Mr A Finanzio of Counsel, instructed by Freehills Lawyers. Ms M Keen, Solicitor, appeared on Day 3. Mr Finanzio called the following expert witnesses:

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Dr A McCowan, a Consultant Engineer with expertise in flood modelling

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Mr M Cawood, a Consultant Engineer with expertise in flood risk management

The responsible authority was excused from appearing at the commencement of Day 4 and Ms McMaster withdrew.

Mr S Molesworth QC, instructed by Gadens Lawyers. Mr J Lofting, Solicitor appeared on Day 3 only. Mr Molesworth called the following expert witnesses:

• Mr M Edwards, an Engineer experienced in floodplain management employed by Melbourne Water.

• Mr N Benning, a Consultant Engineer with expertise in floodplain management in emergency or floodplains.

(The hearing did not proceed on Day 3 because of illness of one of the representatives.)

1 Application under Section 79 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of the failure of the Yarra City Council ("the Responsible Authority") to grant a permit within the prescribed time.

2 The proposal before the Tribunal is for seven warehouse units. The latest plans were filed and served under cover of a letter from Freehills Lawyers dated 18 August 2005. The permit application has not been amended but I have considered those plans in arriving at my decision in this matter.

3 The warehouses are to be contained in two buildings, one behind the other. The front building would be set back 1.438 metres from Flockhart Street. There will be a roadway along the south and east of the front building and the rear building would be to the east of that roadway. The warehouse buildings would be of two levels above the ground floor level which would contain car parking and loading/unloading facilities. The two warehouse levels of the front building would overhand the 1.4 metre ground floor level setback from Flockhart Street and abut the front boundary. The front warehouse building would abut the north boundary at the ground floor and have a 6 metre setback at the upper two floors with a podium for pedestrian access in the first floor setback area. The front warehouse would cantilever over the internal road and abut the south boundary at the upper two levels. The rear warehouse building would generally abut both side boundaries at the subject land.

4 The warehouses would reach a maximum height of 4.3 metres measured from the frontage of the subject land. It is proposed that the warehouses be constructed using precast concrete panels and feature glazed balustrading to balconies and slated galvanised steel entry gates and doors. The latest plans deleted the end fill petition walls on the ground floor and relocated the staircase in warehouse No. 4.

5 The subject land is on the east side of Flockhart Street approximately 300 metres north of Victoria Street. It has an abuttal to the Yarra River. The subject land is presently vacant except for a dilapidated shed, and is generally flat except for a steep embankment to the Yarra River to the east.

6 The dimensions of the subject land are:

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Frontage - 39.66 metres

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maximum depth 101.19 metres

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Area - 4110 square metres

7 The subject land is located within an industrial neighbourhood generally bounded by Church Street, Nelson Street, Victoria Street (excluding the land immediately abutting Victoria Street) and the Yarra River. The CUB factory complex occupies a significant portion of the neighbourhood.

8 There is a single storey and double storey office/warehouse complex to the south, with the building closest to the subject land being double storey with a single storey warehouse building further to the south. The Flockhart Street frontage is occupied by car parking.

9 There is a park to the north of the subject land which runs the length of the Yarra River frontage. This park contains BBQ facilities and is bounded by a low cyclone fence on the south boundary of the subject land. There are a number of large trees located within the park and along the elevated banks of the river.

10 Flockhart Street has a 7.2 metre wide asphalt pavement within a 10 metre wide road reserve. There are 1 metre wide asphalt footpaths on either side. There are "no standing" signs on both sides of Flockhart Street, which is a no-through road terminating at a public carpark associated with the park.

11 To the west on the opposite side of Flockhart Street is a carpark which was reserved for employees of the former Westons premises . There is a multi level carpark to the north of that site, which has a direct frontage on the east boundary to the Yarra River.

12 The subject land is covered by the Yarra Planning Scheme and is in an Industrial 1 Zone which is the subject of cl.33.01. A warehouse is a Section 1 as of right use provided that certain conditions are met, and those conditions are met. A permit is required to construct a building or to construct or carry out works, pursuant to cl.33.01-4.

13 The subject land is covered by Schedule 1, Yarra River Environs, pursuant to cl.42.01, Environmental Significance Overlay. A permit is required to construct a building or to construct or carry out works and to remove, destroy or lop any vegetation. An application for buildings and works and removal of vegetation under the Environment Significance Overlay must be referred to Melbourne Water pursuant to cl.66.04.

14 The subject land is covered by Schedule 1, Yarra River Corridor - inclusive of Merri and Darebin Creeks, to cl.43.02, Design and Development Overlay. A permit is required to construct a building or to construct or carry out works pursuant to cl.43.02-2. The Overlay requires that buildings and works be constructed or carried out in accordance with the following policy references:

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Urban Design Guidelines for the Yarra River Corridor, City of Yarra, 1998;

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Guidelines for Heritage Places, City of Yarra, 1998; and

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Advertising Code, City of Yarra, 1996.

15 The subject land is covered by cl.44.04, Land Subject to Inundation Overlay. A permit is required to construct a building or to construct or carry out works, including a fence and road works, pursuant to cl.44.04-1. An application must be referred to the relevant planning authority, Melbourne Water.

16 The subject land is affected by Schedule 2 to cl.45.01, Public Acquisition Overlay. Melbourne Parks and Waterways is the relevant acquisition authority. The subject land is only partly affected by this Overlay and no buildings or works are proposed within the affected area.

17 Clause 52.06, car parking, applies to the proposal. Clause 52.06-1 provides that the required car spaces are set out in the table at cl.52.06-5. The table sets out a requirement of 1.5 car spaces to each 100 square metres of floor area for warehouse. A permit can be granted, pursuant to cl.52.06-1, to reduce or waive the number of car spaces required.

18 Clause 52.07, Loading and Unloading, applies to the proposal. This clause provides that no building or works may be constructed for the manufacture, servicing, storage or sale of goods or materials unless specified loading and unloading requirements are met. A permit may be granted to reduce or waive these requirements.

19 Reference was made to the following planning policies:

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Melbourne 2030;

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Clause 14.02 Metropolitan Development;

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Clause 15.02 Floodplain Management;

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Clause 15.09 Conservation of Natural Flora and Fauna;

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Clause 15.10 Open Space;

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Clause 17.03 Industry;

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Car Parking and Public Transport Access to Development;

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Clause 19.03 Design and Built Form;

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Clause 21.04 Key Strategies;

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Clause 21.05-1 Urban Design Framework;

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Clause 21.05-3 Industry and Commerce;

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Clause 21.05-5 Open Space;

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Clause 22.03 Yarra River Corridor Urban Design Guidelines;

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Amendment C66, which proposes to implement the findings of the City of Yarra Built Form Review by making changes to the Municipal Strategic Statement, introducing a new local policy titled Built Form and Design Policy, and revising the Schedules to cl.43.02, Design and Development Overlay - Amendment C66 has now been approved.

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Yarra Industrial and Business Land Strategy Review.

Grounds on Which Application Would Have Been Refused

20 The Responsible Authority advised that if an application for review of the failure to grant a permit had not been lodged a notice of refusal to grant a permit would have been issued on the grounds submitted by Melbourne Water, namely:

1. The proposed development will have significant impacts on the flood levels of neighbouring properties.

2. The proposed development does not provide for a minimum freeboards requirement of 600mm.

3. The depths and velocities of the site are excessive and pose a safety risk on the site.

21 Amended plans addressed the issue of height and ground of refusal No. 2 was then no longer applicable.

22 It will be clear from the grounds that the issues in this application for review relate to flooding.

23 Dr McCowan, a consultant engineer with expertise in flood modelling who was called as an expert witness for the Applicant for Review/Permit Applicant, said that Melbourne Water has specified the designated flood level as 11.25 metres AHD, and for all practical purposes this can be considered as the same as the 1 in 100 year ARI level of 11.3 metres AHD, and it was understood that these levels were based on the flood levels that occurred in the Yarra River during the December 1934 flood. Dr McCowan said that with typical ground levels of around 8.5 metres AHD most of the property could be expected to be inundated to a depth of about 2.8 metres during a repeat of the 1934 flood. Dr McCowan also gave evidence that there have been changes in the Yarra catchments since the 1934 flood, including:

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the 1939 bush fires that resulted in the replacement of mature mountain ash with more vigorous younger growth which resulted in a greater use of soil moisture with a corresponding reduction in rainfall run-off;

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the upper Yarra dam that was constructed from 1952 to 1957 that would provide attenuation of flood flows in the upper part of Yarra River Catchment; and

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a change in land use of non-forested areas of the Catchment with grazing giving way to water culture and viticulture, with a large number of farm dams which would provide attenuation of flood flows in the tributaries leading into the Yarra River.

24 Dr McCowan said that the subject land is only likely to be inundated during a major flood and the warning time associated with such a flood would be likely to be in excess of 12 hours and maybe as much as 24 hours or more. He said that under the Flood Response Plan this would be more than a adequate time to evacuate all personnel vehicles and secure the site and the site was proposed to be fully self-sufficient in relation to emergency requirements during a flood.

25 The subject land is at the northern end of Flockhart Street. Mr Molesworth, in his written submission for Melbourne Water a referral authority, submitted that part of the concern of Melbourne Water relates to access being via Flockhart Street which he submitted is long, narrow and a dead-end and is itself subject to the same flooding risks on the subject land. Mr Molesworth submitted that the subject land is within the active floodplain of the Yarra River, and Melbourne Water's primary concerns relate to the intensity of the proposed warehouse development and the level of flood risk that it would introduce to life, health and safety, occupants and emergency personnel based on the duration, extent, depth and velocity of flooding both on the subject land and in Flockhart Street.

26 The subject land is covered by a Land Subject to Inundation Overlay which is the subject of cl.44.04. The purposes set out at cl.44.04 include:

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To identify land in a flood storage or flood fringe area affected by the 1 in 100 year flood or any other area determined by the flood plain management authority.

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To ensure that development maintains the free passage and temporary storage of flood waters, minimises flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level of flood velocity.

27 The decision guidelines are set out at cl.44.04-6 and include:

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any comments from the relevant flood plain management authority (ie. Melbourne Water);

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the potential flood risk to life, health and safety associated with the development.

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The frequency, duration, extent, depth and velocity of flooding of the site and accessway.

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The flood warning time available.

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The danger to the occupants of the development, other flood plain residents and emergency personnel if the site or accessway is flooded.

29 Mr Cawood, a consultant engineer with expertise in flood risk management who was called as an expert witness for the Applicant for Review/Permit Applicant, prepared an outline of the scope and elements of a Flood Management Plan for the proposal. It was the evidence of Mr Cawood that under a 100 year ARI flood type conditions it would be expected that the Yarra River would rise from "normal" levels to:

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the level of Flockhart Street in front of the subject land in around 18 to 24 hours; and

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the level of the carpark in around 21 to 30 hours of river rises commencing (this would be some considerable hours after the start of heavy and prolonged rainfall).

30 The Flood Management Plan would be prepared specifically for the management of flood risk on the subject land and to facilitate the safety of people and property "without increasing reliance on emergency service personnel", and it would guide tenants and the Body Corporate Manager in the responses to flooding so as to:

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maximise the safety of individuals (ie. staff of, and visitors to, the warehouse based businesses);

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limit the threat to life;

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minimise property damage; and

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ensure that the effect of functioning of the warehouse based businesses is maintained during small flood events and restored as quickly as possible after a severe Yarra River flood event.

31 Mr Cawood said that the Flood Management Plan would be incorporated as a stand alone loose leaf insert in the Operational Procedures Manual for the warehouse development and that it would managed by the Body Corporate Manager. Essential elements relating to individual responses would be captured in a Flood Action Plan that would be delivered to new tenants as part of a Lease or Purchasers Pack and later as part of a routine review, update and redistribution program. The obligation of an owner or tenant of a warehouse to comply with the Flood Management Plan and the directions of the Body Corporate Manager could be incorporated in a s.173 Agreement, Body Corporate Rules, or the tenants' leases. Mr Cawood said that it was essential that the Body Corporate Manager be familiar with the contents and intent of the Flood Management Plan, and the importance of the Flood Management Plan, and the importance of the Flood Maintenance Plan and its maintenance should not be underestimated. He said that it was a fundamental principle of emergency management that communities that have thought about a problem and plan for it beforehand are able to cope better than those who ignored the problem and hoped it would never occur.

32 Mr Cawood said that the Flood Management Plan would be developed following consultation with Melbourne Water and the City of Yarra and would provide for:

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early advice to warehouse tenants of possible severe flood events;

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six hours minimum warning lead time to potentially unsafe egress conditions; and

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regular contact with the City of Yarra Municipal Emergency Response Officer, SES, Melbourne Water and the Bureau of Meteorology.

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signage on the site in accordance with the Flood Management Plan; and

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co-operation with Melbourne Water in the determination of a suitable nearby site for a river level gauge (alarmed if considered necessary) and flood level marker and in their installation, maintenance and use.

34 Mr Cawood noted that the City of Yarra has not yet developed formal Flood Response and Evacuation Management Plans for areas affected by Yarra River Flooding within the municipality, but does recognise flood as a potential hazard. He said that flood and a range of other hazards are addressed generically through the Council Municipal Emergency Management Plan.

35 Mr Cawood said that:

In the interests of maintaining a high degree of flood preparedness, it is suggested that the City of Yarra Municipal Emergency Management Plan be edited to include the need for a call to the mobile phone or pager of the Body Corporate Manager when the forecast level for Johnston Street exceeds 8.8m (approx 7.9m AHD at Flockhart Street) and again when the level is forecast to exceed 9.2m (approx 8.2m AHD at Flockhart Street). The purpose of the first call would be to alert of possible major flooding along the lower reaches of the Yarra River and of the need for the Body Corporate Manager to maintain an active watch on further river rises. The second call would provide a further alert for the Manager and prompt initiation of appropriate flood response actions in line with the Flood Action Plan developed for the site.

36 Mr Cawood said that regardless of these calls the Body Corporate Manager would be aware of likely flood conditions.

37 Mr Finanzio said in his submission:

(a) What is the nature of the hazard affecting the proposed development on the subject? And

(b) Is there an adequate or acceptable means of managing the risk of that hazard occurring?

38 I accept the questions as set out by Mr Finanzio.

39 Ms Dowsey, in her written submission for the Responsible Authority, said:

However, the site is located in a flood prone area and for this reason Melbourne Water has objected to the grant of a permit. Council has no alternative in these circumstances other than to refuse the application. Nonetheless, Council also considers through its own assessment that the applicant has not successfully addressed the issue of safety in the event of a flood occurring.

40 I consider that the questions posed by Mr Finanzio are appropriate, in particular the second question.

41 Ms Dowsey tendered comments from Mr E. Valente, the Municipal Emergency Resource Officer for the Yarra City Council, as part of her submission. The comments made reference to the report of Mr Cawood and said:

Quite clearly the way the report has been written this is not the case. The report is trying to dictate to Council what it is to do for this property should a flood emergency arise. Obviously this is totally unacceptable. Whatever flood management plan the developers or owners of this property come up with is their responsibility not the responsibility of Yarra City Council.

The report goes on further placing tasks on Yarra to satisfy this particular development. Obviously this is not acceptable. What is proposed is not what the MEMP is there for. It does not fit with its aims responsibilities of the MEMPC. The MEMP is not for individual properties as such. It is there for the macro issues. That is what Council is to be concerned with. Individual properties need to be responsible for their own businesses and not force their responsibilities on others.

42 I consider, having regard to the report of Mr Cawood, that the proposed Flood Management Plan would rely too heavily on input by Council officers. Council officers responsible for emergency management would have many concerns with respect to protection of life and property in a 100 year ARI flood event. It would be unreasonable to expect them to be providing calls to the Body Corporate Manager as suggested by Mr Cawood. If the Body Corporate Manager of the development on the subject land could expect such calls then presumably many other owners and/or occupiers in the City of Yarra could also expect such calls. This would be an unreasonable imposition.

43 The Flood Management Plan would also require a high level of organisation by a number of persons, including the Body Corporate Manager and owners/lessees/occupiers of individual warehouses. This could not be ensured simply by having s.173 Agreements, lease agreements etc in place. It is not sufficient to say that a s.173 Agreement is binding at law. What is important is that it is understood and followed when necessary.

44 There is the potential, if the Flood Management Plan is not properly followed, to place additional burdens on emergency services including the SES, who would already be over-burdened.

45 Mr Cawood also stated:

The Body Corporate Manager would use a combination of telephone calls and door knock to alert businesses to the need to secure and evacuate the site and remove all cars from the car park. If the notification "trigger" occurs on a weekend or at night when the site is vacant, the Body Corporate Manager would telephone the manager of each warehouse business advising that neither they or staff and customers should attend the site until they are notified that the flood risk has alleviated.

After the last car has been evacuated from the car park (or 4 hours after the initial alert, whichever comes first) the Body Corporate Manager would close and lock the boom gate at the entrance to the site and display signs advising that entry is not allowed due to danger associated with possible flooding (or similar wording that conveys the potential danger and discourages people from entering the site). Arrangements will be made to tow any cars remaining in the car park more than 4 hours after the initial evacuation order, to a secure location at the owner's expense.

The Manager would also ensure that power to electrical services located below first floor level (eg. security, lights, etc) was isolated and turned off.

46 I consider that this demonstrates the level of organisation and co-operation that would be required, and also assumes that tow trucks would be available to tow away any cars remaining in the carpark during such a flood event.

47 I acknowledge that there would be a number of hours of warning time prior to a flood event requiring evacuation from the subject land. My comments have been made taking account of the warning time available. Irrespective of the warning time available the success or otherwise of a Flood Management Plan would depend on good organisation, co-operation and support from public bodies, at least including the Yarra City Council.

48 One of the decision guidelines for the Land Subject to Inundation Overlay set out at cl.44.04-6 includes flood risk factors to consider including the danger to the occupants of the development, other flood plan residents and emergency personnel if the site or accessway is flooded. I am not satisfied that the Flood Management Plan, the outline of which was provided by Mr Cawood, is appropriate having regard to this decision guideline.

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