Ms Fiona Crowley, Town Planner, appeared on behalf of the Responsible Authority, Macedon Ranges Shire Council.

The Respondent/Objectors who either appeared on their own behalf or on behalf of themselves and other Respondent/Objectors were:

Written submissions were received from the following Respondent/Objectors:

Mr John Cicero, Solicitor of Best Hooper, Solicitors appeared on behalf of the Permit Applicant, Mr Wayne Davies. Mr Cicero called Mr Giovanni Gattini, Consultant Town Planner, Mr Michael Durkin, Consultant Traffic Engineer, and Ms Alida McKern, Landscape Architect, as witnesses in support of his submissions.

The parties and the witnesses in the appeal made both written and verbal submissions and a number of plans and other documents were tendered to the Tribunal.

Macedon Ranges Planning Scheme - Chapter 2 / Rural Zone.

The following extracts from Ms Crowley's submission on behalf of the Responsible Authority describes the site and locality in some detail:

"Attached as Appendix No 1 and Appendix No 2 are plans of the locality. These plans show the layout of lots in the surrounding area and the location of the land.

The subject land has an area of 21.70 hectares and has frontage to both Barringo and Wooling Roads. The site is currently used for both commercial and residential purposes and contains a dwelling, caretaker's house, reception centre and gallery, all of which are operational.

The site forms the northern slope of Wooling Hill and is therefore quite elevated. The site contains little established vegetation, however, there are some 2-4 metre high eucalypts planted along the boundary of the property and scattered around the site. There is also an existing dam in the north west corner of the site. There are currently vines planted in front of the dwelling which extend down to Barringo Road.

The existing house is a very substantial two storey building and is sited to the east of the site at the highest point and is therefore very prominent within the hill and can be seen from any surrounding roads and properties. The existing reception centre, gallery and caretakers house are all sited to the south west of the allotment and are therefore not as visible as the existing dwelling.

The site also contains an existing private cemetery which is of local heritage significance and identified in the Macedon Ranges Cultural Heritage and Landscape Study (MRCHL). The cemetery is fenced and has plantings of cypress trees and hawthorns, all of which are of local significance. The cemetery is believed to hold members of the Robertson family who were the original Wooling Hill residents in the 1840s (Appendix 3 - extract from MRCHL Study). The National Trust has advised Council that the property was nominated to the National Trusts register some years ago but an assessment of its significance has not yet been completed. Nevertheless, the National Trust have advised Council that they believe the Cemetery to be a significant site.

Aboriginal Affairs Victoria have advised Council that there are apparently historical records dealing with the Wooling Hill area which refer to it as a site of ceremonial importance to the local Aboriginal people, and a meeting place for neighbouring clans. There is also reference to Aboriginal archaeological sites including a scarred tree however, this tree has not been registered with Aboriginal Affairs Victoria."

The proposal is to use some 15.7 ha of a 21.7 ha site for the purpose of a memorial park set in an exotic formal garden. The main features of the concept plan describing the application are a winding circular road joining at a single entry on Barringo Road, car parking for some 325 vehicles, all set in a large formal garden incorporating a number of lakes all of which is to be developed in stages over a relatively long timeframe and used a a memorial park. Attachment 1 is an extract from Mr Gattini's submission which described the proposal in some more detail.

At the commencement of the hearing Mr Cicero sought to amend the permit application (and the Application for Review to some degree) partly to attend to some minor matters, but also partly to address the inherent uncertainty in this unusual and long term proposal. Mr Cicero requested that the Permit Application and the Application for Review be amended so that Mr Wayne Davies becomes the Applicant in both cases. Mr Cicero also requested that the Permit Application be amended to delete any reference to an extension to the existing dwelling for the purpose of a chapel, and so that the Permit Application in respect of use applies to the whole site, but the Permit Application in respect of development only applied to the Stage I development. Mr Cicero submitted:

"The objectors contend that once a Memorial Park establishes it is an easy step to then establish a cemetery which would include a crematorium and burials. To put the issue beyond doubt, the Permit Applicant is prepared to enter into a Section 173 Agreement under which he covenants that he will not use or develop the land for the purpose of a cemetery.

The Permit Applicant acknowledges that there is a certain amount of scepticism and mistrust concerning the proposal with an underlying view that the proposal would not financially succeed and the result could be a blight on the landscape.

In order to establish its bona fides the Permit Applicant propose the following:

(i) That the Tribunal grant approval in principle for the use of the entire application site for a Memorial Park.

(ii) That the permit for the development relate only to Stage I.

(iii) That development of the site beyond Stage I could only proceed subject to the grant of a further planning permit.

(iv) That a bond in the nature of a bank guarantee be provided in favour of the Council to ensure that if the Permit Applicant failed to complete the development approved of as part of Stage I within two years from the commencement date of development, that the Responsible Authority would have the right to call upon that bank guarantee and reinstate that part of the application site disturbed as part of the works approved in Stage I to as near as possible the condition it was in prior to commencement of the works. The amount of the bank guarantee should reflect the cost of reinstating the land to be developed as part of Stage I to its present condition to the satisfaction of the Responsible Authority. If there is any dispute about that amount then the Tribunal could determine the dispute on reference pursuant to Section 149A of the Planning and Environment Act.

(v) Obviously a permit would not be granted for the next stage of the development unless and until the first stage had been completed to the satisfaction of the Responsible Authority."

In broad terms Stage I involves the circular road, the perimeter and interior wind break plantings, and the first stage of the formal garden, which is essentially located around and in front of the existing house.

The Tribunal ordered the amendment of the Permit Application, and the Application for Review in accordance with Mr Cicero's request.

The Permit Application was first submitted to the Responsible Authority in May 1998. The application was referred to the Department of Natural Resources and Environment, Western Water Authority, VicRoads, Environment Protection Authority, Aboriginal Affairs Victoria, The Department of Human Services, and to the Responsible Authority's own infrastructure unit, health unit, heritage adviser and building unit. All these authorities and referees consented to the proposal, subject to conditions.

The Council required the application to be advertised, and some 54 objections were submitted to the Responsible Authority including a petition with 473 signatures. The Responsible Authority in June 1998 requested the Permit Applicant to provide additional information, and in response only some of the additional information was provided, as the Permit Applicant argued that this proposal was an unusual long term proposal and that a number of the matters raised in the Responsible Authority's request would be better dealt with by permit conditions for implementation over the life of the project.

The Responsible Authority then considered the proposal and decided to issue a notice of refusal to grant a permit in September 1998 for the following reasons:

1. The proposal would result in an overdevelopment of the site.

2. The proposal is contrary to the rural zone provisions as set out in Chapter 2 of the Macedon Ranges Planning Scheme.

3. The proposal does not comply with Macedon Ranges Planning Scheme - Chapter 2, Incorporated Document No 5 "Environmental Management Guidelines".

4. The proposed use and development is inappropriate on this site.

The following extract from Ms Crowley's submissions summarise the planning scheme provisions as a part of this proposal. It should be noted that the definition of Memorial Park, and its insertion as a permissible use within the zone was as a result of a planning scheme amendment approved to allow this permit application to proceed. The inclusion of a memorial park within the zone provisions was not intended to pre-empt the decision on the merits of the proposal on this site.

"The subject land is zoned "Rural" under the Macedon Ranges Planning Scheme - Chapter 2.

- Maintain the land in sustainable, broad hectare, rural use.

- To ensure that land use and development is appropriate to the area and maintains the natural resource, amenity and environmental values of the non urban areas and encourage both the retention of existing vegetation and revegetation.

- To maintain and enhance the landscape character of the non urban areas and encourage both the retention of existing vegetation and revegetation.

- To provide for well planned sustainable small lot subdivision compatible with the above objectives.

- To provide opportunities for use compatible with, and ancillary to, the primary purpose of the zone.

A memorial park is a use, which requires a permit in this zone. The definition of a memorial park provided by the Planning Scheme is as follows:

"Memorial Park means a landscaped garden area used primarily for the placement of ashes and the erection of monuments and may include ancillary buildings and works including a chapel in which funeral services may be held, and a car park. It does not include a cemetery or crematorium."

Clause 2 of the rural zone also sets out performance criteria for use and development of land to comply with. The criteria relates to:

A copy of the Planning Scheme map is attached at Appendix 4.

Relevant incorporated documents to the Planning Scheme are Incorporate Document No 5 Environmental Management Guidelines and Statement of Planning Policy No 8 Macedon Ranges and Surrounds.

Part of the land is in the Rosslynne Reservoir (Riddells Creek) water supply catchment area. The whole of the land is within the Port Phillip Catchment area.

The land is proposed to be zoned Rural in the draft Macedon Ranges Planning Scheme. In that zone, a permit will be required for a Memorial Park and application can also be made for a crematorium or cemetery, both of which are prohibited, in the current Planning Scheme. The land is also proposed to be covered by an Environmental Significance Overlay for Water Catchments and a Salinity Management Overlay. Council has recently received its report from the panel and there are no recommendations to alter the proposed zoning of this land other than a requirement to re-map the Salinity Management Overlay."

This proposal is unusual in a number of respects not the least of which is that it is believed to be the first privately owned and operated memorial garden in Victoria. However, even in a statutory planning sense the proposal is somewhat unusual in that it is proposed to develop a large formal garden on the site, in a series of stages, over a long time period, a development which would not normally require permission and to use this garden for the purposes of a memorial garden. As a consequence of this it is possible to neatly separate the issues relating to this proposal to issues which primarily relate to the use of the land, and to issues which relate to its development as a garden.

It was submitted that the proposed use is an inappropriate use of rural land having regard to the provisions of the planning scheme both in respect of the zone and in respect of the incorporated documents referred to by Ms Crowley. The Tribunal does not believe that these arguments are sustainable. The land is not in agricultural use, and it would appear has not been in effective agricultural use for many years. This proposal does not seek to return it to such a use, but it is not going to result in agricultural land being lost to agricultural use. Moreover, while the planning scheme amendments which introduced a memorial park as a permissible use within the zone cannot be said to have addressed the question of whether or not this particular site is suited for that purpose, it must be regarded as having been based on a conclusion that a memorial park is, in appropriate circumstances, a reasonable use of rural land. Therefore because the proposal does not result in the loss of land from agricultural production, and because it is for use which is considered reasonable within the context of the zone, it is not considered to be inconsistent with the orderly planning of the locality.

The surrounding area is quite heavily settled, and indeed could probably be regarded as being rural residential rather than entirely rural in character. As a consequence of this it was argued that the use was inappropriate because of the psychological effect it would have on the local community. It was argued that a memorial garden would be a constant reminder of death, and that this would have an adverse psychological effect on the local community and thereby damage their amenity.

It is considered that this is not a reasonable apprehension. Cemeteries are normally a part of both urban and rural communities, and while in a sense they are a reminder of death, for the reasonable person this is just one of the many things in life which reminds us of our humanity. If a cemetery is a reasonable use of land within any community, this must be even more true of a memorial garden, because of its low key characteristics and the absence of prominent monuments and tombstones that draw direct attention to its purpose.

The Tribunal was provided a brief report from a consulting psychiatrist, the report was necessarily very general, and it is considered that it was not particularly helpful in forming any views about the impact of a memorial garden in a rural residential community.

There was considerable concern about the traffic implications of the proposed use, and because of the unusual nature of the use it is not entirely possible to be absolutely sure of its ultimate traffic effects. However, in the Tribunal's view, Mr Durkin has made a very creditable attempt to formulate a basis upon which to analyse the traffic effects of the proposal. It is considered that his approach is undoubtedly conservative, and his conclusion that the traffic and parking implications of the proposal are not likely to compromise the amenity of the locality is accepted.

There were a number of submissions in relation to the viability of the use, in part based on the capacity of the permit applicant to complete the project, and in part based on the absence of regulation for private memorial gardens, and therefore if you like what "consumer protection" was available to future "customers", to guarantee the long term availability of their memorial.

In relation to the first aspect, that is the capacity of the permit applicant, it must be said that this is not a matter which is normally examined by the Tribunal. However, Mr Cicero has addressed this issue to a substantial degree by his undertakings on behalf of his client in respect of the provisions of bank guarantees for reinstatement if Stage I fails. While in the long run it is an expensive project, it can be completed in stages over a very considerable timeframe. Stage I, will however include some expensive features, in particular the ring road, which will become common to all future stages. Nevertheless, the cost of these works is relatively easy to establish, once detail engineering design is prepared and these costs will ultimately influence the Permit Applicant's decision whether or not to proceed. The public interest is protected by the guarantees which are to be entered into.

In relation to what could be described as the "consumer protection" issue, it is considered that this is not an issue that can properly be addressed by this Tribunal. Under the provisions of the Planning and Environment Act the Tribunal may consider social and economic considerations, and this issue clearly includes elements which are both social and economic. Nevertheless, this is primarily a Planning Tribunal, and a good test to be applied in determining whether or not a particular issue is of relevance, is to ask the question, is there any particular spatial implication arising from the particular social and economic consideration. There are no spatial considerations here and the Tribunal is of the view that the regulation of private cemeteries and memorial gardens and the like is a matter for Government and not the tribunal or the planning system.

An underlying concern of the Respondent/Objectors is that this proposal is the thin end of the wedge, and that once the new planning scheme provisions come into operation, an application could be made for a crematorium on the site. The Permit Applicant has sought to lay this matter to rest by undertaking to enter into an agreement contracting that the Permit Applicant would not apply for such a use. It is considered that the simple answer to this question, is that a crematorium would require a planning permit, and that the proper place to examine the question of whether or not a crematorium should be established on the site is a context of such an application. It is not the subject of the permit application before this Tribunal.

In the Tribunal's view the most significant development issue was the impact of the proposed garden on the landscape character of the locality. It was submitted that large exotic gardens of this type were a feature of the southern face of Mt Macedon and nearby areas, and would be a foreign and inappropriate intrusion into this landscape at New Gisborne. It is true that the landscape character of this locality is different to that of the southern face of Mt Macedon, but the Tribunal's inspection revealed that it is a rural landscape upon which the effect of a long history of European settlement is clearly evident. Moreover, the landscape plan prepared by Ms McKern proposes perimeter plantings of native vegetation, with the more structured land and exotic parts of the garden being established within the protection of these perimeter plantings. It is the Tribunal's opinion this is an appropriate solution to the landscape character of the site.

Other developmental concerns related to the risk of erosion, and questions relating to water quality and water availability for the proposed ornamental lakes.

The Tribunal has formed the opinion that these concerns are seriously overstated. From a development perspective the proposal involves the creation of a garden, which will ultimately result in a highly managed environment. Therefore, if the proposal succeeds there is very little risk of environmental damage, and if the project fails Mr Cicero's system of guarantee should ensure that the site can be appropriately reinstated.

There are a number of existing roads on the site just as there are roads and tracks on nearby land. It would be a relatively straightforward matter of sound engineering design to produce an acceptable road in the form proposed by this permit application. Similarly the storage dams, and the ornamental lakes associated with Stage I are all relatively straightforward engineering projects. The Permit Applicant accepts that any permit will of necessity require the preparation of an engineering design of these aspects of the garden which must be satisfactory to the Responsible Authority before it can proceed. In the absence of any argument that such works are not feasible from an engineering perspective, this seems to be the appropriate approach.

There are a large number of submissions in relation to the question of the quantity and quality of water to be used in the establishment of the garden. The original concept of the garden which accompanied the application showed a very large number of ornamental lakes. Mr Cameron's submission included a brief report by an environmental scientist in relation to the feasibility of using recycled water in ornamental lakes.

However, it seems to the Tribunal that notwithstanding these arguments the simple answer to the question of availability and quality of water for the ornamental lakes is in the staging of the development of the garden. When Stage I, of the garden is complete, the permit holder will have an opportunity to fully understand the difficulties, if any, of maintaining ornamental lakes on this land. If for example it becomes apparent that the ornamental lakes will require excessive volumes of expensive imported water, alternatively that the quality of the recycled water is inappropriate for ornamental lakes, or requires excessive dilution by water harvested on the site, then the number and size of ornamental lakes employed in a later stages of the garden can be modified accordingly.

The proposed garden may have to rely on recycled water, particularly in drier conditions. Recycled water will have quite high levels of nutrients, and it would be inappropriate for this water to escape into local waterways. The water is to be used to irrigate the garden, or to top up the ornamental lakes when required. It is highly unlikely that this recycled water will ordinarily be discharged off the site. In wet conditions when water will run off the land, as is presently the case, any recycled water currently within the system of dams and lakes on the site, might be mixed into these discharges, but will be highly diluted in these conditions.

It is the Tribunal's conclusion that the development of a large garden on this site is not inappropriate in the context of this locality and the planning scheme provisions. Moreover, the use of this developed garden for the purposes of a memorial park is also an appropriate use of the land in the context of the locality and the planning scheme provisions.

The Responsible Authority is directed under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 to issue a permit which allows the use of land at 65 Barringo Road, New Gisborne, for a Memorial and for the development of Stage I of the Memorial Park, both generally in accordance with the endorsed plans and subject to the following conditions:

1. Prior to the commencement of the development hereby permitted -

1.1 Amended plans must be submitted to and approved by the Responsible Authority. These plans must be in substantial accordance with the original plans submitted but must be amended to show:

* Detailed plans of Stage I including the siting of lakes, drainage lines and watercourses plotted on a topographic map including cross sections where appropriate to indicate scale and nature of earthworks;

* Detailed plans indicating the depth and water holding capacity of lakes;

* Detailed management plan for the whole of the site indicating tenure of plots, management of landscaping, existing reception centre, gallery etc and protocol for memorials i.e maximum height/width;

* Elevation plan of the proposed signs showing colours and wording, dimensions including height, whether the sign is on poles and the source and location of any proposed external illumination;

* A landscape plan for the whole of the land (3 copies) prepared by a suitably qualified landscape architect, showing planting layout, schedule of species, edging and pavement treatment details, any irrigation system proposed;

* Construction plans for all works, including landscape works prepared by a qualified civil engineer;

to the satisfaction of the Responsible Authority. An endorsed copy of these plans shall form part of this permit.

1.2 There shall be lodged with the Responsible Authority a bank guarantee in favour of the Responsible Authority which the Responsible Authority would have the right to call upon if the development hereby permitted was not completed to the satisfaction of the Responsible Authority within the time specified in this permit or such other time that the Responsible Authority may approve. The amount of the bank guarantee shall be to the satisfaction of the Responsible Authority and shall reflect the cost of reinstating that part of the land that would be affected by the development permitted to its present condition to the satisfaction of the Responsible Authority.

1.3 The owner of the land shall enter into an agreement pursuant to Section 173 of the Planning and Environment Act under which he covenants that the land shall not be used for developed for the purpose of a cemetery or crematorium. The agreement shall otherwise be on terms to the satisfaction of the Responsible Authority.

1.4 The existing cemetery on the land shall be protected to the satisfaction of the Responsible Authority to ensure that it is not damaged by either the development or the use hereby permitted.

2.1 All reasonable legal costs associated with any preliminary works including title searches associated with the preparation of a draft Section 173 Agreement, and

2.2 All reasonable legal costs associated with the final preparation, execution, stamping and lodging of the agreement.

3. The size of plaques or other non-vegetation identification means shall be limited to 300mm x 300mm.

4. If any recycled water is to be used on the site, prior to its use there shall be submitted to the Responsible Authority a certificate from a qualified Environmental Engineer specifying that the water is appropriate for the purpose for which it is proposed to be used.

5. The use authorised by this permit shall not commence, and no works may be undertaken, until the following requirements have been met to the satisfaction of Aboriginal Affairs Victoria and the Responsible Authority -

5.1 The applicant is to fund a survey to locate, record and assess Aboriginal sites, places and objects in all land likely to be affected by the development, including land which may be disturbed by associated works such as new access roads, buildings and services;

5.2 The applicant is to undertake and fund any archaeological sampling or salvage excavations, which may be recommended as a result of the above mentioned survey, subject to the endorsement of such recommendations by Aboriginal Affairs Victoria;

5.3 No Aboriginal cultural materials may be disturbed or destroyed without prior written consent from the relevant local Aboriginal community, as nominated for the purposes of the (Commonwealth) Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

5.4 Prior to the disturbance of any identified Aboriginal site, place or object, the applicant is to seek and obtain written consent to disturb from the relevant local Aboriginal community, as nominated for the purposes of Part IIA of the (Commonwealth) Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

6. The following shall be undertaken to the requirements of Council Heritage Advisor and satisfaction of the Responsible Authority:

6.1 A detailed conservation works plan for the existing historic cemetery must be submitted to and approved by the Responsible Authority.

6.2 The proposed fence at the entrance to the property shall be transparent and the piers rendered to match the existing and proposed buildings.

7. The following shall be undertaken to the requirements and satisfaction of the Responsible Authority:

7.1 The property shall be adequately drained to the satisfaction of the Responsible Authority, to a legal point of discharge to be nominated by the Responsible Authority;

7.2 Vehicular crossovers are to be provided and constructed to the satisfaction of the Responsible Authority. Vehicular crossovers are to be a minimum of 9 metres from any intersection;

7.3 The driveway shall be designed to allow all vehicles to enter and exit the site in a forward direction;

7.4 The owner/applicant be required to construct a sealed bypass lane opposite the proposed access in accordance with plans submitted to and approved by the Responsible Authority prior to the commencement of the use.

7.5 That the dams/lakes be designed and constructed to discharge to a legal point of discharge, to be nominated by the Responsible Authority to the satisfaction of the Responsible Authority and such that there is no potential for erosion.

8. Concrete kerbs or other such form of barrier as the Responsible Authority may approve, of sufficient height to prevent the passage of vehicles, must be provided between landscape areas and areas provided for the parking or passage of vehicles to the satisfaction of the Responsible Authority.

9. All roads, drives and paths must be constructed and maintained to the satisfaction of the Responsible Authority so as not to cause or increase the erosion of soil on the subject site or on adjoining land.

10. The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan shall:

10.1 Be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the use hereby permitted;

10.2 Thereafter be maintained to the satisfaction of the Responsible Authority;

10.3 Be made available for such use at all times and not used for any other purpose;

10.4 Be properly formed to such levels that it can be used in accordance with the plan;

10.5 Be drained to the satisfaction of the Responsible Authority;

10.6 Have the boundaries of all vehicle spaces clearly indicated on the ground in conformity with the endorsed plan.

11. The layout of the site and the size, and internal layout of the buildings and works as shown on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.

12. The use and development of the site must not cause material detriment to any person or on the amenity of the area by reason of the emission of noise, dust, smoke, vibration, the appearance of property or otherwise, and the conduct of the use shall, at all times, be to the satisfaction of the Responsible Authority.

13. The premises must only be used for the use hereby permitted between the hours of:

9.00 am to 5.00 pm (inclusive) from April to October and

9.00 am to 7.00 pm (inclusive) from November to March.

These hours must not be varied, changed or extended without the prior written permission of the Responsible Authority.

14. All external cladding and trim of the proposed buildings (walls and roof) must be of a non-reflective nature. Cladding materials must be colour coated in muted shades of green, brown or in colours satisfactory to the Responsible Authority and must be maintained to the satisfaction of the Responsible Authority.

15. The operation of this use must at all times be in accordance with the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2.

16. No sign(s) or any part of it is to be located outside or over the boundary of the site.

17. No liquor licence or permit for the consumption of alcohol is to be held for the premises and there must be no provision for live entertainment within the proposed tearooms.

18. All external lighting of the site must be baffled to ensure that direct light is not emitted outside the site, to the satisfaction of the Responsible Authority.

19. The building/dwelling shall e fitted with an all-waste septic tank system to a design approved by the Health Surveyor and such that all effluent is disposed of within the boundaries of the allotment. A separate permit must be obtained from Council prior to its installation.

20. The following shall be undertaken to the requirements and satisfaction of Western Region Water Authority;

20.1 An on-site waste water treatment and disposal system shall be installed and maintained in conformity with the Septic Tank Code of Practice, January 1990.

20.2 Without the prior written consent of the Western Region Water Authority, no further buildings or works shall be undertaken on the subject land.

21. The site must be secured in the evenings to restrict vehicle access into the site when not in use.

22. This permit shall expire if the development hereby permitted is either not commenced within two years from the date hereof or not completed within four years from the date hereof or within any extension of those times upon which application is made before or within three months after the expiry of the permit is granted in writing by the Responsible Authority.