With respect to permit application P76/2006, the Responsible Authority's decision to refuse to grant a permit is set aside.

A permit is granted for the construction of a dwelling and associated vegetation removal at 5-7 Shoreline Drive, Glomar Beach generally in accordance with the endorsed plans and subject to the following conditions:

1 The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

2 The external fabric, including roofing, of the buildings hereby permitted shall be of muted tones to blend with the environment and preserve the aesthetic amenity of the area.

3 All stormwater runoff from the roofed and any paved areas must be discharged to a tank or vegetated area to minimise accelerated soil erosion, to the satisfaction of the Responsible Authority.

4 The landowner must provide a permanent water supply for the property comprising at least 12,000 litres for domestic and the same for fire fighting purposes, to be located within the property.

5 The landowner must provide a permanent form of electric power to service the subject property to the satisfaction of the Responsible Authority.

6 The wastewater treatment system and other recommendations contained in the expert evidence report of Mr P Medhurst dated July 2006 must be implemented to the satisfaction of the Responsible Authority.

7 Effluent disposal areas must be left undisturbed and planted with shallow rooting grasses and/or shrubs suitable for conditions at Glomar Beach.

8 Naturally occurring surface water from rainfall events must be diverted from the effluent disposal areas at all times, to the satisfaction of the Responsible Authority.

9 Any removal of native vegetation must be confined to the permitted works area for the house. Vegetation outside this area must not be removed, damaged or destroyed other than in accordance with the provisions of the Planning Scheme.

10 Any garden development must involve the planting of local indigenous plant species, which will assist in maintaining the conservation values of the property.

11 The applicant is required to construct a vehicular crossing to service the property shown on the application to the satisfaction of the Responsible Authority.

12 This permit will expire if the development is not completed within four years of the date of this permit. The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires or within three months afterwards.

The Responsible Authority is ordered to issue a permit in accordance with this determination pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

1 This site is located in a 1950s/1960s subdivision along the Ninety Mile Beach that stretches from Seaspray and The Honeysuckles in the southwest to Golden Beach and Paradise Beach in the northeast. The site is situated at Glomar Beach, which is approximately 11 kilometres northeast of Seaspray. It has an area of 2,988 square metres and contains some patches of land that are relatively devoid of any vegetation.

2 The proposal is to construct a single storey two bedroom timber dwelling on stumps in a basic rectangular style with a gabled roof.

3 Upon receipt of the permit application, the Wellington Shire Council ('the Council') referred it to two internal departments and then determined to refuse it, under delegation. The 6 grounds of refusal state the application is contrary to clauses 15.07, 15.08, 21.04, 21.05, 42.01 and the recommendations of the Wellington Coast Subdivision Strategy endorsed by Council in September 2005.

4 This application seeks a review of the Council's decision.

5 The Tribunal directed the application to be publicly advertised to surrounding property owners/occupiers and no objections were received.

6 The hearing was held locally at the Council's offices in Sale.

7 At the start of the hearing, the Council advised it did not have any cross-examination for Mr P Medhurst, who was to be called by Ms Wilson to give expert evidence in regard to a land capability assessment. As a result, Mr Medhurst's evidence was accepted and there was no need for Mr Medhurst to be called to give his evidence in chief.

8 At the end of the hearing, I inspected the site and surrounding area unaccompanied.

9 The starting point for consideration of the merits of this proposal is to understand why a planning permit is required. The site is zoned Low Density Residential and is affected by a Restructure Overlay and an Environmental Significance Overlay Schedule 1 under the Wellington Planning Scheme ('the Planning Scheme').

10 No planning permit is required for the use of the site as a dwelling under the zoning provided two conditions are met:

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Must be the only dwelling on the lot

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Must meet the requirements of clause 32.03-2

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Each dwelling must be connected to reticulated sewerage, if available. If reticulated sewerage is not available, all wastewater from each dwelling must be treated and retained within the lot in accordance with the State Environment Protection Policy (Waters of Victoria) under the Environment Protection Act 1970.

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Each dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply, with appropriate storage capacity, to the satisfaction of the responsible authority.

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Each dwelling must be connected to a reticulated electricity supply or have an alternative energy supply to the satisfaction of the responsible authority.

12 If the conditions in the zone provisions and the above requirements are met, no permit is required for the use or development of a dwelling on this site.

13 A permit is required for the construction of a dwelling under the Restructure Overlay. A permit must be in accordance with a restructure plan for the land listed in the schedule to this overlay, and the decision guidelines that must be considered are:

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The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

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The objectives of the restructure plan for the area.

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Appropriate measures to cope with any environmental hazard or constraint affecting the land, including slope, drainage, salinity and erosion.

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The protection and enhancement of the natural environment and the character of the area including the retention of vegetation and fauna habitats and the need to revegetate along waterways, gullies, ridge lines and property boundaries.

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The availability of utility services, including sewerage, water, drainage, electricity, gas and telecommunications.

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The relationship of the intended use and development to the existing or likely use and development of adjoining and nearby land.

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The effect on surrounding uses, especially agricultural uses and nearby public land.

•

The design of buildings.

14 A permit is required under the Environmental Significance Overlay Schedule 1 (Coastal and Gippsland Lakes Environs) to construct a building, carry out works and to remove, destroy or lop any vegetation, other than ground fuel within 30 metres of a building.

15 So, in summary, a permit is required for the development of a dwelling under the Restructure Overlay, and to construct a building, carry out works or remove vegetation under the Environmental Significance Overlay. A permit is not required for the use and development of a dwelling under the zoning of the land if the specified conditions and requirements are met.

16 The history of the area containing the review site is of paramount importance in understanding the reasons why the Council has refused this proposal.

17 Ms Cahill explained around 11,800 lots were subdivided along the Ninety Mile Beach between 1955 and 1969 when there were no planning controls or policies in place. The subdivision created lots of around 600 square metres on the understanding normal utility services, such as water, sewerage and electricity, would be provided. However, no services have been provided to the majority of the lots (other than electricity and telephone services at the southwest and northeast ends of the subdivided area). Ms Cahill stated the dilemma of attempting a residential development with no reticulated services in a highly fragile coastal and estuarine environment was recognised by the Town & Country Planning Board in 1973; and, in 1978, the State Government initiated a study which resulted in a series of restructure plans to re-parcel the lots into larger land areas capable of treating and disposing of domestic waste within its boundaries These restructure plans were adopted in February 1979 and remain as the restructure plans contained in the schedule to the Restructure Overlay in the current Planning Scheme.

18 In January 1982, planning control for the Ninety Mile Beach area passed to the then Shire of Rosedale and a buy-back program involving lots deemed to be environmentally unstable and unsuitable for any form of development was initiated. Ms Cahill advised that now, many years later:

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15% (around 1,600 lots) have been restructured;

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about 35% (4,300 lots) are subject to flooding;

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2% (300 lots) are subject to a stalled buy-back scheme as Government funding is no longer available; and

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48% (5,600 lots) have not yet been restructured.

19 The review site has been restructured (in 2003) in accordance with the restructure plan contained in the Restructure Overlay schedule, and it is not subject to flooding. Further, neither party suggested this site is subject to the stalled buy-back scheme.

Current planning policies, controls and other strategic documents

20 The Council argued this proposal is contrary to particular State and local planning policies as well as a Council adopted strategic planning document known as the Wellington Coast Subdivision Strategy.

21 The State planning policies relied upon by the Council are Protection from Wildfire (clause 15.07) and Coastal Areas (clause 15.08). I do not find wildfire protection to be a matter that requires particular consideration in this proposal as the area surrounding this site is not recognised as being a fire risk environment under the Wildfire Management Overlay of the Planning Scheme. The State policy specifically requires Councils to identify fire risk environments in the Planning Scheme and then consider fire hazards as part of any planning decisions affecting such environments. This site and the surrounding area are not recognised in the Planning Scheme as being a fire risk environment. Having said that, there is no doubt this site and surrounding area are remote and situated in a coastal bush setting. In a fire risk situation, the site would more than likely need to be responsible for its own fire fighting, which may require the inclusion of a large water tank or other fire fighting measures on the property. Ms Wilson indicated the applicant is intending to install a water tank with a fire fighting outlet and suggested this could be included as a permit condition. However, I am of the opinion the provision of a fire fighting outlet is a matter that can be determined/implemented by the owner of the land rather than imposed as a permit condition for the development of the site.

Coastal Areas State Policy & Victorian Coastal Strategy

22 The objective of the Coastal Areas State policy is to assist the protection and maintenance of significant environmental features and sustainable use of natural coastal resources. It requires consideration to be given to the Victorian Coastal Strategy and any relevant coastal action plan (amongst other strategy and policy documents). Neither party referred to the Victorian Coastal Strategy but I have reviewed its content and note it states:

Appropriate coastal development is development that:

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enhances protection and rehabilitation of the natural environment and biodiversity;

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results in increased public benefit, having regard to environmental, social and economic implications;

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is sensitively sited and designed, having regard to the 'Siting and Design Guidelines for Structures on the Victorian Coast' and 'Landscape Setting Types for the Victorian Coast';

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minimises public risk;

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is set back from the coast as far as practicable in line with vulnerability assessments;

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facilitates multiple-use of sites and existing infrastructure, without resulting in over-use;

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facilitates improvements of sites or existing developments that have poor environmental or social performance; and

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is consistent with the requirements of coastal planning strategies and plans, and relevant planning schemes.[1]

Plans (eg. coastal action plans, coastal management plans) consistent with the Victorian Coastal Strategy will continue to be developed and integrated with planning schemes at the local and regional level to provide detail and give attention to regional or local issues.[2]

24 Under the Built Environment section of the strategy it comments that there are numerous examples of inappropriate subdivisions along the Victorian coast where expensive remedial actions have been necessitated in recognition of the environment's inability to sustain such development. However, it does not elaborate as to where these subdivisions are located. It states appropriate coastal development is any type of development that meets the principles for coastal planning and management, and it goes on to talk about development being focussed around existing settlements/activity nodes and recreation nodes. It states in most cases, these nodes are, or will be identified and defined by detailed planning by Regional Coastal Boards, local government and others through coastal action plans, planning schemes and management plans[3].

25 So this brings me to the Gippsland Lakes Coastal Action Plan ('CAP') prepared by the Gippsland Coastal Board in April 1999, a document which was referred to in the Council's written submission. This CAP acknowledges the responsibilities of the Board to identify activity nodes and the Council highlighted the following strategic directions in the CAP:

5.2.3 Actively discourage ribbon development by containing activity within defined nodes.

5.2.4 Review, complete and implement consolidation plans for old and inappropriate subdivisions.

5.3.1 Prohibit inappropriate development on the islands or outer barrier of the Gippsland Lakes system.

26 What the Council did not mention is strategic direction 5.2.2 which is to identify activity nodes and coastal settlements to encourage development in suitable locations. The situation is the CAP does not identify any activity nodes or coastal settlements throughout the Gippsland Lakes area, which arguably makes the implementation of strategic direction 5.2.3 somewhat problematic.

27 During my review of this case, I became aware of a second CAP of relevance, which is a reference document in the Planning Scheme. This CAP is titled "Integrated Coastal Planning for Gippsland - Coastal Action Plan 2002" and it states the Board supports the concept of activity nodes and the need to avoid strip development along the coast, which should be further refined and implemented through planning schemes[4]. However, again, this CAP does not identify any activity or recreation nodes.

28 The Victorian Coastal Strategy suggests activity and recreation nodes may be identified through a CAP or a planning scheme. As no activity nodes are identified in either CAP, this brings me to the Wellington Planning Scheme. The Municipal Strategic Statement ('the MSS') acknowledges the Shire's coastal areas are under increasing redevelopment pressure[5] and the coastal environment can be easily damaged by inappropriate development. The Framework Plan in the MSS states further growth along the Ninety Mile Beach is to be contained within existing settlements[6]. The MSS also states development has been encouraged to occur within the areas of Paradise Beach, Golden Beach and at the Honeysuckles[7]. In the same section of the MSS, it states there are numerous low density residential areas in the Shire that "provide a legitimate residential lifestyle choice". Whilst this site is not located in Paradise Beach, Golden Beach or the Honeysuckles, it is in an area zoned low density residential and the MSS recognises such areas as providing a legitimate residential opportunity.

29 Ms Cahill quoted an objective that strongly discourages development on the Lake Reeve Islands and other areas subject to flooding and environmental constraints; however, upon review of the Planning Scheme, I find this objective falls under the heading "Paradise Beach, Golden Beach, Hollands Landing and the Honeysuckles" and none of these are the area within which the review site is located. There is another heading "Coastal Areas" that contains a broad range of objectives including (but not limited to):

•

Strongly discourage new residential subdivision or development in sensitive or dynamic areas such as primary or secondary sand dunes, or on the Lake Reeve Islands.

•

Facilitate the restructuring of old and inappropriate coastal subdivisions as opportunities arise and where the development of such lots will not result in significant environmental impacts.

30 The review site and surrounding allotments at Glomar Beach must fall within the "Coastal Areas" as they do not fall within the other designated areas. Despite encouragement for development in other specific locations such as Golden Beach or the Honeysuckles, the review site and surrounding allotments are zoned Low Density Residential and the review site has already been restructured from an old and inappropriate subdivision. There is nothing in the Planning Scheme that specifically identifies which areas are activity or recreation nodes. Instead it acknowledges existing low density areas provide a legitimate residential opportunity, and the fact that the site and surrounds are contained in a residential zone must be afforded some weight. To this end, I find the proposed residential development of the review site accords with the Local Planning Policy Framework.

31 One of the Council's grounds of refusal was the proposal is contrary to the recommendations of the Wellington Coastal Subdivision Strategy adopted by the Council in September 2005. The Council's submission argued strongly that this recent strategic planning work supported their opposition to this proposal. The Council stated the proposal is contrary to the Strategy because the review site is within a Rural Conservation area where development of small individual lots will not be possible as the primary purpose is to protect coastal landscapes and environmental values.

32 During the hearing, Ms Wilson pointed out the Strategy includes a Preferred Settlement Structure Plan that contains a series of coloured circles along the length of the Ninety Mile Beach, between Seaspray and Paradise Beach. This map shows the review site sitting on the edge of a yellow circled area, which is designated as Rural Living. Ms Cahill advised this relates to Restructure Overlay areas R19, R20 and R21, within which the review site is located. The Council and Ms Wilson both agreed the Strategy's Structure Plan clearly states the boundaries for the extent of Glomar Beach are yet to be determined.

33 Ms Wilson quoted the Council's adopted position in September 2005 for Glomar Beach:

Council, with support from government and input from property owners, to:

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Decide land use and conservation outcomes

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Determine restructure lot boundaries

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Consider whether or not new legislative measures are appropriate as an alternative to current land acquisitions and assembly processes, including compensation arrangements

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Pursue private sector involvement in tourism opportunities

34 The Council's resolution in September 2005 also included:

Review the Wellington Planning Scheme to ensure that zones and provisions reflect the preferred settlement structure. This will include removal of the tenement provisions and modification of restructuring arrangements.

35 Since the September 2005 resolution, Ms Cahill advised the Council has been negotiating with State and Federal Governments about the potential for land acquisition of nominated rural conservation areas. The parties also advised the State Government has provided some funding to be used to better identify the full cost of implementing this Strategy and to assist the Council in appointing a project officer to help develop and manage the Strategy's overall implementation.

36 Clearly the review of planning controls and policies affecting Ninety Mile Beach are in an embryonic stage. Further, the Strategy is inconclusive in regard to the future extent of Glomar Beach. The Structure Plan makes reference to restructuring Glomar Beach lots to create large rural conservation holdings accommodating existing dwellings. In addition to this comment, the Council resolution is inconclusive as to the future of Glomar Beach as it is yet to decide the land use and conservation outcomes, the boundaries of the area or the boundaries for any further restructuring of lots. Given this, I am not persuaded by the Council's submission that the future of the review site is as a rural conservation area.

37 The Strategy is a Council adopted strategy document, but it is not referenced or incorporated into the Planning Scheme. At the time of this hearing, the Council had no definite plans to prepare a planning scheme amendment to implement any of the recommendations of the Strategy. As such, it cannot be given the same weight as the State and local planning policy statements in the Planning Scheme.

38 In light of the previous sections of this decision, it has become clear there are no specifically designated activity and recreation nodes along Ninety Mile Beach between Seaspray and Paradise Beach. The MSS talks about future growth in some specific areas along the Beach but it also talks about coastal areas generally, where restructuring of old and inappropriate subdivisions is to be facilitated and the development of such lots may be facilitated where it "will not result in significant environmental impacts".

39 The review site is zoned Low Density Residential and it has been restructured in accordance with the Restructure Overlay. Given this, the review site can be considered suitable, in general terms, for development. The remaining matter to be considered is whether the development will result in significant environmental impacts.

40 The Council submitted the use and development of the review site for the purpose of a dwelling does not meet the purpose of the Environmental Significance Overlay Schedule 1, which applies to the coastal and Gippsland Lakes environs. I have quoted the statement of environmental significance in schedule 1 in full as it highlights the environmental sensitivities of this area:

The Ninety Mile Beach and Gippsland Lakes and their environs are some of the most significant environmental, landscape, and recreational areas within the State of Victoria.

The coast and lakes systems comprise easily disturbed ecosystems susceptible to soil erosion, ground and surface water pollution, and habitat disturbance. In particular, areas which have been developed as coastal settlements and towns along the Ninety Mile Beach are beginning to cause significant environmental management problems, including loss of water and soil quality, as well as loss of native vegetation.

There are 11,200 subdivided lots along the Ninety Mile Beach between Paradise Beach and the Honeysuckles, east of Seaspray. These lots occur both on the sand dunes of the Ninety Mile Beach and on the adjacent sandy soils. None of the lots is connected to reticulated water or sewerage systems. Investigations have revealed evidence of groundwater contamination at Loch Sport. Development has been encouraged to occur within the township areas of Paradise Beach, Golden Beach and at the Honeysuckles.

There are significant environmental issues in this area, including water quality, landscape, protection of primary and secondary sand dunes, flooding, protection of vegetation habitat, impacts on neighbouring wetlands and coastal parks. Coastal and estuarine systems are vulnerable to human development.

41 The schedule objectives talk about enhancing the environmental quality, natural beauty and visual amenity of the coastal area and minimising the impact of human activities on the ecological values of the coastal environment. In this case, the Council argued the land is heavily vegetated, lies between a coastal dune system and a Ramsar wetland; and its development "could lead to the compromise of native vegetation and allow possible pollution of the local groundwater, and hence could potentially compromise the integrity of nearby wetlands".

42 The decision guidelines of this ESO schedule seek to avoid construction in fragile or unstable areas, including land subject to inundation and land adjoining coastal or lake foreshore boundaries. There was no evidence before me to suggest the review site is fragile, unstable, subject to inundation or adjoining a coastal or lake boundary. Ms Wilson submitted there is no tree removal required and there will be minimal interference with native and introduced grasslands as the dwelling is proposed to built in an existing open area. She also submitted there is no soil removal or filling proposed. In light of these submissions and having inspected the site and area proposed for the siting of the dwelling, I am not persuaded the development of a dwelling will compromise native vegetation on the review site.

43 The applicant provided expert evidence about the land capability, which was not questioned by the Council. The evidence of Mr Medhurst found the site consists of highly permeable sandy soil with sufficient land available for sustainable onsite effluent management that can protect sensitive receptors such as groundwater. He highlighted the site's key features as including:

The site is not in a special water supply catchment area. The site does not experience storm water run-on from either Shoreline Drive or adjoining properties. There is no evidence of a shallow water table and the risk of effluent transport offsite is therefore low. The water table is not used for any beneficial use within the locality and is likely to be highly saline with a very high mineral content due to the presence of the ocean. Lake Reeve is predominantly dry most of the year and its natural environment (like all the other Gippsland Lakes) has been significantly altered by man since Lakes Entrance was opened in 1899.

44 The preferred area for effluent treatment is on the northeast side of the site, which is the highest part and provides an extended buffer distance to any potential groundwater (albeit there was no sign of a shallow groundwater table at a test pit depth of 1.5 metres and Mr Medhurst anticipates groundwater to be in the order of 2.5 to 5 metres below the ground level dependent upon the season). Mr Medhurst recommends a bio-remediation biofilter treatment system be used as it can operate with minimal use of pumps, has low energy demands, low to nil maintenance requirements and will be suited to occasional holiday use with long absences. This would be accompanied by an irrigation area of at least 224 square metres on the elevated dune at the northern end of the site. He also recommends water conservation practices; rainwater harvested from the dwelling roof; AAAA rated water appliances that are strictly limited in number; and a prohibition on an automatic dishwasher and various cleaning agents, amongst other recommendations.

45 The Council did not question this evidence and did not call any independent expert evidence on the environmental impacts of this proposal. In light of the decision guidelines of the ESO schedule, I am satisfied the development of a dwelling has taken into account the retention of existing vegetation, especially existing trees; the groundwater level; and the site management measures necessary to minimise any impacts upon groundwater.

46 I acknowledge the Council's concern about the granting of a permit for a dwelling on this site, in an area along the Ninety Mile Beach where there has long been a desire to minimise the impact of development upon the lake and coastal environs. However, the site is zoned Low Density Residential and the size of the site is in accordance with the Restructure Overlay plan. In light of these circumstances, there is no doubt the site has development potential. The intentions of the Council to undertake further strategic work to focus development opportunities along the Ninety Mile Beach into particular locations is admirable, but there is a lack of clear direction in the Council's adopted Strategy for Glomar Beach and the existing planning policies in the Planning Scheme retain a recognition of the potential for development to continue to occur subject to the Restructure and Environment Significance Overlays. The applicant has provided expert evidence to demonstrate the development of a dwelling will not detrimentally impact upon the environmental qualities of the site and surrounds.

For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is set aside. It is ordered that a permit be issued subject to conditions.

[1] Page 21 of Victorian Coastal Strategy

[2] Page 21 of Victorian Coastal Strategy

[3] Refer to Figure 8 on page 42 of Victorian Coastal Strategy

[4] Page 13 of Integrated Coastal Planning for Gippsland - Coastal Action Plan

[5] Page 1 of Clause 21.02 of the Municipal Strategic Statement

[6] Page 2 of Clause 21.03 of the Municipal Strategic Statement

[7] Page 1 of Clause 21.04 of the Municipal Strategic Statement