1. The decision of the Responsible Authority is affirmed.
2. In permit application 12/0010 no permit is granted.
3. The application for costs against Corangamite Catchment Management Authority is dismissed. Each party is directed to bear its own costs.

Mr John Carey, solicitor from Minter Ellison. He called the following witness:

• Dr Mark Jempson, a hydrologist and civil engineer from BMT WBM.

Ms Maggie Juniper, a town planner from Surf Coast Shire Council.

Dr Geoff Taylor, Floodplain Statutory Manager from Corangamite Catchment Management Authority.

A subdivision of the subject land into two lots is proposed. One lot would contain an existing dwelling. The second would be vacant.

Review of a decision to refuse to grant a permit under section 77 Planning and Environment Act 1987.

Zone and Overlays applying under the Surf Coast Planning Scheme

Significant Landscape Overlay (Clause 42.03 and Schedule 3).

Planning permissions required under the Surf Coast Planning Scheme

Subdivision of land in a Residential 1 Zone (Clause 32.01-2) and salinity management overlay (Clause 44.02-2).

The site is located adjacent the west bank of the Anglesea River within central Anglesea. It is a lot of 1,456m2 in an irregular shape, having an angled frontage of 50.28m along wide road verge to River Reserve Road, a northern boundary depth of 20.55m that abuts a reserve, a rear (western) boundary of 48.78m abutting three residential (developed) lots and a southern 43.13m boundary abutting a vacant lot.

1. Mr Crawford has sought a permit to subdivide his property in Anglesea into two lots. This property is in an area that the Surf Coast Planning Scheme indicates is suitable for more intensive residential use however it is also land that is subject to flooding from the Anglesea River.
2. The Surfcoast Shire Council, having received advice from the Corangamite Catchment Management Authority about the risk of flooding and associated hazards has refused to grant a planning permit. In addition to the flood hazards the Council considers that the subdivision will result in development that is contrary to a number of current and future character and other planning policy objectives.
3. Mr Crawford disputes the grounds raised against his subdivision and seeks a review of the Council's decision.

1. In response to the flood risk, submissions for Mr Crawford firstly highlight that none of 'the suite of planning controls available to be applied to flood vulnerable land' apply to his land. While this is true, it was not pressed in submissions that the flood risk was not a relevant matter to consider. Even if such a submission had been made I would not have accepted that this would prevent consideration of the flood risks for the following reasons:
   • Subdivision of the land under the residential zone (and other relevant controls) requires consideration of state and local planning policy frameworks and a range of decision guidelines.
   • State planning strategies and principles[1] call for development of regional settlements to be sustainable by amongst other outcomes minimising the risk to life and property from natural hazards such as flooding.
   • State planning policy seeks to assist in the protection of life and property from flood hazard, while maintaining the natural flood carrying and storage capacity of floodways and floodplains by amongst other outcomes,[2] avoiding inappropriately located development.
   • General decision guidelines[3] call for a responsible authority (and the Tribunal) to consider the degree of flood hazard associated with the land and whether development of such land can minimise the hazard to an acceptable level.
   • General decision guidelines call for a responsible authority to consider the suitability of the land for subdivision.[4]
2. Being aware of the site's possible susceptibility to flooding, the Council sought expert assistance from the CMA by way of a section 52 referral.[5] In response the Corangamite CMA advised the Council[6] that while the land is outside the present day extent of the Land Subject to Inundation Overlay,[7] a 2010 floodplain study shows that the land would be subject to inundation in a '1 in 100 year' flood event.[8] The estimated flood level is 2.4m AHD[9] under present day climate and flood conditions.[10] The Corangamite CMA maintains that this flood level presents a high to extreme hazard to people evacuating the site. Accordingly it opposed the intensification of the land use that would arise from the subdivision.
3. The CMA's opposition to the development was incorporated into the Council's grounds for refusing the permit.

1. Dr Jempson's evidence does not challenge the flood level estimated from the 2010 study. His evidence challenges the level of hazard put forward by the Corangamite CMA. There is agreement between Dr Jempson and the CMA about applicable guidelines by which to assess the level of hazard, these being the Floodplain Management in Australia Best Practice Principles and Guidelines (SCARM 2000) - the SCARM Guidelines - and Guidelines for Development in Flood-prone Areas (Melbourne Water, 2008) - the Melbourne Water Guidelines. The basis of disagreement between Dr Jempson and the Corangamite CMA is in the application of these guidelines.
2. Having regard to these guidelines, Dr Jempson's evidence is that:
   • The velocity of flood water over the site and River Reserve Road 'can be considered to be negligible' and so the depth of floodwater is the only consideration in determining the level of hazard.
   • The SCARM Guidelines detail that depths of up to 0.3m are low hazard, 0.3m to 0.6m are medium hazard and 0.6m to 1.2m are high hazard when flood flow velocities are zero or near to zero.
   • Melbourne Water Guidelines indicates a depth of 0.35m to be unsafe, with this criteria to be applied to key locations for outdoor access areas and routes of ingress or egress to or from a flooded site.
3. Dr Jempson's recommends filling of the site to lift the floor level of any future dwelling and to provide key access points and property ingress/egress pathways so that a maximum flood depth of 0.35m is not exceeded. He notes that generally the Melbourne Water Guidelines seek to avoid loss of flood storage capacity, but may allow some filling where it occurs on the fringe of large flood plains. He maintains that the loss of storage would be of the order of 100m3, a relatively small loss in comparison to the area of the Anglesea River flood plain and the location of Mr Crawford's property on the fringe of that flood plain.
4. In terms of site access to the property under flood conditions, Dr Jempson maintains that the depth of floodwater over River Reserve Road would be no more than 0.5m.[11] He maintains that this would be safe for four-wheel drive vehicles and a safe wading depth for children and adults in accordance with the SCARM Guidelines, assuming zero or near zero floodwater velocities.
5. He notes that the distance necessary to travel (by 4WD or wading) along the road would be approximately 28m to the south or 50m to the north. He agrees that technically wading or driving vehicles for a depth in excess of 0.35m is contrary to the Melbourne Water Guidelines. He relies however on what he terms 'concessions' under these guidelines for infill development to conclude that the level of risk will be acceptable, in particular that the risk level for Access Safety can be reduced.
6. In respect to this latter conclusion, Dr Jempson refers to the Melbourne Water Land Development Manual, specifically to the scenario where flood water crosses over a low point or depression of a road. He asserts that this is the applicable scenario for this site, given River Reserve Road rises to the north and south from the subject land, and that the flooding of this land arises from the depression that extends westward from the main river flow channel. The Design Manual indicates that in such a cross flow situation, a depth of not more than 0.8m of flood water is acceptable provided the product of depth and velocity is not more than 0.35m2/sec.

1. Table 2 of the Melbourne Water Guidelines details various development scenarios and the necessary requirements to address satisfactorily flood impacts. Dr Jempson and the Corangamite CMA agree that the applicable scenario under these guidelines is for smaller urban subdivisions. The relevant requirements are set out in the following table taken from the Melbourne Water Guidelines:

Necessary Requirements - As per Section 5

Smaller urban resubdivisions (i.e. two-lot subdivisions; unit developments) and smaller urban developments.

• New buildings and/or lots located outside active flow areas.

• In existing urban areas, access safety requirements and smaller urban may be difficult or impossible to meet. Consideration of the proposal will only be provided where the other four requirements are fully achieved and there will be a reduction in overall risk in terms of access safety. All such cases, proposals should be discussed with Melbourne Water prior to the lodging of any formal application.
• It is not desirable for flows to penetrate sub-floor areas/voids below the 100-year flood level.
• Consult Melbourne Water's Land Development Manual to obtain standard main drainage design conditions. Special development conditions will be provided in the 'offer of drainage conditions', supplied by Melbourne Water after receipt of 'application for conditions'.

1. As can be seen from this table, for this two lot subdivision, the Melbourne Water Guidelines require all five of the guidelines core requirements to be met. These core requirements are set out in Section 4 of the Melbourne Water Guidelines (not withstanding the reference in Table 2 to 'Section 5').
2. These core requirements are:
   • Flood flow - works or structures must not affect floodwater flow capacity.
   • Flood storage - works or structures must not reduce floodwater storage capacity.
   • Freeboard - building floor levels of 0.3m above the 100-year flood level in overland flow paths and 0.6m in floodplains.
   • Site safety - development must not be allowed on properties where the depth and flow of floodwaters would create a hazard, determined to by depths of not more than 0.35m, velocity to be not more than 1.5m/s and the product of depth by velocity is not more than 0.35m2/s.
   • Access safety - any development cannot be allowed in circumstances where the depth and flow of floodwater affecting access to the property is hazardous. The level of hazard is determined by the same depth and velocity criteria for site safety.
3. As can be seen from Table 2, for fringe (flood) flow in existing areas, the Melbourne Water Guidelines recognise that the safety access requirements may be difficult to meet. Under these guidelines, proposals for subdivision are intended to only be considered where the remaining four core requirements can be fully met and there is a reduction in the overall risk applicable to 'Access Safety'. Another consideration is whether the location of a dwelling/building is outside the active flow path. Subdivision developments are also required to consult the Melbourne Water's Land Design Manual to 'obtain standard drainage design conditions'.
4. As I have set out earlier it is Dr Jempson's evidence that while access safety cannot be 'technically' achieved in accord with the Melbourne Water Guidelines, the remaining four necessary requirements for flow, storage, freeboard and site safety can be met and that there is an overall reduction in risk for access safety. His evidence on this last point is based on an assessment of the depth of flow over River Reserve Road against what he considers is appropriate criteria drawn from the Land Design Manual.
5. Dr Jempson's evidence relies heavily on the assessment of flooding by the Corangamite CMA and a number of assumptions he has made about flow conditions. Principle among these is that the subject land and surrounds will behave as a fringe or backwater area of flood flow rather than as part of the active flow channel. He therefore assumes that the velocity of flow will near zero to zero. He also assumes that any flow over River Reserve Road will be largely into or out of the flood fringe area, i.e. cross flow over the road, rather than flow along the road.
6. It is apparent from the flood modelling information provided by the Corangamite CMA that:
   • The subject land and relevant portion of River Reserve Road lie at a bend in the Anglesea River where the gradient of the flood flow (as indicated by flood level contours) indicates that active flood water flows will extend over and move parallel to River Reserve Road at the front of the subject land. Put another way when in flood the active flow path of the river is expected to expand beyond the banks of the river extending over and along River Reserve Road.
   • The flood waters will move some distance westward up and over the Kuaka Dorla as well as over Mr Crawford's land. In order to do so there will be a cross flow current over the road.
   • During rising and falling flood levels, the combination of active channel flow and cross flow will be conducive to the swirling conditions, as suggested by eth Corangamite CMA.
7. Given these conditions, I am not persuaded that it is appropriate to assume backwater conditions of zero to near zero floodwater velocity. Indeed it would appear that the road will be subject to range of flood flow behaviour over the course of a flood event. This would raise the level of hazard along this access route rather than diminish it. It follows that Dr Jempson's evidence about satisfying the tests for not meeting the 'Access Safety' core requirements is not supported.
8. Application of the Melbourne Water Guidelines also requires that if 'Access Safety requirements' cannot be met, all four other core requirements are to be met. Dr Jempson's evidence is that these can be met, not withstanding that he recommends filling of the site to meet 'Site Safety' requirements if not Freeboard requirements as well. His assertion is that approximately 100m3 of fill would be notional and have not adverse impacts on flood storage or flow.
9. The Melbourne Water Guidelines are clear that filling of land within flood prone areas should be avoided. The Corangamite CMA adopts a similar position. While it is acknowledged that a modest degree of fill such as 100m3 might seem inconsequential, the guidelines highlight the need to avoid incremental losses by such small proposals on a lot-by-lot basis. Dr Jempson's cursory review of surrounding land uses and his belief that there is limited opportunity for additional filling and development is unfounded and contrary to the process of sound floodplain management put forward under the guidelines and in State planning policy.
10. The Melbourne Water Guidelines actively seek to prevent loss of capacity for flood flow and storage. It follows from what I have set out earlier that Mr Crawford's land at best sits at the edge of the active flow and thus serves to provide storage and capacity for transmitting active flood flows as well as providing a storage function. In a location where downstream flood flow is restricted by the Great Ocean Road bridge structure, the retention of storage and flow capacity in an upstream location has elevated importance.
11. In all I find Dr Jempson's recommendations to fill parts of the site to be contrary to the relevant core requirements of the Melbourne Water Guidelines as well as to floodplain planning policy. In being contrary to the core requirements, it adds weight against accepting a diminished 'Access Safety' regime.
12. It also follows from my findings about the flood regime, that Dr Jempson's evidence about compliance with the Melbourne Water's Land Development Manual adopts an inappropriate scenario. With flood flows along rather than across River Reserve Road, the appropriate scenario is one where the street acts as a floodway. In such circumstances the Development Manual recommends child safety as the primary test follows by vehicle safety. For a continuous graded road, such as the rising grades to the north or south, a maximum depth for floodwater of 0.42m is recommended with average depths of not more than 0.3m.
13. Dr Jempson agrees that the estimate of wading depth should be taken at the road kerb rather than centre, as is detailed in the Development Manual. It also accords with common sense. Even if it were possible to locate and maintain the centre of a road in murky flood waters, it is still necessary to cross from the kerb to the centre.
14. Sections of the road that would need to be traversed from proposed Lot 2 to dry ground either to the north of the south are predicted to have flood depths of approximately 0.6m. The survey plan of recently filled road verge indicates that in crossing from the front of the property to the road would entail wading through water depths of 0.4 to 0.7m depth. This plan also indicates that the use of the raised cross over along the road verge, currently servicing Mr Crawford's property but also intended to service the proposed lot would be subject to depths of 0.3m to 0.5m. The deepest water would occur near the connection to the road.
15. This range of depths exceeds the safe limit for children, small cars and in some areas exceeds the safe limit for 4WD vehicles. These are unacceptable outcomes.
16. For these reasons I am not satisfied that the access/ingress or egress from Lot 2 maintains an acceptable level of safety for future occupants, visitors or emergency workers. I find that the location is at best subject to marginal access safety conditions but on balance of the likely flood conditions forecast by the 2010 assessment presents an unacceptable level of hazard.
17. Allowing development with such an unacceptable level of hazard is contrary to the to the various planning policy and decision guidelines set out earlier in these reasons.

1. Apart from relying on Dr Jempson's assessment of the flood hazard being manageable and acceptable, Mr Crawford's case proceeds on the basis that his land is located in an area that is nominated in local planning policy to be suitable for more intensive development[12] and that its future development will be the subject of present and proposed planning controls. Mr Crawford's case is thus partly argued on the basis that the future development of the land should be left to decision making under these applicable planning controls and in part that general policy development requirements applying across Anglesea should be 'read down' given the intention for more intensive development in this area of Anglesea with lots of 400m2.
2. There is no argument that Mr Crawford's land is located in an area identified in local policy as suitable for more intensive development. It is also true that the local policy also accords with wider state policy to confine coastal development within existing settlement areas and more intensive development should occur around commercial centres.[13]
3. However even these policies, including those specifically directed toward the intensification of land use in and around Mr Crawford's property do not establish a fait accompli for subdivision of his land into smaller lots.
4. The applicable development policy for subdivision in Anglesea's residential area[14] establishes minimum lot areas. The appropriateness of such a minimum area is to be considered in the context established by the associated objectives of this policy and decision guidelines, which direct decision making about subdivision development to consider of the site's landscape and character values. This is evidenced by the following purposes of the policy:

To preserve and enhance the low density coastal character of Anglesea and retain the sense of houses in a bush setting, whilst providing opportunities for a range of lot sizes.

To maintain a low density of development and sense of space around buildings, unencumbered by hard surfaces to support the preservation and re-establishment of vegetation that enhances screening of the development from adjoining properties and public areas.

To encourage development and infrastructure that retains a non-suburban and informal appearance.

To retain a sense of openness between properties by encouraging the use of open style fencing and vegetation in preference to solid paling fences.

1. Further, the decision guidelines direct attention to:

Whether a larger minimum site area is required to provide sufficient area for a dwelling, associated landscaping and the protection of native vegetation.

Whether adequate provision has been made to ensure the prominence of any future dwelling is minimised when viewed from the Great Ocean Road or any other significant viewing point.

1. Given these overriding policy purposes and guidelines specifically directed toward subdivision applications, I see no need to 'read down' design objectives of a more general nature as suggested in Mr Crawford's submissions. There is a clear intention under this policy to test whether a lot should be allowed down to the minimum area or whether a more responsive subdivision outcome is required.
2. At this point, it is appropriate to note that the above and other policy purposes and design responses under the Anglesea Residential Development policy are to be translated into schedules of the Design and Development and Neighbourhood Character Overlays under Planning Scheme Amendment C79. This amendment has been adopted by the Council and has been submitted for approval by the Minister for Planning. These amendments are therefore seriously entertained planning documents and give weight to the policies as presently contained in the Surf Coast Planning Scheme.
3. Having thus considered this policy (and future likely planning controls) I find that while this land is located in an area that is designated for more intensive development, the specific setting of this land and the requirements of the local policy deserves a more responsive consideration than mere lot size and deferment of any further considerations to future development applications.
4. The setting of Mr Crawford's land is closely linked to the bushland character of the Anglesea River that policy seeks to maintain. The vegetation on this land links with patches of native vegetation along the river reserve, the wide road verge and the Kuaka Dorla Reserve. It is also in a setting where the sense of open space has been maintained by dispersed building form. The values of these site characteristics are given added importance in terms of Anglesea' character by the fact that the land falls within the vista gained from the Great Ocean Road and from pedestrian paths on the east side of the river.
5. Future development of Mr Crawford's proposed Lot 2 would entail more than a mere dwelling. Under Dr Jempson's recommendations, filling across portions of the land would also be required. I agree with the Council that this would have a much wider impact on vegetation losses and landscape values than suggested by Mr Crawford. Such an impact would diminish the bush setting and sense of openness that Scheme's development policy (and future development controls) seeks to maintain for such a prominent site. As such it would be an outcome contrary to this policy and to the character of the area. These are not supportable outcomes under the Scheme.

1. My findings about the flood conditions at this location lead me to conclude that the level of hazard would be unacceptable to future occupants, emergency workers or other people who would have cause to access any future dwelling on Lot 2 during flood events. This is a threshold issue and is sufficient reason to refuse the grant of permission to subdivide the land.
2. The exposure to the flooding is also a significant constraint on the future development of this land that impacts on the other planning matters in issue. To achieve safe occupation of the proposed Lot 2 would require ground works well beyond the footprint of the dwelling resulting in development impacts on vegetation and landscape character that would be contrary to applicable local development policy. This adds weight to the reasons for refusing this proposal a permit.
3. Accordingly, I will affirm the decision of the Responsible Authority and direct that no permit be granted.

1. Mr Crawford seeks costs pursuant to section 109 of the Victorian Civil and Administrative Tribunal Act 1998. He seeks a quantum of almost $4,000 from the Corangamite CMA on the basis that this authority's conduct caused an adjournment with consequential additional costs from his legal representation and Dr Jempson. The cost claim also includes the second day hearing fee.
2. It is alleged that the Corangamite CMA's conduct caused the adjournment and unreasonably prolonged the conduct of the proceeding because it:
   • wrote to the Tribunal on the eve of the hearing;
   • raised a matter (about Coastal Acid Sulphate Soils) that it had not raised previously; and
   • failed to attend the hearing to support the matters it raised,
3. As a result of these actions it is said that the Corangamite CMA 'forced' the Tribunal to adjourn the proceeding.
4. Mr Carey submits that the Corangamite CMA is an experienced statutory body that is expected to understand the planning process and conduct itself as a 'model litigant'. In other words, it should have conducted itself in a manner that did not cause an adjournment or delay the proceedings.

1. The underlying requirement in section 109 of the VCAT Act is that the Tribunal may only award costs if it is satisfied that it is "fair" to do so and after having regard to those matters set out under section. 109(3). The general rule is however, that each party bears its own costs as established under section 109(1).
2. Sections 109(3)(a) and (b) sets out matters that may be considered that generally pertain to the behaviour of a party in the proceeding. Other matters that can also be considered relate to the strength of claims being made by a party, the complexity of the proceeding or any other matter the Tribunal considers relevant. Mr Crawford's claim are made on the basis of sections 109(3)(a)(iv) - causing and adjournment - and 109(3)(b) - 'prolonging unreasonably the time taken to complete the proceeding'.
3. The reference by Mr Crawford to late correspondence to the Tribunal is a reference to a letter prepared by the Corangamite CMA in response to Dr Jempson's statement of expert evidence. That letter is dated 17 June 2013 and is addressed to a senior statutory planning officer from the Responsible Authority who had carriage of the application. The letter is copied to Mr Crawford and to VCAT.
4. It can be ascertained from this letter that:
   • The council referred Dr Jempson's witness statement to the CMA for its comment.
   • The letter was prepared in the context of assisting the Council respond to Dr Jempson's evidence.
   • It was not a letter directed to the Tribunal in the first instance and nor did this letter seek to be read as a formal submissions to the Tribunal.
5. It is evident from the remarks of Member Sibonis in his order adjourning the proceeding that the letter from the Corangamite CMA, coupled with its lack of attendance and the raising of the issue about acid sulphate soils led him to adjourn the proceeding and to join the Corangamite CMA as a party and direct it to attend the hearing. However I do not accept that the letter 'forced' this outcome upon the Tribunal.
6. The letter's purposes appears to have been to provide advice, principally to the Council to assist it in preparing for the proceeding. The Corangamite CMA neither sort to attend the hearing or to be joined as a party.
7. It was only after considering various submissions from the Council and Mr Crawford as to how to deal with this letter and the matters raised by it that the Tribunal that elected to adopt the course of action that resulted in the adjournment.
8. I acknowledge that this letter did indeed raise a response from the Corangamite CMA about the potential presence of acid sulphate soils that had not been raised by it in previous advice. However I note that:
   • The council's engineers had raised a similar concern about the same issue in its assessment of the application. Thus it was not necessarily a new issue.
   • The CMA's raised the issue of in response to Dr Jempson's evidence that filling of the site to alleviate the flood risk issues. This I note was a response that Mr Crawford's application had not canvassed earlier and so there was no need for the CMA to raise this issue.
9. Like many applications before the Tribunal, matters tend to arise as the details of a proposal are fleshed out. Just as Dr Jempson raised a new prospect about filling, so the Corangamite CMA can be seen to have responded to this additional information. Its response to possible filling of the site can be seen to be appropriate in performing its role to inform the Council (and the Tribunal) about relevant matters. In doing so, it complied with Tribunal practices of ensuring all parties were properly informed of all relevant issues. As I said earlier however, this authority did not seek to be joined nor seek an adjournment because of its inability to attend on the day of the June hearing. The decision to adjourn the hearing rests ultimately with the Tribunal.
10. To award costs against a party because it caused an adjournment, I must be satisfied that:
    • It is fair to do so; and
    • The adjournment unnecessarily disadvantaged Mr Crawford.
11. Apart from the delay in the hearing of his application, Mr Crawford has not pointed to any disadvantage caused to him or to his case by the adjournment. Indeed the adjournment provided time for him to further consider the Corangamite CMA's response to Dr Jempson's evidence.
12. I also do not think it fair that an authority, in carrying out its duty to inform the Council and the Tribunal to the best of its ability should subsequently incur a penalty of costs for doing so. This is the more so when the nature of earlier referrals had been informal and the nature of the referral of Dr Jempson's witness statement to it as a request for assistance was of a similarly non-statutory informal request. Its role at this time can be seen to one of providing assistance to the Council and subsequently the Tribunal.
13. In terms of the basis of delaying the proceeding, having elected to adjourn the hearing, the Tribunal acted to ensure a respectable recommencement of the proceedings at the earliest convenience. This occurred within four weeks of the adjournment. In the overall scope of the proceedings, the application having been made in January 2013, the additional lapse of four weeks I do not consider to be unreasonable.
14. It follows that I do not find there is cause to award the costs sought by Mr Crawford against the Corangamite CMA. The application for costs is therefore dismissed and I shall direct that each party shall bear its own costs.

[5] Section 52 of the Planning & Environment Act 1987.

[6] In a letter dated 26 September 2012 and a subsequent letter of 16 November 2012 in response to updated survey information from the permit applicant.

[7] The present extent of the overlay lies to the east of River Reserve Road, following the path of the Anglesea River.

[8] That is a flood event with a 1 in 100 year Average Recurrence Interval.

[10] In its advice of June 2013 the Corangamite CMA indicates that the land is sufficiently separated from the influence of coastal sea level rise that it considers that under applicable future climate scenarios the flood level of 2.4mAHD should also be adopted.

[11] He bases his evidence on survey levels of the existing access to Mr Crawford's property, to which the new lot would be tied, as well as survey levels of River Reserve Road.