of the proposal.
2. We refer to that information but do not fully repeat it here.
3. Rather, we set out the following with respect to each permit trigger and some of the relevant policy.

1. As stated above, a planning permit is required under the FZ2 for both the proposed use and development of the Land.
2. The purposes of the FZ are:

Purpose

To implement the Municipal Planning Strategy and the Planning Policy Framework. To provide for the use of land for agriculture.

To encourage the retention of productive agricultural land.

To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.

To encourage the retention of employment and population to support rural communities.

To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.

To provide for the use and development of land for the specific purposes identified in a schedule to this zone.

1. The decision guidelines of the FZ2 are set out in clause 35.07-6 of the Scheme and address the following issues:
   1. General issues applicable to all permit applications;
   2. Agricultural issues and the impacts from non-agricultural uses;
   3. Accommodation issues;
   4. Environmental issues; and
   5. Design and siting issues.
2. Many of the decision guidelines contained in clause 35.07-6 are applicable to our assessment of the permissions sought under the FZ2.
3. Whilst Schedule 2 to the FZ specifies some other requirements (for instance, with respect to minimum subdivision area) it does not contain any decision guidelines.

1. A permit is triggered under clause 42.01-2 of the ESO to construct a building or to construct or carry out works.
2. The purpose of the ESO is:

Purpose

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To identify areas where the development of land may be affected by environmental constraints.

To ensure that development is compatible with identified environmental values.

1. Clause 42.01-1 provides that a schedule to this overlay must contain:
   1. A statement of environmental significance; and
   2. The environmental objectives to be achieved.
2. The statement of environmental significance and environmental objectives are contained at clause 1.0 and 2.0 of Schedule 1 to the ESO, respectively, and are as follows:

1. The decision guidelines under the ESO head control are in clause 42.01-5 of the Scheme and include consideration, as appropriate, of the statement of environmental significance and environmental objectives.
2. In addition, there are decision guidelines contained in clause 5.0 of Schedule 1 to the ESO.
3. Many of the decision guidelines contained in clause 42.01-5 and clause 5.0 of Schedule 1 to the ESO are applicable to our assessment of the permission sought under the ESO1. We have considered these as, and where relevant.

1. The Land is in the area shown as 'BMO' on the relevant planning maps, noting that there is no schedule applicable to the Land. As the Land is not in any schedule to the BMO, only the terms of the head clause apply to his application.
2. The BMO has as its purposes:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To ensure that the development of land prioritises the protection of human life and strengthens community resilience to bushfire.

To identify areas where the bushfire hazard warrants bushfire protection measures to be implemented.

To ensure development is only permitted where the risk to life and property from bushfire can be reduced to an acceptable level.

1. Planning permission is required under clause 44.06-2 of the BMO to construct a building or to construct or carry out works associated with accommodation.
2. Pursuant to clause 44.06-4:

An aplication must meet the requirements of Clause 53.02 unless the application meets all of the requirements specified in a schedule to this overlay.

A schedule to this overlay may specify substitute approved measures, additional alternative measures and additional or substitute decision guidelines for the purposes of Clause 53.02.

1. The proposal was referred to the CFA pursuant to clause 44.06-6 of the Scheme. The CFA did not object to the proposal, subject to a range of conditions.[17] Whilst we discuss the CFA's position on the proposal in further detail in a later section of this decision, at this stage we note that the CFA does not object to the proposal on the provision that the CFA's conditions must be strictly adhered to:[18]

1. Clause 53.02 'Bushfire planning' applies to an application under the BMO unless the application meets all the requirements specified in a schedule to the BMO.
2. Clause 53.02 has the following purposes:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To ensure that the development of land prioritises the protection of human life and strengthens community resilience to bushfire.

To ensure that the location, design and construction of development appropriately responds to the bushfire hazard.

To ensure development is only permitted where the risk to life, property and community infrastructure from bushfire can be reduced to an acceptable level.

To specify location, design and construction measures for a single dwelling that reduces the bushfire risk to life and property to an acceptable level.

1. Clause 53.02-2 states that the clause contains:
   1. Objectives that must be achieved;
   2. Approved Measures that meet the objectives;
   3. Alternative Measures that may be considered where the responsible authority is satisfied that the objective can be met, noting that the responsible authority may consider other unspecified alternative measures; and
   4. Decision guidelines that set out the matters that the responsible authority must consider before deciding on an application, including whether any proposed alternative measure is appropriate.
2. Clause 53.02-4 contains the Bushfire protection objectives that apply to the proposal.
3. Under each of the following headings are objectives and associated Approved measures:
   1. 53.02-4.1 'Landscape, siting and design objectives';
   2. 53.02-4.2 'Defendable space and construction objective';
   3. 53.02-4.3 'Water supply and access objectives'; and
   4. 53.02-4.4 'Subdivision objectives'.[19]
4. Clause 53.02-4.1 'Landscape, siting and design objectives' are as follows:

Development is appropriate having regard to the nature of the bushfire risk arising from the surrounding landscape

Development is sited to minimise the risk from bushfire.

Development is sited to provide safe access for vehicles, including emergency vehicles.

Building design minimises vulnerability to bushfire attack.

1. The Approved measures for clause 53.02-4.1 are as follows:

1. Clause 53.02-4.2 'Defendable space and construction objective' is as follows:

Defendable space and building construction mitigate the effect of flame contact, radiant heat and embers on buildings.

1. The Approved measures for clause 53.02-4.2 are as follows:

1. Clause 53.02-4.2 also identifies Alternative measures that apply to the Defendable space and construction objectives, as follows:

1. Clause 53.02-4.3 'Water supply and access objectives' are as follows:

A static water supply is provided to assist in protecting property.

Vehicle access is designed and constructed to enhance safety in the event of a bushfire.

1. The Approved measures for clause 53.02-4.3 are as follows:

1. Clause 53.02-4.4 'Subdivision objectives' is not applicable to the proposal.
2. Clause 53.02-4.5 contains decision guidelines that a responsible authority must consider in assessing an application and includes the bushfire hazard landscape assessment, the bushfire hazard site assessment and the bushfire management statement submitted with a permit application.

1. Clause 13.02-1S 'Bushfire Planning' has the objective:

To strengthen the resilience of settlements and communities to bushfire through risk-based planning that prioritises the protection of human life.

1. This clause is required to be applied as follows:

This policy must be applied to all planning and decision making under the Planning and Environment Act 1987 relating to land that is:

• Within a designated bushfire prone area;
• Subject to a Bushfire Management Overlay; or
• Proposed to be used or developed in a way that may create a bushfire hazard.

1. Clause 13.02-1S specifies strategies in the categories of:
   1. Protection of human life;
   2. Bushfire hazard identification and assessment;
   3. Settlement planning;
   4. Areas of biodiversity conservation value;
   5. Use and development control in a Bushfire Prone Area ('BPA').
2. Under 'Policy guidelines' it states:

• Any applicable approved state, regional and municipal fire prevention plan.

• AS 3959-2009 Construction of Buildings in Bushfire-prone Areas (Standards Australia, 2009)
• Buildings in bushfire-prone areas - CSIRO & Standards Australia (SAA HB36-1993, 1993)
• Any bushfire prone area map prepared under the Building Act 1993 or regulations made under that Act

1. The following policy in the Scheme was referred to during this case:
   1. Clause 02.01 'Context';
   2. Clause 02.02 'Vision';
   3. Clause 02.03-1 'Settlement';
   4. Clause 02.03-2 'Environmental and landscape values';
   5. Clause 02.03-3 'Environmental risks and amenity';
   6. Clause 02.03-4 'Natural resource management';
   7. Clause 02.03-5 'Built environment and heritage';
   8. Clause 02.03-6 'Housing';
   9. Clause 02.03-7 'Economic development';
   10. Clause 02.04 'Strategic framework plans'; and
   11. Clause 13.01-1S 'Natural hazards and climate change'.
2. Whilst the Strategic Framework Plan, reproduced below, is depicted at a high level, the applicant accepts (through its expert witness, Mr Crowder) that the Land is shown as being within an area of 'high-very high quality agricultural land'. However, the applicant relies on the evidence of its expert Mr Gallienne, who says the land has 'low' agricultural value. We discuss this in more detail under key issues below.

Figure 8: Strategic Framework Plan - Source: Scheme

1. We have referenced and considered sections 60(1) & (1A) of the Planning Act and 65.01 of the Scheme as and where relevant, noting that sections 60(1) and (1A) of the Act set out matters that a responsible authority 'must' consider along with those that it 'may' consider in making a decision.
2. Finally, we have taken into account clause 71.02-3 'Integrated decision making' of the Scheme, which includes the following content:

The Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making. Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.

(Tribunal emphasis)

IS THE PROPOSED USE AND DEVELOPMENT FOR A CAMPING AND CARAVAN PARK AN ACCEPTABLE OUTCOME IN THE FZ?

What permissions are required and what have we found?

1. In assessing relevant permissions, we address the following questions:
   1. Is this camping and caravan park proposal supported in the FZ?
   2. Is the proposal acceptable in terms of its impact on the road network and will it provide satisfactory road access?
   3. Will the proposed development and use result in any unacceptable offsite amenity impacts?
2. The applicant relies on the findings of the Tribunal in Clifftop 2021, contending that these should be given weight in terms of the matters now under consideration.
3. We address the weight that we give to the Tribunal's findings in Clifftop 2021 in consideration of each of these questions.
4. In summary, we find that permission could be granted under the FZ to use and develop the Land for the proposal because we find that:
   1. The proposed use for a camping and caravan park is not a prohibited use in the FZ having regard to the provisions and policies of the Scheme;
   2. The proposal will not result in an unacceptable permanent loss of high quality agricultural land;
   3. The proposal is acceptable in terms of its impact on the road network and there is satisfactory road access (subject to construction requirements by permit condition) provided to the Land; and
   4. The proposal will not have any unacceptable off-site amenity impacts, subject to appropriate permit conditions.

Is this camping and caravan park proposal supported in the FZ?

1. This question addresses two main issues:
   1. What is sought by the FZ and relevant planning policy in the Scheme; and
   2. The agricultural capability of the Land, as relevant to what is sought by the FZ and relevant planning policy in the Scheme.
2. The first issue considers the purpose of the FZ and the policy in the Scheme regarding FZ land and which is applicable to the Land given its location in Elevated Plains.
3. The purposes of the FZ focus on retaining productive agricultural land, providing for the ongoing use of land for agriculture and ensuring that non‑agricultural uses do not adversely affect the use of land for agriculture. We note another purpose is to encourage the retention of employment and population to support rural communities.
4. We acknowledge there are potentially competing objectives in the Scheme between seeking to encourage tourism related uses and employment opportunities, and, seeking to protect agricultural land.
5. The applicant called Mr Crowder to provide town planning expert evidence with respect to the first issue.
6. The second issue considers the agricultural capability of the Land.
7. The Strategic Framework Plan in the Scheme shows the Land as being within an area of 'high-very high quality agricultural land', mapping which is accepted by Mr Crowder.
8. However, this high-level classification has now been 'ground-truthed' by the agronomy expert witnesses in this case: Mr Gallienne for the applicant and Mr James Sewell for the respondent Ms Sheard.
9. We note other respondents support the evidence of Mr Sewell.
10. The two experts held a conclave and areas of agreement and disagreement were identified.
11. The experts agree on:
    1. the soil test results that were taken by Mr Sewell;
    2. that fertiliser could be applied to the Land; and
    3. that a significant limitation to a 'stand-alone' grazing enterprise use of the Land is the overall scale of the Land and total number of stock it could maintain throughout the year, and that even if used as a high-value livestock, stud or horse agistment enterprise, as a stand-alone farm business, this would not be a financially viable venture.
12. On all other matters, the experts disagreed, noting there were some qualifications to the above matters of agreement.

Weight given to relevant findings in Clifftop 2021

1. The Tribunal in Clifftop 2021 found that the proposal was generally compatible with the policies for agriculture and the objectives of the FZ, for several reasons. In saying this, that Tribunal acknowledged the requirement in the Scheme to prioritise the protection of human life over all other policy considerations, and it was ultimately that assessment that led to the refusal of the proposal in Clifftop 2021.
2. In terms of the proposal's response to the FZ and policy in the Scheme, we find that there have been no material changes to the Land or to the surrounding land since Clifftop 2021. This includes no significant material changes to the proposal, other than the introduction of the SIP Building in response to the Tribunal's concerns regarding bushfire risk.
3. Mr Crowder is the same expert witness who gave evidence in Clifftop 2021. We do not have any other expert planning witness giving contrary evidence on this topic in this case. We accept Mr Crowder's evidence as relevant to this matter.
4. The Tribunal in Clifftop 2021 also had before it the expert agronomy evidence of Mr Gallienne. That Tribunal found Mr Gallienne's evidence that the Land is not of high agricultural quality to be persuasive, taking into account his assessment of the soil type, pasture, and slope.
5. We give weight to the Tribunal's findings on this issue in Clifftop 2021. However, whilst Mr Gallienne and Mr Crowder are the same expert witnesses who gave evidence in Clifftop 2021, we also now have the benefit of the expert agronomy evidence of Mr Sewell. As such, this affects the extent of weight that we give to the Tribunal's findings in Clifftop 2021 in our assessment of the revised proposal.
6. We now address the parties' submissions, including the evidence and our findings on these questions.

1. The applicant characterises the proposed use as a Camping and Caravan Park as defined in clause 73.03 of the Scheme, being:

Land used to allow accommodation in caravans, cabins, tents or the like.

1. This use also falls within the wider land use term 'Accommodation' expressed in the Scheme.
2. The applicant also relies on policy settings that note the importance of tourism to the Shire. We acknowledge that tourism is the largest employer in the municipality and that it is the second largest industry in the municipality after manufacturing.
3. Mr Crowder relied on the evidence that he gave in Clifftop 2021. He referred to the repeat appeal principles and how this influenced his evidence. Mr Crowder also referred to the evidence of other experts, as well as the findings of the Tribunal in Clifftop 2021.
4. Mr Crowder referred to matters that were previously found to be acceptable by the Tribunal in Clifftop 2021 and which, in his opinion, remain acceptable. This included the concept of glamping being supported by policies pertaining to tourism in the Scheme and the proposal being generally compatible with policies for agriculture and the objectives of the FZ. He noted the Land is not in a larger context of farming properties, with most nearby properties primarily used for rural living lifestyle purposes.
5. In summary, Mr Crowder's evidence was:
   1. The Scheme seeks to protect agriculture over the long term from permanent sterilisation. Mr Crowder does not think that the proposal permanently sterilises the Land.
   2. The proposal will facilitate land use outcomes consistent with the broad directions in the Scheme.
   3. Even if the Land was 'high quality' agricultural land, this doesn't mean that it cannot have non-agricultural uses on it.
   4. The Land is in a discrete and somewhat isolated pocket of rural land and includes surrounding small lot sizes.
   5. The Land is in an area where there are dwellings predominantly of rural lifestyle land use (while acknowledging there is some small scale agriculture present).
   6. As a land use, glamping is low scale, low key, and low impact. It is not permanent accommodation.
   7. A benefit of this proposal is the provision of tourism accommodation without removing existing dwelling houses from Hepburn.
   8. The proposal will be acceptable on land management grounds, noting the proposed earthworks are not excessive and will not detract from the landscape character of the area.
   9. The proposal will enhance the tourist offer of the locale, with associated economic and employment benefits.
6. The Council cross-examined Mr Crowder in relation to whether the proposal meets the Scheme objectives and the direction to prioritise the protection of human life over all other policy considerations.
7. Mr Crowder deferred to the expert evidence of Mr Allan regarding bushfire risk. However, Mr Crowder also considers bushfire risk policy settings in the Scheme do not amount to a 'prohibition' of the proposal. That is, development can still be located in certain areas so long as there is a reduction of bushfire risk to an appropriate level. According to Mr Crowder, what the Tribunal needs to look at is what the applicant is doing to mitigate that risk to an appropriate level.
8. Mr Crowder was also asked questions by respondents that related to the practicality and convenience of access between the car park area and the accommodation units. It was Mr Crowder's evidence that if a person chooses to stay at this facility, they should be prepared to move around the site as required/directed. If access is inconvenient to people, the facility will stop being used and this goes to the commercial viability of the proposal; he considered this does not make it a bad town planning outcome.
9. Mr Crowder agreed that the proposal has no direct nexus to agriculture.
10. Mr Crowder was also asked whether the proposal protects agricultural land. In response, he acknowledged that land which potentially could be used for agriculture, could also be used for a different purpose. Mr Crowder considered that the nature of the proposal did not prevent future use of the Land for agricultural pursuits. Nor did he think that the proposal would compromise agricultural land beyond the site.
11. Beyond cross-examining Mr Crowder, the Council did not make specific submissions regarding this issue. The CFA also did not make submissions regarding this matter.
12. Mr Crowder deferred to the expert evidence of Mr Gallienne in terms of the agricultural capability rating of the Land.
13. Mr Gallienne visited the Land on 2 February 2021, 12 September 2022, 12 April 2022 and 5 September 2023, which is a useful spread across different seasons and different years. Whilst he did not visit the Land in July, this was not a problem because in his view, little would be happening on the ground at that time of year.
14. Mr Gallienne concluded that the Land is predominantly Class 5 (Very low) according to the five agricultural classes in the Rural Mapping Guide.[20] However, Mr Gallienne identified the Land contains a very small area (approximately 0.9 hectares) near the south-east corner that could fit the Class 4 (Low) classification. He noted this 0.9 hectare area contained some 'reddening colouration' of the soil (a 'soil association') but Mr Gallienne says this is not like the 'Trentham' red soils.
15. The agricultural classes are summarised in the following table contained in Mr Gallienne's evidence, which is the classification method that was used in the EnPlan report that underpinned Amendment C80:[21]

Table 1: Agricultural Quality Classes - Source: Rural Mapping Guide 1982

1. In summary, Mr Gallienne's evidence concluded the following.
   1. There was no substantial evidence of farmed livestock having been on the property, whereas there was 'faecal evidence' of kangaroos, wombats, and rabbits, whilst he saw deer and fox.
   2. He observed no evidence of pasture improvement on the Land and noted ground cover consisting of natural grasses such as rye grass along with thistle and blackberry weeds. During his recent site inspection he observed a few legumes (white clover and subterranean clover), which he says confirms the results of Mr Sewell's soil tests. He says a feature of the ground cover is the very open appearance of the Land, which he estimated to be between 25% and 90%.
   3. He concluded the constraints for the Land include:
      1. Slope steepness, to the north and the east;
      2. Rocky and shallow soils;
      3. High erosion susceptibility; and
      4. Poor drainage in some areas.
   4. It would be extremely difficult to establish pasture on the Land (i.e. plough/cultivate the Land for crop production or sow for pasture) and to maintain it due to the rocky surface, the slopes, climate, stock grazing pressure and the potential damage to machinery;
   5. He says in its current condition, the annual pasture production is estimated to be 1.4 tonne of dry matter/hectare, which is extremely low. In its current condition, Mr Gallienne estimates the carrying capacity of the Land is likely to be 0.2 to 0.4 dry sheep equivalent ('DSE')/hectare/year,[22] which he says is an extremely low stocking rate. The primary input to DSE is the productivity of the pasture on the Land, it would need to be a species that could cope with a short growing season and low rainfall. Given observations made during his site inspections in spring, when 50% of pasture growth occurs, he says that the current grasses are not performing well, likely due to low nutrient levels in the shallow soils;
   6. Direct seeding of the ground would be difficult due to the shallow soils and extent of rock underneath;
   7. This would necessitate supplementary feeding (e.g. hay, silage, grain) to be imported for stock.
   8. There is an area of approximately 4 hectares that is available for cropping or for pasture for grazing, which is not of sufficient size to be fenced into a number of paddocks. He disagrees with Mr Sewell's estimation there is approximately 6.5 hectares available for stock on the Land, stating that Mr Sewell must have taken into account parts of the site to the north that contain steep slope.
   9. In Mr Gallienne's view, the Land could never build up to the 16 DSE asserted by Mr Sewell. In Mr Gallienne's estimation, animals on the Land might have one or two days' worth of feed in the pasture growing on the Land and then they would be reliant on feed being brought in. This would have implications for the ground because once stripped of pasture, the animals' hoofs will trample the ground and damage it. The animals would need to be removed from the Land and the Land reseeded, which might need to occur two or three times per year;
   10. The very high rates of application of superphosphorous/superphosphate suggested by Mr Sewell are of concern to Mr Gallienne due to the potential for runoff from the Land and the creation of algal blooms, especially in light of the Land's location in a special water supply catchment. Further, Mr Gallienne does not think that the suggested three year fertiliser application period will be sufficient and, in his view, would be costly. Similarly, Mr Gallienne does not think that the three year application of lime to the soil suggested by Mr Sewell to neutralise the acidic soil will be sufficient, although Mr Gallienne does not hold concerns regarding potential environmental ramifications of such application;
   11. Mr Gallienne does not agree with Mr Sewell that the species present on the Land (such as capeweed) are indicative of the soils being of high agricultural ranking. Rather, he says the capeweed might be on the Land because of seeds being brought onto the Land from birds or animals. In any event, the capeweed that Mr Gallienne observed on the Land was not flourishing, given its pale green colour, indicating low nitrogen levels, and it being in a rosette, rather than fully formed, stage;
   12. He accepts the Land could be used for berry orchards but says this would be on a hobby scale and there might not be much fruit produced. He considers the shape of the Land, its orientation and presence of tall trees to the north, which overshadow the Land, affects its ability to grow grapes. He does not think that the soil suits other fruit trees. He accepts the Land could be used to grow olives but only as a hobby farm, not as a commercial enterprise; and
   13. If the Land was not used and developed for the proposal, it would be better to revegetate the Land to hold the structure of the soil together and not run animals on it at all.

1. Beyond cross-examining Mr Crowder, the Council did not make specific submissions regarding the first or second issue.

1. The CFA did not make submissions regarding either the first or the second issue.

1. The respondents hold the view the Land has agricultural value and say Mr Gallienne has understated that value.
2. The respondent Ms Sheard relies on the evidence of Mr Sewell. We were advised that Mr Sewell operates a farming enterprise proximate to the Land. In his experience as a farming operator, he agreed there is a trend towards the utilisation of smaller land holdings in the area, either alone or in conjunction with other properties.
3. Mr Sewell inspected the Land on 30 September 2022.
4. We note Mr Sewell's classification of the Land was based on a 'unique' classification system. However, he was not able to refer the Tribunal to a publication that was used to inform this system. Mr Sewell cannot recall any instances where he has used the table used by Mr Gallienne.
5. In summary, Mr Sewell's evidence was based on firstly identifying the mix of soil types of the Land from a visual inspection and then undertaking soil testing (25 boreholes were taken across the site, up to 10cm in depth to represent the topsoil). The results showed:
   1. low pH, meaning the soil is highly acidic;
   2. organic carbon well above the desired range, where high organic carbon is a key indicator of overall soil health;
   3. low nitrogen (as nitrate), which he expected;
   4. phosphorus below the desired range, which can be addressed by the application of superphosphate;
   5. high potassium, which is within the recommended adequate range for grazing pastures;
   6. aluminium well above the acceptable range, which will limit some pasture or plant growth but can be addressed through the application of lime;
   7. no issue with soil salinity or soil sodicity; and
   8. yellow-red mottled clay subsoil.
6. Based on this assessment Mr Sewell says the Land should be classified as 'high agricultural quality' land based on the following:
   1. The topsoil across the relevant grassland area is generally consistent with adequate groundcover and pasture-plant composition to support both a continual low-input grazing or an improved pasture production system as part of a high-input grazing enterprise;
   2. Soil test results indicates there are no issues with key limiting chemical inhibitors such as soil salinity or sodicity;
   3. Key chemical components that are deficient and limit production (specifically pH, nitrogen, and phosphorus) can be easily ameliorated through application of various fertilisers and soil management within a short time frame through use of organic or inorganic fertilisers; and
   4. The existing species he identified across the grassland indicate high productivity value (e.g. subterranean clover). He also says the presence of high fertility weeds such as capeweed is an indicator of high quality soil.
7. Mr Sewell considers there are a range of classes of livestock (including cattle and sheep) that could graze on the Land. He estimates the Land has the potential capacity of 16 DSE given the soil type, rainfall, and growing season. He agreed that calculation assumed there would be supplementary feed provided to sustain the stocking rate, given factors such as the seasonality of rainfall.
8. Mr Sewell considers there could be a range of enterprises that could be operated on the land, including artisan enterprises, although he accepts that the Land is not suitable for cropping. He considers the slope of the Land would not be a limitation for olive growing.
9. He considers the Land 'could be high agricultural quality land' with the application of fertilisers and agreed that broadacre farming also has a heavy reliance on fertiliser. He does not think that the land is suitable for broadacre farming.
10. He considered the Land could supplement a large livestock enterprise but acknowledged there were none adjacent to the Land. He accepted this type of enterprise would involve the cost of trucking animals to the Land. However he considered this would not necessarily need a 'truck' but could be undertaken using a tandem trailer and a stock crate.
11. Mr Sewell did not agree the Land would have a 'low grading' if he assessed it on the same classification system as Mr Gallienne.

1. Having heard the parties' submissions and the expert evidence, we make the following findings.
2. Given that neither expert opines that the Land could sustain a commercially viable stand-alone grazing operation, be it high‑value livestock, stud, or a horse agistment, we accept that the options narrow to:
   1. use of the Land in conjunction with another grazing property;
   2. for cropping; or
   3. for use as a hobby farm.
3. Both experts agree that the Land is rocky, noting there appears to be disagreement as to the extent of underlying rock. Nevertheless, we accept and observed the presence of rock on and under the Land and consider this is a constraint on the ability of the Land to establish meaningful pasture. However, we find that this does not make the Land unusable for agricultural activity.
4. Neither expert opines that the whole of the Land would be available/suitable for cropping or grazing. We find that the actual productive area may range from Mr Gallienne's estimate of 4 hectares, up to Mr Sewell's estimate of 6.5 hectares. However, we are concerned if Mr Sewell's estimate includes steeply sloped areas.
5. We were assisted by the soil testing undertaken by Mr Sewell and agree that this is an important part of determining the agricultural capability of a site. In saying this, we accept the reasons given by Mr Gallienne as to why he did not complete a soil sample. We note that Mr Gallienne accepted the soil test results obtained from Mr Sewell's testing.
6. We also accept that the deficiency in phosphorus and high soil acidity can be addressed through the application of substances such as superphosphate. However, we hold concerns regarding the potential environmental impacts of the application of ongoing quantities of superphosphate to the Land in the Cairn Curran Catchment over a relatively long period of time (three years). We note Mr Gallienne's evidence that three years is unlikely to be sufficient to address the deficiency of the Land to the extent sought.
7. We also accept Mr Gallienne's evidence that several factors in addition to soil properties, contribute to determining the agricultural productivity of Land. We find that additional factors such as soil depth, rocks, rainfall, slope, and the associated potential for erosion, are not easily corrected, if they can be corrected at all.
8. We agree with Mr Gallienne and Mr Sewell that importing feed to the Land might supplement the amount of feed and stock carrying capacity that can be produced by the Land.
9. Nevertheless, there is a marked difference between Mr Gallienne's calculation of 0.2 to 0.4 DSE/hectare/year and Mr Sewell's calculation of 16 DSE/hectare/year. However, as Mr Sewell accepted that his calculation assumes feed being brought onto the Land and given our comments above, we do not consider 16 DSE/hectare/year is a realistic calculation without improving the Land through fertiliser application.
10. While Mr Gallienne and Mr Sewell each estimated a growing season of 7 months, we understood Mr Sewell's evidence to be that the growing season could be longer. Based on this, we find the growing season for the Land is in the order of 7 months but accept that it might be longer.
11. Given the current nutrient deficiencies in the soil, the extent of relatively shallow soils, the extent of rock across the Land, the likely extent of productive area available and the steep slopes in other parts of the Land, we agree with Mr Gallienne and hold reservations regarding the productive agricultural capacity of the Land in its present state/condition. That is, without treating the soil with additional fertiliser.
12. Based on our comments above, we find the current state of the Land demonstrates low agricultural quality attributes. Even if the DSE/hectare/year was slightly higher, the low agricultural quality category is stated to have low to average productivity of 6-8 DSE/hectare/year.
13. We also acknowledge that Mr Sewell's system for assessing agricultural productivity is different to Mr Gallienne's. We understand Mr Sewell to have devised his own measures which is based on his observations, soil tests and farming experience in this area.
14. For the purposes of our assessment we prefer to have the evidence assessed against a known measuring system. In any event, we understood Mr Sewells' evidence to be that even if he assessed the Land using the same measuring system as Mr Gallienne, he would still assess the Land as being of high agricultural productivity. For the reasons given above, we do not accept this proposition.
15. Accordingly, while the Strategic Framework Plan in the Scheme shows the Land is identified within an area of 'high-very high quality agricultural land', we find for the reasons above, the Land is more accurately defined in its current state as having 'low agricultural' productivity.
16. We also acknowledge the concerns raised by Mr Gallienne as to the amount of expenditure that would be needed to make the Land profitable for grazing purposes in the absence of fertiliser treatments. We consider the low carrying capacity of the Land makes this a less appealing or viable proposition, as the financial benefit might not justify the outlay.
17. We accept that the Land could be used for some limited form of cropping. We also accept the evidence of Mr Gallienne regarding the constraint posed by the orientation of the Land and potential overshadowing by the tall trees to the north.
18. Having found that the Land is not high quality agricultural land, we conclude that the use and development of the Land for a camping and caravan park will not result in an unacceptable permanent loss of high quality agricultural land.
19. We disagree that the proposal would result in permanent loss of the Land from agricultural uses. To this end, we accept the evidence of Mr Crowder that the nature of the proposal before us does not prevent future use of the Land for agricultural pursuits. We say this because unlike subdivision of a site, under the proposal the Land will remain in one title and will not be divided in a way that could compromise its ability to be used in the future. Further, given the nature of the built form proposed, we find that the development will have a lighter impact upon the Land, should there come a time when the use is discontinued.
20. With respect to aspirations of the FZ and planning policy of the Scheme other than those that focus on agriculture, we accept the evidence of Mr Crowder that the proposal will provide positive social and economic benefits to the area through supporting tourism. Further, as the tourist accommodation is being provided in purpose-built camping and caravan structures, it is not removing dwelling houses that could be used for permanent accommodation from the municipality.
21. For the reasons explained above, we find the proposal will not adversely impact the FZ purposes and supporting policy provisions that apply to the Land. Rather, we find that in the circumstances, this camping and caravan park proposal can be supported in the FZ, subject to permit conditions.

Is the proposal acceptable in terms of its impact on the road network and there being satisfactory road access provided to the Land?

Weight given to relevant findings in Clifftop 2021

1. The adequacy of safe and efficient access to and within the Land for firefighting purposes in the event of a bushfire will be dealt with in the section of this decision that addresses bushfire risk and the permission required under the BMO.
2. Whilst traffic and car parking are separate issues, we note that the parking rate table in clause 52.06 does not specify a parking rate for the proposed land use. Rather, car parking must be provided to the satisfaction of the responsible authority. Given that the Council is satisfied with the car parking provided by the proposal, the adequacy of car parking provision is not before us in this proceeding. In any event, we note that Mr Gnanakone expects the proposed use will require a total of 12 parking spaces, which he says have been appropriately provided on the Land.
3. The Tribunal in Clifftop 2021 was satisfied regarding access to the Land and the suitability of the intersection of Charlies Road and Hepburn‑Newstead Road to accommodate additional traffic from the proposal.[23]
4. We note there have been no significant material changes to the Land (or to the surrounding land) since Clifftop 2021, including what is sought regarding access and road network conditions to the Land. Mr Gnanakone is the same expert witness who gave evidence in Clifftop 2021. We do not have any other traffic expert witness providing evidence in this case.
5. For these reasons, we give great weight to the Tribunal's findings on this issue in Clifftop 2021, noting we are essentially dealing with existing road conditions.
6. In saying this, the question remains before us to decide. We therefore address the parties' submissions, including evidence from Mr Gnanakone, and provide our findings below.

1. The applicant relies on the expert evidence of Mr Gnanakone. Mr Gnanakone notes there is no change to the traffic aspects of the proposal that were positively considered by the Tribunal in Clifftop 2021.
2. Mr Gnanakone observes that:
   1. the Land currently gains informal access via a gravel track within the Charlies Road reservation; and
   2. Charlies Road is a local rural standard road of varying width, typically between 5.0m and 6.0m, reducing in some sections to approximately 3.0m or 4.0m.
3. In summary, Mr Gnanakone's evidence concludes:
   1. In some sections, Charlies Road provides one lane of travel. However, there are sufficient informal passing areas provided throughout its length from the Land to the intersection with Hepburn-Newstead Road;
   2. Charlies Road has a winding and undulating alignment and is steep in parts, noting there are two blind crests within its approximate 1.4km length. However, the gravel construction and constrained width in parts of Charlies Road results in traffic moving at lower speeds along its length;
   3. The road surface in Charlies Road was in good condition and he had no difficulty accessing the Land in a standard passenger vehicle. Charlies Road is carrying about 70 vehicles per day;
   4. Hepburn-Newstead Road is a local road aligned generally north‑south, servicing motorists between Hepburn Springs and Franklinford. The following traffic conditions exist:
      • The intersection of Charlies Road and Hepburn‑Newstead Road is controlled with a stop sign facing Charlies Road;
      • A crest on Hepburn-Newstead Road adjacent to Charlies Road limits visibility to and from drivers approaching from the south;
      • A convex mirror has been installed opposite Charlies Road to assist with visibility to motorists approaching from the south;
      • A posted speed limit of 60km/hr applies south of Charlies Road, increasing to 80km/hr to the north;
      • An advisory speed limit of 40km/hr applies to Hepburn-Newstead Road on the southern approach to Charlies Road due to the crest and winding nature of the road;
   5. Traffic surveys indicate a significant bias to the south for movements to and from Charlies Road. Further, the data suggests that traffic volumes on each road are quite low. Peak hour volumes at the intersection are also modest, with generally 30-40 vehicles travelling along Hepburn‑Newstead Road in each direction, and no greater than 8 movements to/from Charlies Road in any hour;
   6. There have been no recorded incidents in the vicinity of the Land within the last five years of published data;[24]
   7. He estimates additional traffic generated by the proposal will be approximately 37 vehicle movements per day. His evidence is based on 59 traffic movements per day when the proposed facility is fully booked. Mr Gnanakone considers this higher estimate is 'particularly conservative';
   8. While acknowledging there are some localised points towards the eastern end of Charlies Road where passing will not be possible due to carriageway width, he considers the low speeds will enable one vehicle to safely move to the side while another passes. He is satisfied this is a 'common arrangement and outcome on many rural road networks';
   9. Mr Gnanakone does not expect the check-out phase of campers to result in a significant level of movements over and above what he has already projected. There will be ample gaps in road capacity to accommodate generated traffic from the proposal without impacts to queues or delays for other motorists;
   10. Regarding water truck deliveries, Mr Gnanakone estimates that on-site water tanks will need to be refilled on average twice a week. In his view, this will generate a 'very low level' of related traffic; and
   11. Regarding pedestrian movement around the paths proposed to service the tents and caravans, a grade of 1:10 is 'perfectly acceptable' for people to walk from their car to accommodation facilities. However, he conceded the gradient to the side of some pathways might be greater than 1:10, in part due to site cuttings.
4. On balance, Mr Gnanakone is satisfied that estimated traffic volumes generated by the proposal are low and do not require upgrades to the existing Charlies Road cross-section, or to the intersection of Charlies Road with Hepburn‑Newstead Road. He notes the Council's engineering department did not raise any concerns in relation to road safety concerns, apart from requiring the construction of the extension of Charlies Road to service the Land.
5. Mr Gnanakone is satisfied that if the maximum vehicles per day on Charlies Road equated to 12 movements per hour (or one movement every five minutes), this would still be low in 'traffic engineering terms' given the rural setting of Charlies Road he has described in his evidence statement.

1. The Council did not make specific submissions regarding this matter.
2. The Council did submit that any setback requirements, or enlarged septic fields sought by GMW for effluent disposal fields on-site, must not interfere with the CFA's requirements for 'suitable fire vehicle access to all yurts and domes'.
3. The Council also questioned Mr Gnanakone with respect to the imposition of a permit condition regarding an obligation on the applicant to maintain Charlies Road and upgrade the entrance to the Land.

1. The CFA did not make submissions regarding this matter. However, in its closing submission the CFA raised concerns with an existing power pole (see August 2023 plans) that requires relocation to ensure sufficient and the need for safe turning area for its trucks on site.
2. The CFA also expressed an 'implicit requirement' to ensure its proposed conditions regarding fire truck access and firefighting capacity were not adversely impacted or compromised.

1. The respondents raised ongoing concerns regarding the challenging slope and conditions of Charlies Road. They submit these conditions would be encountered by campers who would be unfamiliar with these types of rural road conditions. They say this will be exacerbated during emergency conditions should a bushfire risk arise. Ms Sheard also raised specific concerns regarding the condition and necessary requirements to improve the proposed access to the Land from Charlies Road.
2. Ms Sheard also submitted a need to upgrade the entranced point condition from Charlies Road onto the Land. The applicant proposes to upgrade Charlies Road from the entrance to 143 Charlies Road to the entrance to the subject site to a 4 metre gravel road in accordance with condition 17 of the Council's circulated draft conditions.

1. We accept Mr Gnanakone's evidence. We are satisfied there will be acceptable road access provided to the Land for the purposes of the proposed use and development. We are also satisfied there will be acceptable traffic impacts on the road network because of the proposal.
2. While we observed the two blind crests noted by Mr Gnanakone, we make our findings on the basis that we are dealing with existing conditions along Charlies Road and its intersection with Hepburn-Newstead Road. This was also a view accepted by the Tribunal in Clifftop 2021.
3. In reaching these findings, we have also considered the traffic assessments undertaken by the Council's engineering department. The Council and the CFA have not contested the traffic evidence and conclusions of Mr Gnanakone.
4. We accept Mr Gnanakone's evidence that the existing traffic volume on Charlies Road is relatively low. We are also satisfied, based on Mr Gnanakone's traffic assessment, that the proposal would not contribute significantly to change this situation resulting an unacceptable planning outcome.
5. While acknowledging the existing conditions of Charlies Road contain some narrower and challenging sections, we accept Mr Gnanakone's evidence there is some opportunity in Charlies Road for a car to safely prop and wait to allow an oncoming vehicle to pass. We also acknowledge that the construction condition of Charlies Road within an undulating topography supports Mr Gnanakone's opinion that Charlies Road is a lower-speed, rural road environment.
6. We agree with Mr Gnanakone that the physical traffic conditions described above will contribute to vehicles slowing. While we confirmed there are narrower sections of road width and some blind crests to be negotiated in Charlies Road, we have not been persuaded these conditions will lead to unsatisfactory vehicle access, noting that it will be a slow vehicle environment.
7. We acknowledge submissions from the respondents that the conditions of the intersection of Charlies Road and Hepburn‑Newstead Road have resulted in a lower advisory speed limit being sign-posted and the installation of a convex mirror opposite Charlies Road, to assist motorists approaching the intersection from the south.
8. Based on Mr Gnanakone's estimated number of vehicle movements generated by the proposal, we find that the additional traffic arising from the proposal on this existing intersection, will not result in unacceptable or unsafe traffic conditions.
9. We also accept Mr Gnanakone's evidence that larger vehicles required to deliver water and other supplies to the Land can be adequately catered for in the existing road network. We say this given the relatively low number of trips estimated per week by Mr Gnanakone for these types of vehicles. Additionally, if a vehicle is required to visit the Land to remove effluent from potential tank overflows, similarly we find that this could be accommodated in the existing road network.
10. We note Mr Gnanakone also assessed the proposed access to the site for fire trucks. Mr Gnanakone is of the opinion the proposed turnaround area on‑site (10.0 metre diameter fire truck turning circle) is appropriate. He is satisfied this area is of sufficient size, diameter and design to enable fire truck movement and access to various points on the site to address fire outbreaks. He notes the CFA have not raised concerns regarding access for their firefighting vehicles.
11. While we accept Mr Gnanakone's assessment and conclusions, we also note there were some uncertainties expressed by the CFA in its closing submission, particularly stressing the importance of ensuring the truck vehicle turnaround area should not be impeded by larger septic disposal fields or the like. The Council expressed similar concerns in its closing submission.
12. We agree with the Council that any setback requirements or enlarged septic fields sought by GMW for effluent disposal fields on-site must not interfere with the CFA's requirements for 'suitable fire vehicle access to all yurts and domes'. However, we do not consider this issue is fatal to the proposal. We are satisfied these concerns can be appropriately addressed through permit conditions. We have included specific conditions to achieve this.
13. We are satisfied that the Planning Act provides appropriate recourse to address any non‑compliance (should this arise) with the CFA's permit conditions. This is not a basis upon which the Tribunal would refuse this proposal.
14. We are satisfied that the applicant's proposed upgrades to access the Land are appropriate, as explained to the Tribunal in its closing submission. This includes accepting that the management of the upgraded section of Charlies Road will pass to the Council upon satisfactory completion of the road works. Subject to the proposed permit conditions, we are satisfied the proposal will result in a satisfactory planning outcome regarding traffic access to the Land.

Will the proposed development and use result in any unacceptable offsite amenity impacts?

Weight given to relevant findings in Clifftop 2021

1. This question considers the external amenity impacts of the proposed use and development, such as through the emission of noise, light and through the visual amenity impact of views of the Land.
2. The Tribunal in Clifftop 2021 found that the proposal would be an acceptable response in terms of rural amenity. This was subject to reassessment of the caravans' exterior finish to prevent visual impacts from reflectivity of the highly polished aluminium surface. We note the applicant has addressed this requirement in this proposal.
3. That Tribunal also held that agricultural activities on Mr Considine's land and the proposed construction of Charlies Road were not issues of concern.[25] At paragraph 25, the Tribunal recommended that yurts 1 and 2 be orientated so that they did not face Mr Considine's land. We note the plans now show this orientation.
4. Specific offsite amenity impacts were also addressed at paragraphs 82‑87 of Clifftop 2021. The applicant summarised these in its written submission as follows:
   • The proposal was an acceptable response to the landscape subject to the caravans being non-reflective;
   • The proposal would not impact significantly on the view from Mr Whitehead's dwelling;
   • The amenity of Mr Considine's property would not be adversely affected;
   • Patron behaviour and noise would be adequately addressed by the proposed operations management plan.[26]
5. We do not have any other expert witness providing further or contrary planning evidence in this case.
6. In terms of offsite amenity impacts, we find that there have been no material changes to the Land (or to the surrounds) since Clifftop 2021.
7. For these reasons, we give weight to the Tribunal's findings on this issue in Clifftop 2021.
8. In saying this, the question remains before us to decide. To this end, we now address the parties' submissions, including the evidence before us, and our findings on this question.

1. The applicant submits that the proposal will not have any unacceptable offsite amenity impacts. The applicant relies on the expert evidence of Mr Crowder and also Mr Gnanakone.
2. In summary, Mr Crowder's evidence was:
   1. The proposal will meet the Scheme's strategic ambition to provide and support tourism enterprises.
   2. Due to the proposal being in a FZ there should be tempered residential amenity expectations.
   3. The significant distances (approximately 200 metres) between the development on the Land and the neighbouring properties, along with the size, height and spacing of the accommodation and its dulled/muted tones, the topography and the intervening vegetation ensures that there will not be any unacceptable detrimental amenity impacts arising from the proposal.
   4. While views of the development will be available from outside the site, this in and of itself, does not result in a detrimental amenity impact.
   5. The accommodation designs are simple and appropriate for the glamping-style accommodation proposed, while camping-type structures are not foreign elements in rural areas;
   6. Any light spill associated with the proposal will be a general glow, rather than direct lights pointing at surrounding properties.
3. It was Mr Gnanakone's evidence that while the proposal would generate additional visitors to the Land, traffic volumes and vehicle speeds are likely to be low. It is his opinion this low flow of traffic and movement will not result in adverse traffic flows and volumes and noise to and from the Land.

1. The Council did not make submissions regarding this matter.

1. The CFA did not make specific submissions regarding these matters, noting that it cross‑examined Mr Gnanakone as to the safe and efficient operation of the intersection of Charlies Road and Hepburn Newstead Road during fire conditions.

1. The respondents raised amenity concerns in relation to water quality and drainage (particularly impacts from waste water) in the Cairn Curran Catchment, short and long term occupancy within a caravan and camping environment, social and noise effects (from campers/visitors arriving, residing and leaving the Land), patron behaviour and management and light spill into a rural setting.

1. We agree with Mr Crowder that due to the Land being located in the FZ, residents should have tempered amenity expectations.
2. We agree with Mr Crowder's evidence. We say this based on the evidence before us and having regard to the distance between the proposed use and development and the neighbouring properties, along with the size, height and spacing of the accommodation and its dulled/muted tones, the topography and the intervening vegetation.
3. We accept there will be visible lighting arising from the security and pathway delineation on the Land. However, given the distances to other residences, we are satisfied the suitable baffling of this lighting through permit condition will achieve an appropriate planning outcome.
4. We note commentary by the Tribunal in Clifftop 2021 to these matters. At paragraphs 82-87 of that Tribunal's decision, it said:
   • The proposal would not impact significantly on the view from Mr Whitehead's dwelling;[27]
   • The amenity of Mr Considine's property would not be adversely affected;[28]
   • Patron behaviour and noise would be adequately addressed by the proposed operations management plan.[29]
5. We were not presented with any changed circumstances from the parties that persuade us to a contrary view to these matters. Nor did we observe any changed conditions that would alter this view.
6. To the extent that there are aspects of the patrons' use of the Land that requires ongoing management, we find that this is addressed by separate legislation.
7. We find that the management plan is the appropriate mechanism to address issues such as social and noise impacts and patron behaviour, noting this was also the conclusion and finding of the Tribunal in Clifftop 2021.
8. Regarding impacts from light spill arising from security or pathway lighting on the Land, as well as the lighting of business signage, we find that these are matters that can be appropriately addressed and managed through permit conditions.
9. For the reasons stated above and subject to the proposed conditions included in the appendix to this decision, we find the proposed development and use will not result in any unacceptable impacts on the amenity of the area, or adversely impact the agricultural operations of adjoining properties.

DOES THE PROPOSED DEVELOPMENT AND USE APPROPRIATELY PROTECT THE WATER QUALITY IN THE CAIRN CURRAN CATCHMENT?

What permission is required and what have we found?

1. A permit is required under the ESO1 to construct a building not connected to reticulated sewerage and to undertake a site cut that exceeds a depth of 1.0 metre.
2. Whilst permission is required for both of these matters, it was the proposed wastewater treatment system that dominated discussion.
3. The 'Statement of environmental significance' for the ESO1 goes to the risk posed by the cumulative impacts of development within the catchment, both to the quality of water and its potential impact on human health and any community relying on that water, as well as to the quantity of water in the special water supply catchment. Clause 1.0 of Schedule 1 provides that:

...The protection, restoration and enhancement of all waterways (as defined by section 3 of the Water Act 1989) within the catchment is an essential component in ensuring the continued availability of water quantity and quality while also protecting the health of the natural resources and environmental systems within the catchment.

The management of land within the catchment must:

• Focus on the long term protection of the natural resources and environmental systems.
• Encourage the implementation of appropriate measures to eliminate detrimental impacts on the quality and quantity water.

1. The 'Environmental objective to be achieved' is stated as:

To ensure all development is undertaken in a manner that protects, restores and enhances natural resources and environmental systems and seeks to eliminate detrimental impacts on the quality and quantity of water in the catchment, to ensure the long term plentiful supply of quality water.[30]

1. In assessing the required permissions, we need to consider (as appropriate) the Statement of environmental significance and the environmental objective outlined above.
2. The Decision Guidelines at clause 5.0 of the ESO1 Schedule also highlight consideration of:
   • The proximity of the development to waterways, drainage lines and water supply reservoirs in the catchment.
   • The possible impact and effect of the development on the quantity and quality of water in waterways, drainage lines, water supply reservoirs and springs.
   • The need and measures to:
     • Provide buffers for or separation from waterways, drainage lines, gullies, property boundaries and any existing disposal areas or systems.
     • Minimise and reduce nutrient loads, turbidity and siltation in waterways, drainage lines and water supply reservoirs.
     • Decrease or reduce the velocity of stormwater into waterways, drainage lines and water supply reservoirs.
     • Prevent erosion of natural features, including banks, streambeds and adjoining land.
     • Improve filtration and infiltration of water.
     • Retain and increase native vegetation to prevent or limit adverse effects on waterways, drainage lines and water supply reservoirs.
   • The means of treatment and disposal of all sewage, sullage, stormwater and other wastes on site which is consistent with a geotechnical report or land capability report having regard to the slope, soil type and other environmental factors including the potential for pollution of waterways and ground water.
3. The parties also referred to the Environment Protection Authority Code of Practice Onsite Wastewater Management ('Code of Practice'),[31] which is a document that has been written to support the onsite wastewater industry, regulators and premises owners and which 'provides standards and guidance to ensure the management of onsite wastewater (up to 5000 L/day) protects public health and the environment, and uses resources efficiently'.[32]
4. The Code of Practice is the Victorian guideline for best practice management of onsite wastewater systems and is referred to in the State Environment Protection Policy - Waters of Victoria.[33] Compliance with the Code of Practice is not mandatory.
5. For the reasons set out below, we have found that the proposed development and use will appropriately protect the water quality in the Cairn Curran Catchment, through the location of the on-site wastewater treatment system and its capacity, and, the location of site works.

Weight given to relevant findings in Clifftop 2021

1. Mr John Lawrey provided expert evidence on wastewater engineering matters in Clifftop 2021. In that proceeding, that Tribunal referred to Mr Lawry's evidence, noting a revised location for the treatment of wastewater on the site was required. However, that Tribunal highlighted this was not fatal to the proposal and would require an amended plan as a condition on any permit that may issue.
2. We also note that Tribunal was satisfied that the proposed wastewater treatment areas were sufficiently removed from an existing dam on the adjoining property to the south. We are satisfied this situation remains 'in situ' and it is not necessary to make any further findings. It was not a matter that was agitated in the proceeding before us.
3. The Clifftop 2021 Tribunal also acknowledged an issue regarding the location of pedestrian pathways in relation to the proposed dispersal field. However, it also concluded this could be addressed through permit conditions.
4. In terms of wastewater, we now find that the proposal that was before the Tribunal in Clifftop 2021 and that which is now before us, is a different proposition.
5. We also have expert hydrology evidence from Mr Paul Williams, which was not before the previous Tribunal. The respondent, Ms Sheard, relies on the evidence of Mr Williams. Other respondents also provided detailed submissions regarding ongoing catchment quality threats that could arise from the proposal.
6. Whilst we note the Land, the surrounding land and the Scheme provisions have not changed in a material way, it is the change to the layout and physical attributes of the new proposal and the evidence before us that affects the weight that we give to the previous Tribunal's satisfaction with the proposal then before it. In saying this, we still give some weight to the Tribunal's findings on this issue in Clifftop 2021.
7. However, we need to consider is the difference in opinion between the experts regarding the proposed size of the LAA and the additional need for a 'reserve' LAA. The reason this is important relates to the impact the LAA may have on the capacity and functionality of the proposed fire vehicle turning area proposed on site. We note Mr Lawrey supports a smaller 1,200 square metres LAA without the need for a reserve area, while Mr Williams supports a larger 1,600 square metres LAA and a further 480 square metres of reserve area. The latter impacts the current proposed layout of the LAA and fire truck turning areas on the Land.
8. We address the parties' submissions, including the evidence before us, and our findings on this question below.

Expert conclave - areas of agreement and disagreement

1. The experts held a conclave and areas of agreement and disagreement were identified. We note the experts agreed on the following:
   • The Land is in a Special Water Supply Catchment (Cairn Curran Catchment);
   • Water balance assessment as set out in the Municipal Association of Victoria ('MAV') framework is the recognised model for Land Capability Assessments ('LCA');
   • An applicable buffer to surface waters in an open potable water supply catchment is 100 metres and this applies to the Cairn Curran Catchment;
   • A waterway setback of 100 metres is required in open potable water supply catchments and can be reduced to 50 metres by the relevant council. Mr Williams agrees with Mr Lawrey (in part) but says GMW must also agree to any reduction in the setback. That is, it was agreed that waterway setback and variations are possible through council/GMW approval;
   • Application of gypsum is required to promote 'best' soil structure for permeability to be tested by qualified consultants. The experts do not agree on the quantum/cost of applying gypsum to achieve appropriate level of permeability for best practice wastewater soil dispersal.
2. Mr Williams also does not raise any issue with the proposed treatment system recommended by Mr Lawrey, which is that an appropriate wastewater treatment system comprises a 'Taylex' advanced blower system comprising one 3,000 litre dual alternating pump station, one Taylex 10,000 litre septic primary tank, one 10,000 litre balance tank and two ABS units.
3. However, areas of disagreement included:
   • Method and results associated with Dispersion Testing;
   • Design Irrigation Rates ('DIR');
   • Differences between results using mean rainfall and 90th percentile rainfall;
   • Classification of soils, where Mr Williams says if any replicate for the modified Emerson aggregate test exhibits any dispersion (that is, a positive result) then it shall be considered 'dispersive', and the soil shall be categorized as 'Category 6', whereas Mr Lawrey does not agree and says the soil should not be categorised as dispersive;
   • The quantity of gypsum required for the irrigation field/network, DIR and water balance;
   • The required size of the LAA, being the area of land required on the site to dispose of wastewater, where one of the contributing factors to the required size of a LAA is the volume of wastewater that will be generated from a proposed use and development; and
   • The required size of the reserve area to the LAA and its location on the Land.
4. It was also Mr Lawrey's evidence that if the disposal of the effluent generated by the proposal is to be treated to a 20:30 standard (a figure supported by Mr Williams), then the LAA must be sized to receive 2,000 litres per day.
5. We note a useful table provided by the applicant sought to explain the factors and differences considered by the respective experts in their calculations of the proposed LAA. This is provided below.

Table 2: Comparative LAA Calculation factors used by wastewater experts

Source: Applicant's written submission dated 18 September 2023

1. A key difference in this table is the use of 'mean rainfall' by Mr Lawrey and '90th percentile rainfall' used by Mr Williams.

1. In support of the proposal from a wastewater perspective, the applicant submits as follows.
2. The Taylex system will ensure the total volume of wastewater produced by the proposal will be treated to a 20:30 standard. This is acknowledged and supported by Mr Williams.
3. The total peak daily wastewater flow estimates between the two experts are similar (Mr Lawrey adopted 3,000 litres per day while Mr Williams adopted 3,180 litres per day). Both Mr Lawrey and Mr Williams adopted the same irrigation dispersion rate of 2,000 litres per day for the LAA. However, the applicant notes that Mr Williams subsequently changed his original required LAA estimate from 1,600 square metres up to 2,550 square metres, including an additional reserve area of 480 square metres LAA to be identified for 'future use'.
4. The applicant notes this change has arisen in the way Mr Williams has interpreted the GMW condition 36 as set out in its referral response. Particularly noting the dispersal figure rate was therefore required 'to be based on the total peak daily wastewater flow into the treatment system of 3,180 litres per day.'
5. The applicant says that Mr Williams has not based this change on best practice wastewater design set out in EPA publication 891.4, or in accordance with the MAV Land Capability Framework, or with Standard AS/NZ 1547:2021. It says this change in Mr Williams evidence should be considered and weighted in the context of the GMW referral response that supported the proposal subject to conditions.[34]
6. The applicant submits Mr Williams' original 1,600 square metres LAA estimate, with a further reserve area of 480 square metres, should be considered as Mr Williams' 'final' opinion and view on this matter. Also noting Mr Williams' response in evidence and cross examination that there would be 'sufficient area' on the Land to accommodate these additional LAA's.
7. The applicant also notes that Mr Lawrey considers a reserve LAA could be provided by the installation of new sub-surface dispersal lines within the 1.0 metre spacing provided between the designed lines of the main LAA. Alternatively, an additional balance tank associated with the Taylex system could also be provided to address this issue.
8. The applicant says that while it should not be the function of this Tribunal to interpret GMW's condition 36 and a reserve LAA is not required on the Land, it would accept a condition that the LAA must be not less than 1,600 square metres, be located to the satisfaction of GMW, together with the identification of a separate reserve LAA to the satisfaction of that authority.
9. In conclusion, the applicant notes the decision on the final detail of the wastewater system will ultimately rest with the Council's Environmental Health Officer and GMW.
10. The applicant says that the applicable 100 metre buffer to surface waters has been achieved. Also noting that the relevant North Central Catchment Management Authority ('NCCMA') provided a certificate dated 1 August 2022,[35] identifying that there is not a designated waterway within 100 metre of the proposed LAA on the Land. This letter shows the designated waterway as follows (red line):

1. The respondents assert that the 100 metre buffer is not met because the sewerage pipes and pits associated with the caravans are within 100 metres from the waterway, whereas these also need to be more than 100 metres from the waterway on the basis that they are part of the treatment system.
2. Mr Lawrey describes the sewerage pipes and pits associated with the caravans as comprising concrete tanks set into the ground and two branch sewerage pipes that discharge into the tank, with this part of the system sized to accommodate several days' effluent if there was a breakdown. The pumps in that part of the system are there to pump the effluent to the gravity lines.
3. In this setting, the applicant asserts that the sewerage pipes and pits associated with the caravans do not need to be set back 100 metres from the designated waterway because they are not part of the treatment system. It is only the treatment system that is required to be set back that distance under the Code of Practice. Mr Lawrey agrees that it is the treatment system that needs to be set back from the waterway. The applicant submits that the treatment system begins at the inlet to the treatment system, whereas the pipes, wells and pumps of the reticulation system do not form part of the treatment system; the pipes and pit are simply the parts of the system that get the effluent to the treatment system.
4. The applicant submits that if the Tribunal does not agree with its interpretation of the Code of Practice in this respect, this is not a reason to refuse the proposal, but rather, the proposal could be approved without the four caravans.

1. The Council did not make specific submissions to this matter in its initial statement of grounds, focusing its attention on bushfire-landscape risk matters.
2. However, in its supplementary submission addressing the meaning and interpretation of the conditions imposed by GMW in its conditional consent to the planning permit application dated 7 October 2021, the Council advised it supported the concerns raised by CFA at paragraph 17a-h of its supplementary submission. Namely, the wastewater disposal area required by GMW is to be kept free of pedestrian access, stock, buildings, driveways, recreational use, and service trenching. The Council considers achieving this outcome may be challenging and problematic on the Land.
3. Additionally, the Council raised concerns that 'implementation of GMW setback measures will also interfere with achievement of the CFA's requirements for suitable fire vehicle access to all yurts and domes as required by the CFA's draft permit condition 29.' These concerns were reiterated in the council's right of reply and arise from what the Council submits, is a potential 'lack of space on the land' to achieve both referral requirements of the CFA and GMW.

1. The CFA agrees with the proposition that it is not a matter for the Tribunal to consider or assess whether a referral authority's conditions can be achieved for the proposal on the site. Instead, the Tribunal is required to form a view whether the proposal is acceptable.[36]
2. This includes consideration of referral authority comments and recommendations, amongst other relevant matters, it is required to consider under the Scheme and Planning Act.
3. Regarding the need to assess the 'protection of human life from fire risk under the Scheme,' the CFA submits it retains concerns regarding additional waste disposal alternatives and an increased LAA if 'full occupancy' is required by the GMW conditions for waste disposal on the subject Land. This concern relates to the possibility of layout amendments required to the proposed fire truck turning area on the site.
4. The CFA is also concerned that Mr Allan's fire risk assessment has not considered the scenario 'if a greater LAA is required for the treatment of wastewater on the subject Land. The CFA therefore concludes:

While CFA has stated that it does not object to the proposal subject to conditions, CFA has concerns about the uncertainties and unknowns in the detail of the application in its present form which are unresolved and which appear to have a direct bearing on whether the level of risk to human life from bushfire is acceptable.[37]

1. We note that respondents generally relied on and supported the expert witness statement and further oral evidence provided by Mr Williams on behalf of Ms Sheard. We have discussed and outlined key evidence of Mr Williams and Mr Lawrey above.
2. The following is provided as a summary of the respondents' key submissions to this matter, noting it is not meant to be an exhaustive summary related to each respondent. Nevertheless, we have considered these submissions and the expert evidence statements in full, including responses to cross‑examination from the respective experts as part of our assessment.
3. In his supplementary submission to the proposed GMW conditions regarding wastewater treatment, Mr Whitehead submits the GMW conditions are 'clear and unambiguous'. He says the conditions require a wastewater treatment system that must be designed with 100% water volume calculations, the disposal field must be kept clear and a reserve LAA must be provided and shown on the site.
4. The Raubers submit that the applicant has incorrectly analysed and estimated a smaller disposal field than required by GMW referral conditions. They say there should be two disposal fields provided on site, each with a 'minimum' LAA. They say the applicant has understated the water usage of occupants on the Land, noting 25 litres used for proposed baths in the accommodation units 'is not credible'. They say that weight should be given to the location of the Land in the Cairn Curran Water Supply Catchment area and an appropriately sized LAA should be provided based on 'full occupancy' of the Land.
5. Mr Stockfeld agrees with the Raubers and says that any wastewater management system must be based on full occupancy of the proposal, using a 'precautionary' principle given the location of the Land in a potable water supply catchment area.[38] He says this assessment and solution must include the provision of an appropriately sized reserve LAA, should the primary disposal field fail.
6. Ms Whitehead has raised similar concerns. Stating that 'when it comes to wastewater, it is submitted that use as a Camping and Caravan Park is virtually the same as use as a Dwelling, when the Caravan Park provides permanently situated buildings - dwellings that meet the requirements of the Planning Scheme's definition, as they do in this application.'
7. Ms Whitehead also considers that Ministerial Guidelines addressing 'Planning permit applications in open, potable water supply catchment areas,' should be applied to the proposal as a planning permit is triggered for the proposal under the ESO1.[39]
8. As per Mr Williams' evidence, testing of the soil indicates to him conclusively that the soils are dispersive. In terms of the effect of this on wastewater management, the worst case scenario is that there is structural breakdown in the soils, soil permeability is decreased and irrigation water applied to the soil is not absorbed into the ground, but rather, the effluent gathers on the top of the soil. The way to counter structural breakdown is to apply ameliorative actions to the soil, such as the strategic application of gypsum.
9. Mr Williams' evidence is that the soils are category 6 soils, where the maximum irrigation rate/day cannot exceed 2mm/day (before you factor in climatic conditions, such as rainfall).
10. Mr Williams' evidence is that in an open potable catchment such as this, where public health is at stake, it is best practice to use the 9th decile rainfall, as opposed to the mean rainfall.
11. In terms of the required size of the original LAA, Mr Williams' initial evidence was that 1,600 square metres was required. Mr Williams then revised this amount to 2,550 square metres. The Tribunal's receipt of the revised evidence was the subject of an earlier (interim) decision in this proceeding,[40] in which we described the circumstances surrounding Mr Williams' change in evidence.[41]
12. To the extent that GMW's position is that the system needs to be designed to accommodate 100% of the peak capacity, Mr Williams thinks this is unreasonable and does not agree with it.
13. In terms of the reserve area, Mr Williams acknowledges that the Code of Practice does not require a reserve area be provided because this system is a secondary treated effluent land application system and, pursuant to section 3.7.2 of the Code of Practice, a reserve area is not required. This is in contrast to a primary treated effluent land application system, which must be allocated a reserve area under the Code of Practice.[42]
14. Mr Williams says that when public health is at stake (as it is here, given the open potable catchment), there needs to be a 'plan B'; that is, the provision of a reserve area, in the event of a failure in the LAA.
15. Mr Williams thinks that the reserve area needs to be an area that is separated from the LAA area. This is because if there is a failure in the LAA that warrants the use of the reserve area, this will likely be a structural breakdown of the soil (for instance, because insufficient ameliorants have been applied) and the soil is unable to absorb more effluent. The provision of a separate reserve area then enables the wastewater to be redirected to the separate area while the original area is managed. Mr Williams does not think that the reserve area needs to be of equivalent area to the original LAA but that an area approximately 30% of the main LAA would be reasonable; 480 square metres is 30% of 1,600 square metres.
16. In Mr Williams' opinion, Mr Lawry's proposal for the reserve area to be located in between the lines of the original LAA area only caters for the failure in the LAA being a burst pipe.
17. Mr Williams considers that the system designed by Mr Lawry will sufficiently store the peak daily flow into the system from use of the accommodation units. Mr Williams agrees with Mr Lawry that the design for the septic system should be for 3,000 litres/day, which requires a permit from the council and not an EPA licence, and then the wastewater should be discharged onto the LAA at a rate of 2,000 litres/day. Mr Williams agrees that Mr Lawry's system provides adequate storage tanks.
18. As to the management of the LAA, Mr Williams says that this needs to be a dedicated area with enough protections (such as fencing) to prevent unnecessary pedestrian traffic and all vehicle traffic, noting that pedestrian movement over the LAA can damage pipes and can also lead to ponding and surface expression of effluent, which is a health hazard.
19. Ms Sheard also referred the Tribunal to a recent Tribunal decision that considered the level of risk within an open potable water supply catchment.[43]
20. Ms Sheard agrees with the other respondents that the design of the wastewater treatment and disposal system must be based on full occupancy of the proposed Camping and Caravan proposal. Ms Sheard submits this requires 'the disposal area is calculated for a minimum land application area that is determined on a full water balance analysis using the formula of Volume/DIR.' Based on this Ms Sheard submits the minimum required LAA should be set at 2,550 square metres and that required setback areas from the waste disposal area should be further defined and established before the proposal can be adequately assessed. Ms Sheard also submits that based on the GMW conditions, a reserve area is also required for the proposal.

1. At the outset, we are mindful of the Land's location in the ESO1 and a special water supply catchment. As such, we agree that a measured and careful approach should be taken.
2. Having heard the submissions and evidence, we make the following findings regarding the wastewater management system:
   1. The buffer distance between the wastewater management system and the designated waterway is acceptable and achieved having regard to the objectives and decision guidelines of the ESO1 and the Code of Practice;
   2. The LAA will need to measure at least 1,600 square metres, with this area to be approved by GMW and possibly increased depending on GMW's interpretation of its condition 36 and whether this will require a larger LAA;
   3. The reserve area will need to measure at least 480 square metres, being 30% of 1,600 square metres, with this area to be approved by GMW and possibly increased if GMW requires a larger LAA;
   4. The reserve area will need to be in a separate location to the LAA and not in between the effluent lines in the LAA; and
   5. The LAA will need to be fenced to restrict access across the LAA.
3. We explain our reasons for these findings below.
4. First, we find that the waterway setbacks required under the Scheme have been satisfied by the proposal. We say this having regard to the NCCMA certificate dated 1 August 2022 showing the location of the designated waterway, which is well in excess of 100 metres from the LAA when other material including the plans is taken into account.
5. As to the issue regarding the setback of the caravans, we find that the sewerage pipes and pits associated with the caravans are not required to be set back 100 metres from the designated waterway. We say this because pursuant to Table 5 'Setback distances for primary and secondary treatment plants and effluent disposal/irrigation areas in sewered and unsewered areas (where applicable)', it is only in relation to a primary sewerage and greywater system and a secondary sewerage and greywater system that there must be a setback of 100 metres for surface waters up-slope of waterways (potable water supply).
6. The Code of Practice defines the primary treatment of wastewater as meaning:[44]

Primary treatment of wastewater: the physical processes of screening, filtration, sedimentation, flocculation and flotation to remove organic and inorganic matter from wastewater.

1. The Code of Practice defines secondary treatment as meaning:[45]

Secondary treatment: biological and/or physical treatment following primary treatment of wastewater. Disinfection to kill pathogens may also occur.

1. Having regard to these definitions, we understand that the focus is on the 'treatment' of the wastewater contents: its screening, filtration, flocculation, flotation to remove organic and inorganic matter, followed by biological and/or physical treatment and possibly disinfection to kill pathogens.
2. In order for the sewerage pipes and pits associated with the caravans to be required to be set back 100 metres from the designated waterway, it would need to be found that the sewerage pipes and pits associated with the caravans constitute an active and working part of either a primary sewerage and greywater system or a secondary sewerage and greywater system.
3. Section 1.7 of the Code of Practice deals with the legal framework that was in place when the Code of Practice was drafted. This included the Environment Protection Act 1970 (Vic), which has now been repealed.
4. Section 1.7 of the Code of Practice refers to the 'onsite wastewater management system', referred to as a 'septic tank system' in that legislation, as including:

...both the onsite wastewater treatment system and the subsequent dispersal/recycling system, as well as the associated components (e.g. pipes, fittings, land area, etc.). This means both the treatment system and the dispersal/recycling system are defined by the legislation as a 'septic tank system'. However, the term 'septic tank', as commonly used in the water industry, only refers to a basic primary treatment tank which uses anaerobic microbes and physical settling processes to treat and clarify wastewater. Therefore, in any communication it is important to clearly distinguish which of the two meanings is intended.

1. Given this was the legislative framework under which the Code of Practice was drafted, and this is what is described in section 1.7 of the Code of Practice, this is instructive in the interpretation of what is meant by primary treatment and secondary treatment.
2. As can be seen, the 'septic tank system' is referred to as comprising the onsite wastewater treatment system and the subsequent dispersal/recycling system, as well as the associated pipes, fittings and land area.
3. Mr Lawrey's wastewater site plan,[46] reproduced below, shows the caravans as being provided with sewerage pipes and pits that are then connected to the sewerage pipes and pits that service the domes via a pressurised line. The sewerage pipes for the domes are then connected to primary tank, balance tank and two aeration plants, collectively termed the 'treatment plant' in the wastewater site plan legend, at which point the contents is then transferred to the LAA via another pressurised line.

Figure 10: Lawrey's wastewater site plan - Source: Lawrey evidence statement

1. In the context of the secondary treatment system designed by Mr Lawry, we find that the septic tank system comprises the 'treatment plant' components and the LAA. We say this because it is these parts of the system that are involved in the treatment of the effluent.
2. By contrast, the sewerage pipes and pits for the caravans are not involved in the treatment of the effluent. Rather, those sewerage pipes and pits merely facilitate the movement of the wastewater contents to where it will be treated in these ways; that is, the 'treatment plant'.
3. Accordingly, we find that the sewerage pipes and pits for the caravans are neither a primary nor a secondary sewerage and greywater system for the purposes of the Code of Practice and the 100 metre setback from the waterway.
4. This interpretation is supported by the expert evidence, where neither expert suggests otherwise.
5. Second, in terms of the size of the LAA, we prefer Mr Williams' estimate to Mr Lawrey. We say this because we find that Mr Williams' approach to be a measured response to the Land's location in a potable water catchment, where we find a more conservative approach is required in order to protect human health. As such, we prefer Mr Williams' utilisation of the 9th decile rainfall figures in his calculations, having regard to his evidence that the soils are highly dispersive.
6. Third, in terms of the reserve area, we prefer Mr Williams' approach that the reserve area is located separate from the LAA. We say this because we find that this approach better supports the purpose of having the reserve area, being to provide an additional area to absorb wastewater when the original LAA needs to be rested or managed. We say this having regard to the evidence before us as well as the definition of 'reserve area' in the Code of Practice, being:[47]

Reserve area: a duplicate land disposal area reserved for use when the original land disposal area needs to be rested.

1. Whilst we accept that 'duplicate' in effect means a reproduction of the original, we are also mindful of the expert evidence of Mr Williams that a reserve area that is 30% of the LAA would be reasonable in the circumstances. Ultimately, this will need to be to the satisfaction of the relevant authority.
2. We acknowledge that the respondents' submissions that the water consumption by the proposal is likely to be greater than has been estimated by either expert and, as such, the overall wastewater produced each day will be greater than allowed for by either Mr Lawrey or Mr Williams. This includes the use of the baths.
3. In this respect, we note the evidence of both experts that the storage capacity of the system is sufficient and if greater storage is required, this could be accommodated. However, this will not change the discharge rate of 2,000 litres/day into the LAA. As such, even if the respondents' submissions are correct, this does not mean that the wastewater system will fail.
4. At this point we also note that we have not agreed with submissions that the proposed use as a Camping and Caravan Park is 'virtually the same as use as a Dwelling'. It is not. Dwellings must satisfy the requirements of the Scheme's definition.
5. For the reasons we have stated above, we have accepted submissions from the applicant that the proposal does not fall within the definition of Dwelling and is therefore not subject to the requirements of a Dwelling regarding wastewater requirements. We therefore find application of the Ministerial Guidelines for potable water supply catchment areas is of limited assistance in our consideration of this matter.
6. While we accept Mr Williams subsequently changed his original LAA estimate from 1,600 square metres up to 2,550 square metres, including an additional reserve area of 480 square metres LAA to be identified for 'future use,' we have been persuaded his original waste disposal area estimates remain valid. We say this noting legitimate concerns raised by Mr Williams (supported by submissions from respondents) that estimated water use by the proposal and its occupants may be understated in some areas and the effects of 90th percentile/9th decile rainfall compared to mean rainfall requires further assessment in the context of the existing physical conditions of the site. This includes consideration of slope and differing soil conditions observed by agricultural experts across the Land.
7. We note that GMW has included a condition regarding the performance of the wastewater system. We are satisfied with the condition proposed by GMW, noting the parties had differing opinions regarding the interpretation of that condition. We agree that the interpretation of the GMW condition is a matter for GMW. Nevertheless, we are satisfied that the evidence regarding the proposed system, including the potential need for additional absorption area on the Land, can be accommodated to an acceptable level and is appropriately addressed through the GMW condition.
8. We support the evidence from the relevant experts that the dedicated fire truck turning area will be required to be free from any significant structures or formal accessways (pedestrian and vehicular) that may impede the manoeuvrability and access capacity of this turning area by fire trucks. Nevertheless, for the reasons stated above, we find this can also be satisfactorily addressed and managed through permit conditions.
9. Finally, we agree with Mr Williams' evidence that the LAA needs to be free from other activities that would impinge upon the efficient operation of the disposal or dispersal area. To this end, we agree with Mr Williams that the LAA should be fenced to prevent vehicular and unnecessary pedestrian movement in this area and also support the provision of signage to this effect.
10. As to the second permission required under the ESO1, we find that the location of the site works associated with the proposed buildings and works (including pathways) are of sufficient distance from the designated waterway to ensure that any runoff from those areas is unlikely to adversely impact the quality and condition of the water within the catchment. Nevertheless, it would be appropriate for a condition to be included in the permit to ensure that these works are to the satisfaction of the Council and the relevant authority.

IS THE POTENTIAL RISK FROM BUSHFIRE REDUCED TO AN ACCEPTABLE LEVEL?

What permission is required and what have we found?

1. Planning permission is required under the BMO to construct a building and to carry out works associated with accommodation.
2. In answering the question of law, the Tribunal's order dated 1 March 2023 dealt in some detail with bushfire risk and how it is assessed under the Scheme. We will not repeat this content but note that our assessment of this question is undertaken using the BMO and clause 53.02 of the Scheme in conjunction with relevant planning policy in the Scheme including clause 13.02-1S.
3. The Tribunal in Clifftop 2021 refused the proposal on the basis of its response to bushfire risk, finding that the bushfire risk in the application had not been reduced to a level that warranted it proceeding in that form. The Tribunal's primary concern was the use of private underground bunkers as bushfire shelters.
4. The proposal before us is different to what was before the Tribunal in Clifftop 2021 because it now includes the SIP Building rather than private underground bushfire bunkers. We also have more information before us in this proceeding, in light of the additional matters that have been raised and questions that have been asked of Mr Allan, who also provided expert bushfire evidence in Clifftop 2021.
5. The physical and planning context of the Land has not changed in any meaningful way but the different proposal that is before us along with the additional information (including evidence) affects the weight that we give to the Tribunal's findings in Clifftop 2021 regarding bushfire.
6. Having regard to the matters set out below, we find that the potential risk to persons and property from bushfire will be reduced to an acceptable level due to the inclusion of the SIP Building and the additional closure of the proposed operation on High FDR days.
7. We have also found that the use is properly characterised as a camping and caravan park under other relevant legislation that governs the management of moveable dwellings, which we address first and as a separate question, below.
8. We now address the parties' submissions, including the evidence before us, and our findings on the main question.

Characterisation of the use as a camping and caravan park and its regulation under other legislation

1. The applicant submits that when considering whether or not the risk to life, property and community infrastructure from bushfire has been reduced to an acceptable level, it is relevant to consider, in addition to clause 53.02, the nature of this proposal as a camping and caravan park and the specific fire safety regulatory regime that applies.
2. To this end, the applicant accepts that the accommodation facility will be required to be registered under the Residential Tenancies Act 1997 (Vic) ('RTA'), in accordance with Part 2 of the Residential Tenancies (Caravan Parks and Movable Dwellings Registration Standards) Regulations 2020 (Vic) ('RT Regulations').
3. The applicant submits that the proposal falls within the definition of 'caravan park' contained in section 3 of the RTA, which refers to land on which 'movable dwellings' are situated. This is because the accommodation units are 'movable dwellings', noting that:
   1. a 'moveable dwelling' is defined in section 3 of the RTA to mean 'a dwelling that is designed to be movable, but does not include a dwelling that cannot be situated at and removed from a place within 24 hours'; and
   2. the definition of 'dwelling' in section 3 of the RTA is broader than in the Scheme and means 'any structure that is designed to be used for human habitation and that is capable of being so used...'; and
   3. according to the installer,[48] the accommodation units are 'temporary structures which can be assembled and disassembled within 24 hours and can be relocated as needed'.
4. Accordingly, the applicant submits that Part 14 'Regulation of Caravan Parks and Movable Dwellings' of the RTA applies to the proposal.
5. The applicant submits that through the operation of parts of the Building Regulations 2018 (Vic) and the Building Code of Australia, the requirements that apply to buildings including the requirement to achieve specified BALs do not apply to caravan parks.[49]
6. Instead, Division 3A of Part 14 of the RTA applies, setting out fire safety and emergency management procedures applicable to caravan parks. This division deals with matters such as provision of firefighting equipment, space around movable dwellings and adjacent structures and emergency procedures.
7. The applicant refers to Part 3 'Standards' of the RT Regulations that requires compliance with the CFA Caravan Park Fire Safety Guideline ('CFA Guidelines').[50] The CFA Guidelines also regulate matters such as firefighting equipment, the provision of sufficient space for firefighter access and fire separation between and around movable dwellings and the preparation of an emergency management plan.
8. In this setting, the applicant submits that the proposal complies with the CFA Guidelines.
9. We note that some respondents raised concerns regarding the characterisation of the proposal as a camping and caravan park, including whether fire protection and 'defendable space' (BAL ratings) are required for such proposals in a BMO setting. Ms Whitehead made detailed submissions on this matter and gave further oral submission at the invitation of the Tribunal.[51]
10. A key concern and view of the respondents was that the 'yurts and domes' associated with the proposed accommodation were not 'movable dwellings' and therefore required a BAL rating under the Building Act 1993 (Vic).
11. However, we find the proposal is appropriately defined and satisfies the use definition of camping and caravan park at clause 73.03 of the Scheme. We find that the proposal also satisfies the definition of caravan park in section 3 of the RTA, for the reasons that were given by the applicant.
12. We also agree with the Tribunal's comments in Clifftop 2021, where that Tribunal observed the accommodation units would not be a 'place of shelter' in the event of a bushfire.
13. As the proposal falls within the definition of a caravan park, then it must as a consequence be registered as a caravan park and the relevant provisions of the respective legislation that applies to a camping and caravan park will apply.
14. We agree with the applicant that in this policy setting, relevant BAL ratings sought under the Building Act 1993 (Vic) would not apply to this proposal in the manner submitted by the respondents.
15. As a consequence of the above, given the nature of the use and development proposed, there is a specific, separate fire safety regulatory regime that applies, governed outside of the Planning Act and the Scheme. This fact provides us with comfort that the appropriate entities will oversee the operation of the facility in accordance with standards that are appropriate for the type of use and development that is taking place.

Parties' submissions on whether the potential risk to persons and property from bushfire can be reduced to an acceptable level

1. The applicant submits that the proposal now before the Tribunal addresses the Tribunal's concerns with respect to the provision of a bushfire shelter on the Land through the inclusion of the SIP Building, which the applicant says addresses the disadvantages identified by the Tribunal with the previous proposal.
2. The applicant notes that the utilisation of the SIP Building is to the satisfaction of the CFA.
3. The applicant refers to the layers of resilience built into the proposal, which will minimise the risk associated with having persons on the Land at various times. These layers comprise:
   1. the Land will not be open on days that have an FDR of Catastrophic or Extreme. The applicant notes, by way of comparison, that Parks Victoria only requires state forests to close and campers to leave on days when the FDR is Catastrophic;[52]
   2. the Land will not be open on days that have a Total Fire Ban classification;
   3. when the FDR is High but not a day of Total Fire Ban, a fire warden employed by the applicant will be present on the Land from 9am to midnight each day, although the applicant is prepared to increase this to 24 hours a day in these circumstances. On days of high FDR, staff will also be on-site from 9am to 6pm; and
   4. the system of managing people on site, whereby:
      1. when the Land is occupied and there is a fire between 5 and 10km from the Land or an advice warning has been issued by the CFA, the fire warden will decide either to evacuate or to stay;
      2. when the Land is occupied and there is a fire between 3 and 5km from the Land, guests will be directed to evacuate the Land either to the north or to the south, depending on the fire location; and
      3. when the Land is occupied and there is a fire within 3km of the Land or if a watch and act or emergency warning notification is issued for Elevated Plains, Hepburn or Hepburn Springs, guests will be directed to stay in the SIP Building until the danger has passed. The SIP Building enables sheltering in place in a building that is built to an enhanced BAL-29 level, meaning that in effect its rating exceeds BAL-29.
4. The applicant submits that the defendable space provided for the SIP Building is consistent with what was agreed by the expert witnesses in Clifftop 2021. Further, the applicant also relies on the part of the Land that is within the area of cultural heritage sensitivity as being able to be maintained as 'outer defendable space'.
5. The applicant refers to the BMO along with clauses 53.02 and 13.02-1S of the Scheme and made submissions regarding the proposal's compliance with clause 53.02. The applicant submits that, in essence, clause 53.02 contains a series of requirements by which the Tribunal is able to assess whether the bushfire risk can be reduced to an acceptable level under the Scheme.
6. In summary, the applicant submits that having regard to the provisions of the Scheme, the risk to life and property as a consequence of the proposal has been reduced to an acceptable level through the combination of the SIP Building, closing the Land on certain FDR days and Total Fire Ban days, providing defendable space and the procedures set out in the BEMP.

1. The applicant relies on the expert evidence of Mr Allan as well as the following documents:
   1. the Bushfire Hazard Site Assessment;
   2. the Bushfire Hazard Landscape Assessment;
   3. the Bushfire Management Statement;
   4. the Bushfire Management Plan ('BMP'); and
   5. the Bushfire Emergency Management Plan ('BEMP').
2. Mr Allan visited the Land in 2021 and 2022.
3. Mr Allan says that the Scheme supports the adoption of a 'precautionary approach' to bushfire risk. The majority of the strategies in clause 13.02‑1S of the Scheme are directed at settlement planning and therefore are not applicable to assessment of the proposal, although he acknowledges that aspects of the policy are applicable.
4. In Mr Allan's view, in BMO areas there will always be a bushfire risk; what you need to ask is whether it is a tolerable, acceptable level of risk. Other than in one case[53] that was factually different, Mr Allan cannot recall another instance where he has said that the level of risk associated with the application was not acceptable or tolerable.
5. Mr Allan supports the CFA conditions.
6. We provide a detailed summary of Mr Allan's evidence below.
7. The information contained in the material and evidence before us:
   1. Acknowledges the hazardous location of the Land, as contributed to by features of the Land itself as well as the nature and management of its surrounds;
   2. Explains how the Land can be managed so that the proposal responds to and satisfies the relevant objectives of clause 53.02 of the Scheme; and
   3. Provides detail regarding the emergency management arrangements that are to be put in place for the proposal, including:
      1. the information available to patrons when booking;
      2. distance triggers for bushfire occurring in surrounding areas and how this impacts upon occupation of the Land;
      3. the presence and utilisation of the SIP Building;
      4. the presence of a fire warden on site at certain times;
      5. the access from the accommodation units to the SIP Building; and
      6. other measures in place to prevent a fire from being started on the Land, or to minimise ignition sources on the Land.
8. We acknowledge that the extent of cross-examination of Mr Allan and the breadth of the issues canvassed is different to what was before the Tribunal in Clifftop 2021.
9. In terms of the Bushfire Hazard Site Assessment, Mr Allan's evidence was as follows:
   1. treed vegetation to the north, northwest and east of the Land, best accords with the Forest group, noting that he considers a Forest classification to be somewhat conservative given the nature of much of the vegetation;
   2. discussions with the applicant, WestVic heritage consultants and Dja Dja Wurrung representatives, have confirmed that vegetation in the area of cultural heritage sensitivity can be slashed and/or mown during the fire danger period and will, therefore, be in a low threat state. It is therefore proposed that all of the area of cultural heritage sensitivity, except for within 30 metres of the eastern waterway and northern site boundary, will be managed as 'Outer Zone' defendable space;
   3. open areas of vegetation to the south and west of the Land, where remnant tree canopy cover does not exceed 10%, has been classified as Grassland, notwithstanding that this includes the horticultural/orchard area to the west of the Land and so may be able to be considered low threat;
   4. the topography on and around the site within the 150 metres assessment zone is variable and undulating, with some steep slopes;
   5. except for the area of cultural heritage sensitivity, most areas of Forest vegetation are flat or upslope in relation to the development. Areas of Grassland to the south and west include downslopes exceeding 10 degrees (see map below).

Figure 11: Bushfire hazard site assessment plan - Source: Allan evidence

1. In terms of the Bushfire Hazard Landscape Assessment, Mr Allan considers:
   1. Classification of the type and extent of hazardous vegetation within and up to 150 metres around the property has been conservative;
   2. the surrounding landscape comprises a very high bushfire risk that best accords with Broader Landscape Type 3, noting that this category is the second highest of four risk ratings.
   3. Daylesford (8.1km and 12 minutes away by road) and Hepburn (3.8km and 7 minutes away by road) are in close proximity to the site, have designated neighbourhood safe places (NSPs)/places of last resort, and offer the nearest locations of relative safety but it is acknowledged that:
      1. there are limited routes to these destinations;
      2. travel on the windy roads might be hazardous in the event of a bushfire;
      3. the road access is 'tricky'; and
      4. there might be instances when someone is travelling towards the fire initially in order to reach a place of relative safety;
   4. bushfire hazard has been assessed at a range of scales (including within a 20km, 5km and 1km radius of the Land) so it has been assessed in accordance with clause 13.02‑1S;
   5. virtually all of the land for at least 20km around the site is designated as a bushfire prone area, with much of it, at least within 5km, designated as higher hazard area as indicated by the BMO. The fire history for Crown land surrounding the area, including recent fires in relatively close proximity to the site, reflects the very high fire risk; and
   6. the objective and applicable strategies of clause 13.02-1S can be met if the bushfire protection measures to satisfy BMO objectives are implemented as discussed in this report, including implementation of the BEMP to the CFA's satisfaction. There are no significant obstacles to implementing the identified measures.
2. In terms of the Bushfire Management Statement, which identifies how the proposal can respond to and satisfy the relevant objectives of clause 53.02, Mr Allan states as follows:

1. the proposal exceeds the minimum measures for BMO compliance via a combination of approved measures and alternative measures to meet BMO objectives, which includes the outer zone defendable space, the SIP Building and compliance with the CFA Guidelines; 2. the Land will only be open on lesser risk days, which is one of the layers of resilience; 3. the SIP Building will be constructed to BAL-29 but enhanced to improve resilience, including through non‑combustible materials on external building elements. It is highly unlikely that the SIP Building will burn because there are no combustible materials on it, however, a fire engineer should certify that the SIP Building will be safe to occupy for the anticipated duration, number of people and anticipated level of bushfire attack in accordance with the CFA requirements of its conditional consent; 4. most of the Land will be managed as defendable space. There will be tailored defendable space standards that apply in the outer zone including that grass be short cropped and maintained during the declared fire danger, as well as leaves and vegetation debris being removed at regular intervals during this period; 5. a large, compliant water supply for firefighting is provided and access and egress are available for visitors and emergency services; 6. the conservative approach adopted by Mr Allan takes account of the potential impact of climate change, which is consistent with what is sought in clause 13.01-1S of the Scheme; 7. the proposed structures are well set back from the highest hazard vegetation, being the forest to the north and east, and there is appropriate separation between accommodation units, which provides structural fire safety; 8. there is no requirement for a building permit for the yurts, domes and caravan accommodation units. Accordingly, bushfire design considerations are not applicable to these structures, and the construction of these buildings is not intended to withstand bushfire attack or provide protection of human life from the impact of a bushfire; 9. the caravans now have an increased setback from the Forest to the east, increased from 30m to 40m. The yurts and domes will be set back from the forest a defendable space distance that exceeds the applicable 105 metres from Table 3 to clause 53.02-4; 10. defendable space setbacks for the SIP Building comply with Table 3 to clause 53.02-4 as specified in AM3.2 that applies to 'vulnerable' developments; 11. the development is close to the road and access and egress can comply with the requirements for emergency vehicles; 12. patrons have the option of leaving the Land or staying in an acceptably safe SIP Building; 13. a custom-built private underground bushfire bunker would be safer than the SIP Building but accepts that, psychologically, members of the public might be fearful about entering in a bushfire. However, because the current proposal is for the Land to not be occupied on higher risk days and the SIP Building is constructed to a BAL-29 standard but enhanced, he does not think that there has been a trade-off in safety; 14. it is safer to have a well‑designed SIP Building that everyone can gather in together for 4 hours, providing a mix of personality types, experience etc, rather than people sheltering in an accommodation unit with a BAL-12.5 rating, which would only protect from ember attack; 15. the accommodation units will likely burn in a bushfire, including through an ember landing on an accommodation unit. The separation of at least 10 metres between the accommodation units is usually enough to ensure that the structures will not fall down like dominoes. It is not credible to think that they will all burn in unison; 16. in reality, these accommodation structures will have substantially more defendable space as the proposal can rely on other parts of the Land such as the 'outer zone' defendable space in the area of cultural heritage sensitivity as well as areas to the west and south to the property boundaries; 17. grassland can burn and can carry a fire but it is the intensity and height of flames that leads to a much higher hazard. Whilst there are trees present, and trees could be part of a canopy fire, there are no fuels to carry the fire into the canopy from the grassland; 18. Mr Allan accepts that the CFA considers strict management of vegetation is important. Mr Allan is not aware of any vegetation (other than grass) being planted in the LAA. If shrubs were planted in the LAA this might be acceptable if Table 6 of clause 53.02-5 of the Scheme is met and it might not change the threat categorisation but he would need more information to assess. If anything other than grass is in the LAA, there needs to be a 10 metre setback between other plantings and the SIP Building; 19. the total floor space of all buildings will not exceed 1,500 square metres. Therefore for BMO compliance, the development will need to be provided with a minimum 10,000L capacity static water supply for firefighting, located in an above ground, non-combustible tank/s; 20. the supply is currently provided as three 25,000L steel tanks located near the property entrance. He is instructed that two of these tanks are dedicated for firefighting only and have compliant CFA fittings; 21. the minimum 45,000L static water supply required to be provided to satisfy the CFA Guidelines is met by the existing total 50,000L fire‑fighting supply and agrees that the endorsed plans should have an annotation that 50,000L is guaranteed solely for firefighting purposes;

1. access to the water supply will be designed and constructed in accordance with the specifications provided in Table 5 to clause 53.02-5. In addition, a minimum 10 metre diameter turnaround area will be provided for fire vehicles.
2. In terms of the BEMP, it includes a list of emergency contacts in the event of a bushfire and a list of bushfire information sources. Mr Allan agrees that an annual audit of the BEMP could be useful but he was not sure if the Council has structures (and expertise) in place to conduct such a review on an annual basis. In any event, given the onus is on the operator to comply with the BEMP, an annual audit is not necessary. Mr Allan relies on the relevant plans being endorsed by the CFA and the Council, to ensure that all stakeholders agree and sign‑off on the safety of the plan.
3. The emergency management arrangements in the BEMP include the following components, some of which are expanded upon below:
   1. Fire safety plans;
   2. Closure of Land;
   3. Utilisation of a fire warden;
   4. Distance triggers;
   5. SIP Building;
   6. Patrons' knowledge before booking; and
   7. Site operation rules relevant to fire risk.
4. First, fire safety plans for the Land that show details as appropriate for compliance with the CFA Guidelines.
5. Second, the Land will be closed on higher risk days, being FDR days that are Catastrophic, Extreme or High with a declared Total Fire Ban.
6. Third, the utilisation of a fire warden, being a key measure to protect human life. The fire warden will have an integral function to the satisfactory operation of the Land in regard to management of bushfire risk.
7. Fourth, distance triggers will be created to monitor conditions and initiate an evacuation or shelter in place response:
   1. the distance triggers are based on whether the bushfire is any of the following distances:
      1. within 20km, where the fire warden will travel to and stay on site to monitor conditions and, if necessary, evacuate the Land or shelter in place if the fire develops and threatens or has increasing potential to threaten the site;
         1. between 5km and 10km, where the fire warden will advise all occupants to either leave the Land or stay on the Land and monitor emergency apps, radio and make visual observation of local conditions. It is estimated that occupants may have approximately 3 hours and 20 minutes before a fire 5km away impacts the Land;
         2. between 3km and 5km, where the fire warden will advise all occupants to leave the Land immediately if it is considered safe to do so. It is estimated that occupants may have approximately 2 hours before a fire 3km away impacts the Land, which is considered the minimum time to safely evacuate to a place of relative safety;
         3. within 3km or a 'watch and act' or 'emergency warning'
   2. Mr Allan considers that 2 hours is sufficient time for a patron to drive out of the Land and access Hepburn or Daylesford. He based 2 hours on a conservative fire speed of 1.5 km/hour. He expects conditions at such a time to be low to moderate smoke, depending on the wind direction and strength;
   3. However, even if the fire moves quicker than anticipated, or there is spotting that occurs ahead of the fire front (notwithstanding this is not a credible situation in the benign conditions contemplated), there is still enough resilience in the plan for this to be safe. It is unlikely that there will be multiple fires burning when patrons are at the Land because the bushfire conditions will be relatively benign when the Land is open. He acknowledges that bushfire can be erratic and conditions may not be benign, which is why the design has been based on a catastrophic scenario; and
   4. Mr Allan does not think that the distance triggers for action that are contained in the BEMP are complicated - these have been made as simple as can be.
8. Fifth, the SIP Building, which is provided for in the BEMP and for which Mr Allan gives the following evidence:
   1. this is designed for a maximum number of 30 people for a minimum 4 hours occupancy, with toilets and seating provided and it will be stocked with food and water;
   2. When patrons receive a key to access their accommodation unit, they will also be provided with a key to access the SIP Building, although he thinks that the SIP Building will be kept open on High FDR days;
   3. Mr Allan is not concerned that people will be hesitant about entering the SIP Building, given the circumstances that lead to them to needing to use the SIP Building;
   4. windows with bushfire shutters are provided on all elevations of the SIP Building to assist in monitoring external conditions and identifying when it is safe to leave the shelter;
   5. when the SIP Building is required to be used under the BEMP, there will likely be low to moderate levels of smoke present. People will know when to leave the SIP Building if they look out and see no large areas on fire, low levels of smoke;
   6. the fire warden should leave the SIP Building and inspect the area, including for the presence of embers lodged in the SIP Building. The fire warden will need to form a view whether it is safe to leave;
   7. if people are directed to move to the SIP Building, they should bring all their luggage and items with them so that they can then leave the Land afterwards without needing to return to the accommodation units. Mr Allan thinks that there will be sufficient time for people to collect and pack their belongings before they leave the accommodation unit to move to the SIP Building;
   8. the fire warden should contact local emergency services to inform them that people are in the SIP Building and that the fire warden will also hang a sign to this effect on the front gate;
   9. it is preferable to have one SIP Building, as is the case here, rather than multiple shelter-in-place structures, as was proposed in Clifftop 2021, because the fire warden only needs to monitor one building. There is nothing to be gained by adding another shelter‑in‑place building closer to the caravans;
   10. Mr Allan accepts that the fire warden cannot force people to enter the SIP Building or to stay on the Land and not leave in their vehicle but states that not even emergency personnel have those powers. However, Mr Allan referred back to the booking conditions that made people aware of the arrangements in a bushfire and where they agreed to abide by certain things, as hopefully meaning people will follow the directions of the fire warden; and
   11. in the event of a fire being within 3km of the Land, Mr Allan expects that the fire warden will physically move to each of the accommodation units to speak with persons and will also check the deck.
9. Sixth, regarding patrons' knowledge of the potential bushfire risk and the operation/management of the Land in a bushfire:
   1. Mr Allan understands that persons with a disability or impaired mobility, along with children, will not be able to book at the facility;
   2. Mr Allan has assumed that if a person is choosing to book to stay at the facility that they will be physically able to make their way down to the accommodation units (including carrying their luggage) and if so, they should be able to traverse the pathways and make their way to the SIP Building;
   3. Mr Allan would have thought that there would be some information when booking that a person needs to be able to traverse a 1:10 gradient. If a person of lesser health and fitness was to book the site, Mr Allan assumes that they will be assisted by more able bodied people, such as a family member;
   4. Mr Allan thinks that a person should be required to sign a declaration when booking and that it is important for them to have a minimum level of information prior to doing so, to ensure that the person knows the nature of the bushfire risk and what they might need to do. This requirement could be included in the BEMP or the Operations Management Plan;
   5. if the accommodation facility has a website or social media presence, information should be provided to clients at the time of booking, and updated as required, with regard to bushfire and forecast FDRs, the possibility of cancellation due to Total Fire Ban, Extreme or Catastrophic FDR, and, any forecast of Extreme or Catastrophic FDR (forecast up to four days ahead);
   6. as part of the booking conditions, an induction process must occur to familiarise and inform guests about bushfire procedures and that bookings will be cancelled on short notice upon a forecast of a total fire ban and/or Extreme or Catastrophic FDR, an existing watch and act or emergency warning for the region and a bushfire within 5km of the Land. Further, guests may have to leave the site for a safer place upon notice of bushfire, they may have to evacuate if the site is threatened by bushfire, and they might have to shelter-in-place in the event of bushfire;
   7. Mr Allan thinks that the booking conditions require patrons to have the Vic Emergency Management app on their mobile phone, to enable patrons to monitor surrounding conditions and that if it is not compulsory, persons should be encouraged to have this on their phone so that they can monitor conditions themselves. 'Watch zones' can be set on the app. He assumes that most people will have the app on their phone. In the past when communications have gone down, that was when bushfire conditions were catastrophic, which is when the Land will not be open. It is not credible to think that the communications will go out in the FDRs when the Land is open;
   8. Mr Allan accepts that there is no way to guarantee that the mobile/wifi network will not go down in the event of a fire, although the applicant has been considering different ways to be able to communicate involving the fire warden but it is unclear how much of this will be available or feasible; and
10. Seventh, regarding site operation rules relevant to fire, we acknowledge the necessity and importance of having appropriate rules in place but this will be a matter addressed between the operator and relevant authority.
11. The Tribunal raised concerns relating to movement around the Land in the event of an emergency. This included the gradient of the pathways leading to the SIP Building and the distance to the SIP Building from the accommodation units.
12. Mr Allan did not measure the length between the pathways and the SIP Building in preparing his bushfire assessment. Mr Allan estimates that in 15 minutes the fire warden could move everyone from a group of the accommodation units (e.g. all the people in the domes) to the SIP Building. It may be 30 minutes. This is a subjective estimate based on his experience but even if it takes more than 15-30 minutes, there should be sufficient time to safely move from the accommodation units to the SIP Building.
13. Mr Allan has no concerns regarding patrons navigating the Land via the pathways to reach the SIP Building. Mr Allan says that the pathway gradients are acceptable and he bases this on the Australian Walking Track Grading System, where the proposed pathways would be Grade 2. Mr Allan thinks that the pathways will be suitable for most ages and fitness levels but that handrails could be added in places to assist, especially if patrons are carrying luggage. The pathways will also be lit at night.
14. Mr Allan accepts that if persons are panicked, they might not use the pathways and instead go directly to the SIP Building, cutting across the grass, which will be a steeper gradient.
15. Mr Allan does not think that bushfire conditions will significantly impede people accessing the SIP Building from the accommodation units.
16. In any event, Mr Allan does not think that the pathways need to be changed to provide a more direct route from the accommodation units to the SIB Building because patrons will be on the Land in relatively benign conditions.
17. Mr Allan says that ideally, patrons will follow the pathways in order to reach the SIP Building although acknowledges that persons could cut through the CFA turning circle. Mr Allan is not aware of any fencing being proposed around the LAA. Mr Allan is not concerned if the LAA is fenced as people will have time to move to the SIP Building using the pathways, nor is he concerned if the LAA has to be increased in size, as to the impact that this will have on persons moving to the SIP Building.
18. Overall, Mr Allan does not accept the criticism that the BEMP omits things and is based on lots of things 'going right'. Rather, he says that it is based on a number of clearly articulated assumptions and that he has added conservatism to the design.

1. The applicant relied on Mr Gnanakone's evidence in terms of access and egress to the Land in the event of an emergency such as a bushfire.
2. It was Mr Gnanakone's evidence that the proposed parking and access design will provide an opportunity for a fire truck to access the Land and the water tanks in the event of an emergency.
3. Further, Mr Gnanakone states that the proposal does not change the current ability for fire trucks to navigate along Charlies Road.
4. In response to questions from the Tribunal, Mr Gnanakone stated that:
   1. he had undertaken traffic assessments in other areas of potential fire risk; and
   2. in terms of the potential for smoke to impair a driver's sight, there is unlikely to be anyone driving in the opposite direction (i.e. towards the Land) when patrons are leaving, thereby minimising the danger caused by other motorists, while smoky conditions would make a motorist drive more slowly and cautiously, thereby also mitigating danger.

1. The Council submits that the Land is in a location that is too dangerous to develop and that, as such, people should not be there in view of the potential risks to life and property presented by bushfire.[54]
2. With respect to the proposal's reliance on the SIP Building, the Council maintains that questions remain as to how patrons will be able to safely access the SIP Building from the accommodation units, given the sloping topography and significant distance between some of the accommodation units and the SIP Building.[55]
3. The Council submits that the accommodation units not meeting BAL construction standards is removing a 'layer of resilience' from the proposal. Further, if the SIP Building fails, there is no alternative place of shelter on the Land that meets bushfire construction standards.[56]
4. The Council submits that the BEMP presents challenging on-going management obligations.[57] The Council submits that the distance trigger points for staying or leaving the Land are highly complex and require a high level of specificity as to where a bushfire is burning, information that it is unrealistic to expect will be available to persons on the Land.[58] The Council asserts that the triggers are, in part, dangerous.[59]
5. The Council submits that the Land should also be closed on High FDR days. In part this is because the Council asserts that the complexity of the BEMP arises when the Land is operational and patrons are on the Land when a bushfire is started (outside the Land).[60]
6. The Council cites the CFA advice in the document at Figure 6 of this decision, that on High FDR days a site should be avoided. The Council submits this justifies closure of the Land on such days.
7. The Council submits that Mr Allan's answers to cross‑examination questions supports the Council's concerns regarding patrons' behaviour in emergency conditions, including whether they will listen to instructions and stay in the SIP Building or seek to leave into the road network, potentially putting themselves in danger.[61] This supports the Council's call for the Land to be closed on High FDR days.
8. The Council submits that the concerns held by the Tribunal in Clifftop 2021 regarding assembling at a marshalling station in the open air might also be present here, given the BEMP refers to patrons gathering at an assembly area[62] but does not specify that this is within the SIP Building.
9. The Council also refers to the concerns held by the Tribunal in Clifftop 2021 regarding access to the marshalling location from the accommodation units, which requires navigation and some uphill movement. With the gradient of many of the paths in the pathways plan being significantly steeper than 1:10, the Council submits that the previous Tribunal's concerns regarding uphill access remain unresolved.

1. The CFA provided conditional consent to the grant of a permit for the proposal subject to permit conditions.
2. Amongst the conditions is that the applicant must enter into an agreement made under section 173 of the Planning Act ('s173 Agreement') requiring the Land to be managed at all times in accordance with the BMP, the BEMP and the fire safety site plan.
3. The CFA agrees with Mr Allan that the landscape risk of the Land is very high.[63]
4. The CFA refers to the Tribunal needing to be satisfied that the adoption of an unspecified alternative measure will meet the relevant objective. The CFA submits that the following have resulted in it being satisfied that the objectives of the BMO will be met:[64]
   1. The BEMP being registered on title through the s173 Agreement;
   2. The SIP Building being designed to BAL-29 and to be certified by a suitably qualified fire safety engineer;
   3. Management of outer zone defendable space vegetation;
   4. A fire safety plan including improved fire vehicle access;
   5. The presence of the fire warden on certain types of FDR days;
   6. Site closure on days of Total Fire Ban;
   7. Fire hydrants for each dome, yurt or caravan;
   8. Provision for fire vehicle access including a 10m radius turning circle on flat terrain; and
   9. A distance of up to 100 metres from the end of the fire hose to the water supply including intervening fire vehicle at spacing of 30 metres to water supply and 70 metres to each dome, yurt or caravan.
5. Further, the CFA requires a reticulated fire system to be provided with a pump to ensure that the water performance requirements of AS2419.1 are met, noting that a static water supply is insufficient to achieve the requirements of this standard.[65] The BEMP should be amended to address this requirement.[66]
6. The CFA maintains that the s173 Agreement that it seeks is required to ensure that third parties are given notice of the BEMP.[67]
7. The CFA is satisfied with the indicative plans in so far as they indicate a fire hose coverage within 120 metres, and, a revised turning circle and relocation of fire hydrants.[68]
8. The CFA 'continues to vigorously submit that it expects strict compliance with its conditions to be achieved'.[69]
9. The CFA submits that in assessing the permit trigger under the BMO, the BMO is not an exhaustive statement of matters of fire risk and that clauses 13.02-1S, 53.02 and other clauses of the Scheme also govern the exercise of the discretion under the BMO.
10. The CFA raises concerns pertaining to 'numerous unknowns and uncertainties' regarding the proposal, with some of those matters being important to the assessment of the protection of human life from fire risk.[70] These uncertainties include:
    1. How the booking conditions will work;
    2. Whether the assumptions about the fitness of patrons and their ability to walk the gradients on the pathways are reasonable; and
    3. Whether the LAA and/or the storage tanks may need to increase if the site needs to cater for full occupancy.
11. The CFA also referred to what it described as a number of concessions made by Mr Allan in the giving of his evidence, including:[71]
    1. the nature of the access to the Land being poor and tricky;
    2. a bunker providing a higher certainty of fire safety than the SIP Building;
    3. there is no way of guaranteeing wi-fi capability for guest connectivity and emergency services and no guarantee that the mobile phone network will not go down in a fire; and
    4. that patrons might need to shelter-in-place in the SIP Building for much longer than one hour.
12. In conclusion, the CFA submits as follows:[72]

While CFA has stated that it does not object to the proposal subject to conditions, CFA has concerns about the uncertainties and unknowns in the detail of the application in its present form which are unresolved and which appear to have a direct bearing on whether the level of risk to human life from bushfire is acceptable.

Tribunal's findings on whether the potential risk to persons and property from bushfire is reduced to an acceptable level

1. We accept Mr Allan's evidence that in BMO areas, such as this, there will always be a bushfire risk, and what we need to determine is whether it is a tolerable, acceptable level of risk.
2. It is common ground, and we agree, that the Land and the surrounding area is in an area of very high bushfire risk.
3. It is common ground that the accommodation units are not BAL-rated and will not provide any protection to inhabitants in the event of a bushfire. That is, if there is a bushfire, patrons cannot rely on staying in the accommodation units to shelter-in-place. This is a significant concern to us and was to the previous Tribunal in Clifftop 2021.
4. Mr Allan has taken the very high bushfire risk of the Land and its surrounds into account in preparing the various bushfire management documents relevant to the proposal. This includes the management of defendable space on the Land and the provision of adequate water storage for fire-fighting purposes. More importantly, this also includes the provision of the SIP Building constructed to an enhanced BAL-29 standard, and, the closure of the Land on days with a FDR of Catastrophic or Extreme, and, on High FDR days where there is a declared Total Fire Ban.
5. As a consequence of the accommodation units not providing any safe shelter in a bushfire, there is a heightened importance placed upon the role and safety of the SIP Building, and, the procedures in place to manage patrons' movement to the SIP Building, in the event of a bushfire.
6. Whilst the first of these matters deals with the design and construction of a physical structure and can therefore be controlled with some certainty, the second matter involves something much less certain, being human reaction to an emergency situation.
7. In terms of the first matter, based on the material before us, which includes the evidence of Mr Allan and the views of the CFA as the relevant referral authority dealing with bushfire risk, we accept that the SIP Building should provide a degree of relatively safe shelter in the event of a bushfire. In saying this, we accept that some uncertainties remain regarding the SIP Building, such as what will occur if persons need to shelter in the structure for longer than the 4 hours for which the SIP Building is designed to house occupants. In this respect, we note that the CFA permit conditions require a fire engineer to certify that the SIP Building will be safe to occupy for the anticipated duration, number of people and anticipated level of bushfire attack.
8. The second matter, however, is more difficult to address as it deals with the variability of human reaction. This takes into account not just the details of any emergency plan in the BEMP but also the spectrum of the human condition including lived experience, emotional reaction, resilience, tolerance to fear, willingness to follow direction and physical and mental capacity.
9. How these various factors might present in any group of occupants that are on the Land in a bushfire emergency situation is uncertain. This is notwithstanding the ban on children and infants accessing the caravan and camping facility.
10. We accept that Mr Allan and the applicant have attempted to address the management of patrons in such a situation through the emergency plans in the BEMP. We accept the important role of a fire warden in this task.
11. In these circumstances, where patrons cannot rely on the accommodation units for shelter and must rely on the SIP Building for safe shelter, and the Land and its surrounds is an area of very high fire risk, we agree with the applicant that the safest course is to close the Land on certain days.
12. The applicant proposes closing the Land on days with a FDR of Catastrophic or Extreme, and, on High FDR days where there is a declared Total Fire Ban.
13. This would leave the Land open on days that are:
    1. High FDR but not when there is a declared Total Fire Ban;
    2. Moderate FDR; and
    3. No rating FDR level.
14. The CFA publication extracted at Figure 6 of this decision sets out what each FDR means and the recommended actions. To reiterate, these are as follows, noting that the 'No rating' FDR level is where no proactive action is required by the community:

1. We agree with the applicant's suggestion that the proposal should not be open on days that are classified as 'catastrophic' or 'extreme' given what is meant by these FDRs and what the CFA recommends occur. That is, in both of these FDRs the fire conditions are described as dangerous and it is suggested that persons leave the area.
2. The benefit of closing the site on these types of FDR days is that patrons, who may be unfamiliar with the Land and its surrounds, are not put in a position of danger, being reliant on the shelter of the SIP Building and the effectiveness of the emergency procedures in the BEMP. In effect, this management step removes the risk to these people by removing them from the Land entirely.
3. Removing patrons from the Land on these types of FDR days gives effect to the strategy in clause 13.02-1S to give priority to the protection of human life by reducing the vulnerability of communities to bushfire through the consideration of bushfire risk in decision making at this stage of the planning process.
4. We agree that the proposal should be able to operate on days that are classified as 'moderate' FDR or that have no FDR rating. We say this because these FDRs mean that either no proactive action is required by the community (where it is 'No rating') or most fires can be controlled (where it is 'moderate' FDR). Importantly, we observe that there is no recommendation to leave a site on a day with either of these FDR classifications.
5. This leaves the 'high' FDR days. 'High' FDR days are described as meaning conditions where 'fires can be dangerous'. This compares to the higher FDR level, 'extreme', where 'fires will spread quickly and be extremely dangerous' and the lower FDR level, 'moderate', when 'most fires can be controlled'.
6. On 'high' FDR days the CFA recommendation is for persons to be ready to act because there is a heightened risk. Further, if a fire starts, life and property may be at risk and 'the safest option is to avoid bushfire risk areas'.
7. The applicant proposes to close the Land on High FDR days when there is a declared Total Fire Ban. We agree that the Land should be closed on days of declared Total Fire Ban because on these days there is a heightened fire danger and the declared Total Fire Ban is to reduce the risk of a fire starting.[73]
8. However, given the extent of our concerns regarding patrons being present on the Land in the event of a bushfire, we are not prepared to allow the proposal to operate on any day that has a High FDR. We say this because on those days:
   1. fires still 'can be dangerous', as opposed to most fires being able to be controlled (i.e. Moderate FDR days); and
   2. the CFA recommendation refers to the safest option being to avoid bushfire risk areas.
9. We are concerned that High FDR conditions could support the establishment and/or spread of a bushfire, even where there is not a declared Total Fire Ban. In forming this view, we are mindful of the high fire risk location of the Land and its surrounds and the possible extent of fuel (i.e. vegetation) that could be present at any time, even with the management of the defendable space areas being undertaken in accordance with the Bushfire Management Statement.
10. We are concerned that allowing persons who might not be familiar with the Land and its surrounds to be on the Land in such conditions might put their lives at real risk.
11. We accept that the BEMP seeks to manage patrons' presence on and egress from the Land in potentially dangerous conditions through the establishment of distance triggers to monitor conditions and initiate an evacuation or shelter in place response. These responses vary depending on the distance that a fire is from the Land, be it 20km, 10km, 5km, 3km or less. Mr Allan has estimated how long it will take a fire to travel to the Land, and how long a patron on the Land will have to act.
12. We agree with the Council that this system requires the fire warden and potentially other persons on site to have this knowledge at hand and to have it with some precision. This also relies on communication equipment being operational and reliable. We share the CFA's concerns that this might not always be the case, especially in bushfire conditions. We note that Mr Allan also conceded this. Overall, we share the concerns of the Council and the CFA as to the workability, practicality and safety of the system proposed in the BEMP.
13. Where patrons are required to stay on the site, we hold concerns about:
    1. their movement to the SIP Building when potentially in a panicked state, along pathways, uphill and carrying luggage;
    2. their ability or willingness to follow instructions, including that they remain on the Land in the SIP Building and not leave on Charlies Road; and
    3. their ability to withstand such stressful conditions for what might be some time.
14. If there is smoke in the air obstructing visibility, we are concerned about the physical and psychological effect of this on all of the above, although we recognise Mr Allan's evidence as to the low likelihood of thick smoke being present when patrons are on the Land.
15. We have formed this view notwithstanding the evidence of Mr Allan that when a day is classified as 'high' FDR, the conditions are not likely to be as unpredictable as if the FDR was 'extreme'. We say this because on a 'high' FDR day a fire still 'can be dangerous' and the CFA recommends avoiding bushfire risk areas as the safest option. On a 'high' FDR day we are concerned that bushfire behaviour might still be unpredictable, although less so than on 'extreme' FDR days, and if this occurred, the conditions might result in bushfire moving towards the Land at a different, faster rate than is anticipated in the BEMP. If this was to occur, the consequences for patrons could be severe.
16. By contrast, on a 'moderate' FDR day or a day with 'No rating', whilst there is still a risk that bushfire might break out in surrounding areas and move towards the Land, the less intense conditions are such that patrons should have more time to act and react, including to leave the Land if this is the plan under the BEMP. As such, whilst any bushfire has the potential to endanger persons, this is less likely to occur when conditions are less intense. Though we acknowledge the challenging physical conditions of the Land remain, the movement of persons around the Land on the 'moderate' and 'No rating' days will occur in fire risk conditions in which most fires can be controlled, meaning that patrons should be less likely to be in a panicked state.
17. In short, notwithstanding the evidence of Mr Allan, we remain concerned about the potential unpredictability of bushfire on 'catastrophic', 'extreme' and 'high' FDR days and the possible consequence to human life on such days, in light of:
    1. this being a high fire risk area;
    2. the accommodation units providing no safe shelter; and
    3. the reliance on the SIP Building, the BEMP processes and the management of human behaviour in a pressurised situation, where there is little margin for error.
18. Given the potential for loss of human life in these circumstances and on those FDR days, we find that the preferable outcome is to not put people in that situation in the first place.
19. We make this finding in light of the BEMP, in its current form, being an operational document that is still in draft form and which needs to be finalised to the satisfaction of the Council and CFA, thereby providing an opportunity for the applicant to address concerns raised in the course of this hearing, such as providing greater clarity about communication on‑site during an emergency and information available at the time of booking.
20. In saying this, we observe that even if those concerns are addressed in the BEMP, given the emergency plan remains reliant on persons moving from the accommodation units to the SIP Building, and following directions given by a fire warden, we are not minded to allow occupation on 'high' FDR days, given the potential consequences.
21. We observe that whilst the CFA has provided conditional consent, the CFA has repeatedly emphasised that it requires strict compliance with its conditions. Whenever a condition is imposed in a permission, it is expected that the condition will be adhered to. We have understood the CFA's emphasis on strict adherence to its conditions to be in light of the potential consequences to human life if something was to go wrong on the Land in terms of bushfire response. For the reasons set out above, we have found that the most appropriate response regarding the proposal given the physical and planning context of the Land is to close the Land on certain FDR days, thereby eliminating the prospect of endangering human life if something was to go wrong on one of those days.
22. In summary, we find subject to conditions that include further restriction of the proposed use and development during designated High FDR days, as well as on Catastrophic and Extreme FDR days, the proposal will achieve a satisfactory response and planning outcome in the context of policy at clause 13.02-1S, purposes and decision guidelines of clause 44.06 and the overall purposes, specific purposes and decision guidelines at clause 53.02.
23. We also make this finding noting other elements that will make important contributions to the safety of the site and its occupants:
    • Providing the SIP Building;
    • Providing defendable space where appropriate and required following assessment of this matter; and
    • The procedures, as updated by conditions approved by the CFA and the Council, as set out in the BEMP.

SHOULD PERMISSION BE GRANTED FOR DISPLAY OF THE PROPOSED BUSINESS IDENTIFICATION SIGN?

What permission is required and what have we found?

1. The proposal includes a business identification sign as follows:

Figure 12: Proposed business signage - Source: permit application plans

1. A business identification sign is defined in clause 73.02 of the Scheme as follows:

A sign that provides business identification information about a business or industry on the land where it is displayed. The information may include the name of the business or building, the street number of the business premises, the nature of the business, a business logo or other business identification information.

1. Pursuant to clause 35.07-7 of the FZ, the Land is in Category 4 - Sensitive areas, the purpose of which is to provide for unobtrusive signs in areas requiring strong amenity control.[74]
2. Clause 52.05-14 of the Scheme provides that the total display area to each premises must not exceed 3 square metres.
3. Display area is defined in clause 73.02 of the Scheme as follows:

The area of that part of a sign used to display its content, including borders, surrounds and logo boxes.

It does not include safety devices, platforms and lighting structures.

If the sign does not move or rotate, the area is one side only.

1. The Tribunal in Clifftop 2021 did not discuss the application for permission for signage, although this permission was included in the identified permissions required for the proposal.
2. We find that permission should be granted under clause 52.05 of the Scheme to display the business identification signage for the proposal.
3. Below we address the parties' submissions, including the evidence before us, and our findings on this question.

1. The applicant relies on the evidence of Mr Crowder.
2. It was Mr Crowder's evidence that the proposed business identification signage is appropriate having regard to clause 52.05 of the Scheme and that it will not have adverse impacts on the sensitivity and character of the area or adversely affect views from the public realm. This was on the basis of the limited size of the signage, its elevation of only 1 metre off the ground, its proportionality relative to the proposed water tanks and fencing, its lack of unsightly elements or illumination, and, it not posing an road safety issues due to its location. The sign also serves the function of identifying the premises.

1. Neither the Council nor the CFA made submissions regarding the proposed business identification signage, other than the Council confirming that in its view the proposed sign does not exceed 3 square metres in area.

1. Those of the respondents who made submissions regarding the proposed sign took issue with its size, submitting that it exceeded the 3 square metres area maximum.
2. In particular, the respondent Ms Hancock asserts that the sign exceeds 6 square metres in area and holds concerns regarding the extent to which the sign will be illuminated and whether this will occur throughout the night, given what she has observed occurs at the 'Sahara' property that is also run by the applicant. Ms Hancock is concerned about the effect of such lighting not just on the amenity of the area for residents but also on the local wildlife, such as kangaroos.

1. Having regard to the design of this particular sign, we find that its display area comprises the lettering 'woodstock' and does not include the area of and between the galvanized steel rails and columns. We say this because the lettering is the part of the sign that is used to display the business identification content that provides information about the business on the Land.
2. When the area of the lettering is measured, it measures less than 3 square metres in area. This is based on the permit application materials specifying that the proposed sign's measurements are 2.7 metres x 0.53 metres, which results in an area of 1.431 square metres. As such, we agree with the Council that the proposed sign does not exceed 3 square metres in area.
3. Even if we are wrong about the sign only comprising the lettering, it would not be correct to include the space between the galvanized steel rails and columns as part of the area of the sign. This is because this space is visually permeable and is more in the nature of a pole or structure upon which the lettering is affixed, rather than actually forming part of the signage itself. As such, if we are wrong about the sign only comprising the lettering, then the alternative would be for the sign to also comprise the surface area of the galvanized steel rails themselves but not the space between them. Even if this was included in the calculation, the area of the sign would still be less than 3 square metres.
4. To ensure that this is the case, we will include a permit condition that the business identification sign must not exceed 3 square metres in area. The Council is supportive of that approach.
5. As to the merits of the proposed sign, we find that it design and proposed steel construction fabric is relatively simple and an appropriate response in this landscape; it will not draw undue attention but will identify the business in a way that compliments the style of what is being offered on the Land. As such, we find that the proposed business identification sign is compatible with the character of the area.
6. We agree with Mr Crowder that the proposed sign will not have adverse impacts on the sensitivity and character of the area or adversely affect views from the public realm, having regard to its modest size and elevation, including in proportion to other nearby structures, as well as it not being illuminated. Due to the size, elevation and location of the proposed business identification sign, we find that it will not have an adverse impact on any views, nor will it dominate in views of the Land.
7. The proposed sign is not shown as being illuminated, either internally or externally. As such, concerns about the effect of this signage being illuminated fall away.
8. As to the illumination of other signage internal to the site (i.e. wayfinding), as stated earlier we will impose a permit condition to address any light spill concerns from security/pathway lighting.
9. For the above reasons, we find the proposed business identification sign will achieve an acceptable planning outcome.

1. For the reasons provided above, including the commentary and submissions from the parties, we have addressed the matters of concern through appropriate conditions in Appendix A. As a consequence of these reasons, we have also amended the conditions of the referral authorities.

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

• Use and development of a Camping and Caravan Park in the Farming Zone, Schedule 2;
• Construct a building not connected to reticulated sewerage and carry out works exceeding a depth of 1.0m in the Environmental Significance Overlay, Schedule 1;
• Construct a building and carry out works associated with accommodation in the Bushfire Management Overlay;
• Display of a business identification sign.

1. Prior to the commencement of the development, amended plans must be submitted to the satisfaction of the Responsible Authority for endorsement. The plans must be generally in accordance with the application plans prepared by Robin Larsen Design Pty Ltd: Proposed site plan (Revision C: dated 26 August 2022); Proposed site plan: fire safety (Revision A: 26 August 2022); Pathway plan (Revision C: 26 August 2022); Proposed Shelter-in-Place Building (Revision B: 28 February 2022); Proposed yurt floor plans (Revision B: 28 February 2022); Proposed yurt elevations: 1 and 2 (Revision A: 27 July 2021); Proposed yurt elevations: 3 and 4 (Revision A: 27 July 2021); Proposed dome floor plan & elevation dome 1 (Revision B: 28 February 2022); Proposed dome elevations: 2 and 3 (Revision A: 27 July 2021); Proposed caravans & support frame (Revision B: 28 February 2022); Proposed deck area (Revision A: 27 July 2021); Photos of proposed finishes and forms (29 January 2021); and Proposed entry sign (29 July 2021), but modified to show:

(a) The changes shown on the indicative plans Site Plan, Revision F, 26 July 2023 and Pathway Plan, Revision G, 26 July 2023 including the relocation of the CFA turning circle, and the relocation of the caravans;

(b) A notation that 50,000 litres of water is to be exclusively for fire‑fighting purposes;

(c) The location of the Land Application Areas approved by Goulburn Murray Water;

(d) The location and type of all external lighting;

(e) The access track to the sewerage treatment plant;

(f) A notation that the airstream caravans must be natural unpolished aluminium;

(g) A post and chain fence to the car park area;

(h) Fencing of the boundary of the site and the area of cultural heritage sensitivity;

(i) The relocation of the power pole and services to be clear of the road to the CFA turning circle;

(j) Business identification sign not to exceed 3m2 in area;

(k) All site works exceeding a depth of 1.0 metre;

(l) The provision of handrails to handrails as and where required to the satisfaction of the Responsible Authority;

(m) A schedule of colours, materials and finishes.

1. The layout of the use and the development as shown on the endorsed plans and associated endorsed reports must not be altered or modified unless otherwise agreed in writing by the Responsible Authority.
2. Before the development starts, a landscape plan is required to the satisfaction of the Responsible Authority. Once approved the landscape plan will be endorsed forming part of this permit. This landscape plan must show:

(a) pathways from each accommodation unit to the Shelter in Place Building (SIPB), generally in accordance with the Pathways Plan Rev G 26 July 2023;

(b) all space between the accommodation and SIPB as a defendable area;

(c) any landscaping to be appropriate for a high risk fire area;

(d) the Land Application Area being sown to pasture grasses, with a notation that the grass must be kept mown.

1. Before the use begins, all landscaping works as shown on the endorsed plan must be carried out and completed to the satisfaction of the Responsible Authority. When the landscaping works have been completed, written confirmation must be provided to the satisfaction of the Responsible Authority that landscaping of the land has been undertaken in accordance with the endorsed landscaping plans.
2. All landscaping works as shown on the endorsed plans must be maintained, including that any dead, diseased or damaged plants are to be replaced, to the satisfaction of the Responsible Authority.
3. Before the use begins, a Land Management Plan must be submitted stipulating how the area subject to the approved CHMP will be managed to the satisfaction of the Responsible Authority. Once approved this plan will be endorsed forming part of this permit.
4. No more than 26 guests who must each be away from their normal place of residence guests may be accommodated on the land at any one time unless otherwise agreed in writing by the Responsible Authority.
5. Before the use begins, a Patron Management Operations Plan that addresses patron behaviour, complaints register and amenity impacts of the facility must be submitted to and approved by the Responsible Authority.
6. A guest must not be permitted to occupy any accommodation on the land for more than 90 days in any period of 12 months.
7. No more than 4 staff may be on the land at any one time unless otherwise agreed in writing by the Responsible Authority.
8. All external materials must be non-reflective and finished in natural colours or shades to the satisfaction of the Responsible Authority.
9. The bushfire mitigation measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the Responsible Authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed.
10. Not less than 7 days before the commencement of each fire season the Applicant must undertake a self-audit of the requirements of the Bushfire Emergency Management Plan and certify that each such requirement is being met. A copy must be provided to the Responsible Authority prior to the commencement of the fire season.
11. The permit holder must comply with any written direction of the Responsible Authority or CFA regarding any measures required to be taken to comply with the approved Bushfire Emergency Management Plan, to the satisfaction of the issuer of the direction.
12. All guests must be met on site by a member of staff when accessing the land for the first time. The guest must be shown the location of the SIP building, the location of their accommodation, the fire equipment provided and must be reminded of the booking conditions, including complying with any direction of the fire warden, be provided with a copy of the Bushfire Emergency Management Plan and made familiar with it.

1. The use must be managed so that the amenity of the area is not detrimentally affected though the:

(a) transport of materials, goods or commodities to or from the land;

(b) appearance of any buildings, 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; and

(d) the presence of vermin.

1. Construction activities must be managed so that the amenity of the area is not detrimentally affected through the:

(a) Transport of materials, goods or commodities to or from the land;

(b) inappropriate storage of any works or construction materials;

(c) hours of construction activity;

(d) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste and storm water runoff, waste products, grit or oil; and

(e) presence of vermin,

1. All lighting must be suitably baffled to the requirements and satisfaction of the Responsible Authority.
2. No amplified music, announcements or broadcasts are to be audible beyond the property boundary of the land.
3. All security alarms must be of a silent type and be directly connected to a security service to the satisfaction of the Responsible Authority.
4. No gas appliances are permitted to be included in any accommodation.

1. Provision must be made on the land for the storage and collection of waste and recyclables. This area must be graded and drained and screened from public view to the satisfaction of the Responsible Authority.
2. All waste material not required for further onsite processing must be regularly removed from the land. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created to the satisfaction of the Responsible Authority.

1. No concentrated stormwater shall drain or discharge from the land to adjoining properties.

25 (a) Prior to the commencement of the use, the permit holder must construct the unmaintained/unmade part of Charlies Road from a maintained road network (i.e. from 143 Charlies Road) to the subject land to the satisfaction of Responsible Authority.

(b) Prior to the commencement of use, the road shall be formed, drained and surfaced in accordance with detailed plans and specifications prepared by the land owner and approved by the Responsible Authority.

(c) The road must comprise of;

• Minimum 200mm compacted depth class 3 20mm FCR sub-base;
• Minimum 100mm compacted depth class 2 20mm FCR base;

(ii) Table drains and culverts including pipe culverts at road intersections as required.

1. The developer shall prepare all documents required for obtaining approval from Dja Dja Wurrung Clans Aboriginal Corporation for road works and submitted to the Responsible Authority for forwarding them to the Dja Dja Wurrung Clans Aboriginal Corporation. All costs incurred in complying with the Dja Dja Wurrung Clans Aboriginal Corporation requirements shall be borne by the permit holder.

1. All site works exceeding a depth of 1.0 metre must be undertaken to the requirements and satisfaction of the Responsible Authority.

1. Vehicle access/crossing to the land must be located, constructed and maintained to the satisfaction of the Responsible Authority.
2. Prior to commencement of use the following must be constructed for approval and to the satisfaction of the Responsible Authority:

(a) Vehicle access/crossing to the land must be constructed to the satisfaction approval of the Responsible Authority.

(b) Any proposed vehicular crossing must have satisfactory clearance to any side-entry pit, power or Telecommunications pole, manhole cover or marker, or street tree. Any relocation, alteration or replacement required shall be in accordance with the requirements of the relevant Authority and shall be at the permit holder's expense.

1. The final location and construction of the vehicle crossing is to be approved by the Responsible Authority via a "Consent to Work within the Road Reserve", prior to the undertaking of works.
2. The CFA turning circle must be constructed to the requirements of the CFA and be to the satisfaction of the Responsible Authority and must be kept free from any obstruction at all times.

1. Appropriate way-finding signage must be provided to the satisfaction of the Responsible Authority.
2. The location and details of the business identification sign, including its materials and structure as shown on the endorsed plans must not be altered or modified unless otherwise agreed in writing by the Responsible Authority. The business identification sign must not exceed 3m2 in area.

1. Before construction works start associated with the provision of carparking, detailed layout plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions.
2. Before the use or occupation of the development starts, the area(s) set aside for parking of vehicles and access lanes as shown on the endorsed plans must be:

(a) surfaced with an all-weather surface and treated to prevent dust;

(b) drained in accordance with an approved drainage plan;

(c) constructed and completed to the satisfaction of the Responsible Authority.

(d) an area that is adequate for loading /unloading of recurring deliveries.

1. Where the boundary of any car space, access lane or driveway adjoins a footpath or a garden area, a kerb or a similar barrier shall be constructed to the satisfaction of Responsible Authority.
2. All works must be constructed and completed prior to commencement of use.
3. All costs incurred in complying with the conditions of this permit shall be borne by the permit holder.

1. Before the development starts, a Bushfire Management Plan (separate to the Bushfire Management Statement and separate to the Bushfire Emergency Management Plan) that is to the satisfaction of CFA must be submitted to and endorsed by the Responsible Authority. Once endorsed the plan must not be altered unless agreed to in writing by CFA and the Responsible Authority. The plan must be generally in accordance with Map 4 - Bushfire Management Plan (pages 1 to 3) incorporated at pages 37 to 39 of the Bushfire Management Statement prepared by Terramatrix, dated March 2022 but modified to replace the conditions for Outer Zone Defendable Space with:

(a) Grass must be short cropped and maintained during the declared fire danger period.

(b) All leaves and vegetation debris must be removed at regular intervals during the declared fire danger period.

(c) Individual and clumps of shrubs must not exceed 5m2 in area, must be separated by at least 5 metres and must not be located under trees.

(d) There must be a clearance of at least 2 metres between the lowest tree branches and ground level.

1. Before the development starts, the site plan: Fire Safety must be amended to the satisfaction of CFA and then submitted to and endorsed by the Responsible Authority. Once endorsed the plan must not be altered unless agreed to in writing by CFA and the Responsible Authority. The plan must state that 50,000 litres of water supply is to be maintained exclusively for fire-fighting purposes and connected to a reticulated water supply complying with AS 2419 to the satisfaction of CFA.
2. Before the development is occupied, the shelter in place building (SIP Building) shown on the endorsed plan must be constructed on the land. The design and construction of the SIP Building must:

(a) have regard to its purpose as a place of shelter during a bushfire, including the number of likely occupants, tenability within the building for that number of occupants during a bushfire, and the likely level of exposure to the building from a bushfire; and

(b) be certified by a suitably qualified 'fire safety engineer'.

1. Before the development starts, an amended Bushfire Emergency Management Plan to the requirements and satisfaction of CFA must be submitted to and endorsed by the Responsible Authority. The plan must be generally in accordance with the Preliminary Draft: Bushfire Emergency Management Plan prepared by Terramatrix, dated March 2022 but modified to:

(a) Provide information regarding communication on‑site during an emergency and information regarding booking procedures;

(b) Be clear that prior to any evacuation of the site, the location of any bushfires relative to egress routes and the ability to safely travel those egress routes is considered; and

(c) Address any other site operational management requirements of the CFA associated with fire safety.

Once endorsed, the plan must not be amended or altered unless otherwise agreed in writing by CFA. This does not apply to minor administrative updates such as contact details, people, agency names that enable the plan to remain current.

1. Before the development is occupied, the owner must enter into an agreement with the responsible authority under Section 173 of the Planning and Environment Act 1987 (Vic). The agreement must provide for the following:

(a) The premises must be managed at all times in accordance with the following plans endorsed as part of Planning Permit PA 3335, or as per an approved amendment of any such plan to the satisfaction of the Responsible Authority:

• Bushfire Management Plan.
• Bushfire Emergency Management Plan.
• Site plan: Fire Safety.

1. The shelter in place building constructed on the land must be maintained on an ongoing basis in a standard that enables it to fulfil its purpose.
2. The site must be closed on days with an actual or forecast Catastrophic, Extreme or High fire danger rating days, or declared Total Fire Ban days.
3. A trained fire warden must be present at the site on days with an actual or forecast Catastrophic, Extreme or High fire danger rating or declared Total Fire Ban days or when there is a bushfire within 20km of the subject land.

1. Prior to the commencement of construction, the applicant must prepare and submit to the satisfaction of Goulburn Murray Water a Land Capability Assessment including a detailed engineering design of the proposed waste water treatment system, generally in accordance with the Land Capability Assessment by EWS Wastewater and Soil Consultants dated 31 August 2021 but modified to satisfy the requirements of the conditions of this permit.
2. All construction and ongoing activities must be in accordance with sediment control principles outlined in 'Construction Techniques for Sediment Pollution Control' (EPA, 1991).
3. All wastewater from the dwelling must be treated to a standard of at least 20mg/L BOD and 30mg/L suspended solids using a package treatment plant or equivalent. The system must have a certificate of conformity issued by the Conformity Assessment Body (or equivalent approval) and be installed, operated and maintained in accordance with the relevant Australian Standard and EPA Code of Practice.
4. The wastewater management system must be appropriately designed to manage the potential volume of wastewater generated under full occupancy of the site including an appropriately sized disposal area based on a full water balance specific to the proposal and subject land.
5. The wastewater disposal area must be located at least: 100 metres from any waterways, 40 metres from any drainage lines, 60 metres from any dams, and 20 metres from any bores.
6. The wastewater disposal area must be kept free of stock, buildings, driveways, pedestrian access, recreational use and service trenching and must be planted with appropriate vegetation to maximise its performance, subject to the satisfaction of the CFA. Stormwater must be diverted away. A reserve wastewater disposal field must be provided for use in the event that the primary field requires resting or has failed.
7. The primary wastewater disposal field must have an area of at least 1,600m2 and the reserve wastewater disposal field must have an area of at least 480m2 and be located separately from the primary wastewater disposal field, all to the satisfaction of Goulburn Murray Water. The areas of the primary wastewater disposal field and reserve wastewater disposal field must not be varied without the written consent of Goulburn Murray Water.
8. The wastewater disposal areas must be fenced to prevent access across the area to the requirements of the CFA and satisfaction of the Responsible Authority.
9. No buildings are to be constructed within 30 metres of any waterways or on any drainage lines.
10. Prior to the commencement of construction, a permit for the on-site wastewater management system must be obtained in accordance with part 3.2 Environment Protection Regulations 2021 (Vic) and must comply with the regulations at all times.
11. Prior to the commencement of the use, a certificate of approval must be obtained for the use of the on-site wastewater management system in accordance with Regulation 33 Environment Protection Regulations 2021 (Vic).

1. All buildings and works must be setback a minimum of 30 metres from the top of bank of the waterway that traverses the property.

1. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two years of the date of this permit.

(b) The development is not completed within four years of the date of this permit.

(c) The use is not started within four years of the date of this permit.

(d) The use is discontinued for a period of two years.

The Responsible Authority may extend the permit if a request is made in writing in accordance with Section 69 of Planning and Environment Act 1987.

[1] It is acknowledged and recorded that not every respondent appeared on every day of the hearing.