In permit application no. 2005-349, the decision of the Responsible Authority is affirmed. A permit must not be granted.

Mr Chris Smith, Senior Project Manager, Community Projects Branch. Evidence was called from Dr Andrew McCowan, hydrological engineer of Water Technology Pty Ltd.

1

This is an Application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Director of Housing seeking review of a decision made by the Greater Shepparton City Council ("the Council") to refuse to grant a permit in permit application no. 2005-349. The proposal involves the erection of two dwellings on land that is within the floodplain of the Goulburn River.

2

This Application raises significant questions in relation to the development of land zoned for residential purposes that is within an identified floodplain. The arguments raised by the parties centre on whether an intensification of density and built form as proposed in this permit application is acceptable when taking into account the function of the floodplain and the provisions of the Floodway Overlay and Greater Shepparton Floodplain Development Plan Precinct of Goulburn River 2003 (an incorporated document) that apply. As the owner of some 70 properties within the Shepparton and Mooroopna areas that are within Flood Overlay and zoned Residential 1, the Director of Housing obviously sees the importance of this Application in terms of its opportunities to develop lots with more than one dwelling to service the community needs that exist in this area.

3

The primary issue in dispute is one of principle and is not alone of relevance to the Director of Housing. Subdivision within the area is prohibited and there can, therefore, be expected to be other land owners who seek to develop land more intensively taking into account the proximity to services and facilities such as schools and the main Mooroopna retail strip.

4

The review site is located on the east side of McKean Street. It has an area of 715 square metres and is around 500 metres walking distance from the main shopping strip along McLennan Street (also known as the Midland Highway). The land is relatively flat and falls toward the street as is the case with other lots in the area. The lot is vacant having previously been occupied by a single storey dwelling with a number of outbuildings including two sheds, a separate garage and a pergola. The review site is within an established residential area. Adjacent sites are all developed for residential purposes with modest single storey dwellings. These are mainly detached houses although there are existing multi-unit developments.

5

The Applicant seeks approval to develop the land with two single storey dwellings. The units would be detached and each would contain two bedrooms. They would be served by separate driveways with paved car spaces. The plans show the floor level to be at 112.94 AHD that being 300mm above a nominated flood level of 112.64AHD[1]. Trellis fence additions seek to address the potential for overlooking as a result of the raised floor levels.

6

The following provisions of the Greater Shepparton Planning Scheme ("the Scheme") are relevant to the consideration of this Application:

•

The subject site is zoned Residential 1 pursuant to Clause 32.01. A permit is required to construct two dwellings on a lot. A development must meet the requirements of Clause 55 and consideration must be given to the State and Local Planning Policy Frameworks.

•

A Floodway Overlay applies to the land wherein a permit is required for buildings and works. The Greater Shepparton Floodplain Development Plan Precinct of Goulburn River, November 2003 ("the Floodplain Development Plan") is an incorporated document at Clause 81 of the Scheme.[2] An application must be consistent with the Floodplain Development Plan. The application was referred to the Goulburn Broken Catchment Management Authority. It objected to the proposal and its grounds formed the basis of the Notice of Refusal.

•

Other relevant Clauses are 11, 14, 15.02, 16.02, 18.09, 21, 22.03 (Natural Resource Management) and 65 (general decision guidelines).

7

The focus on this Application is the location of the subject land within a floodplain and a divergence in positions as to whether it is appropriate to allow the development of two dwellings accommodating two households on one lot. Having considered the submissions presented by the parties, and having assessed the proposal against the relevant provisions and policies of the Scheme, I have decided to affirm the decision made by the Council for reasons that follow. In setting out my reasons, I do not recite all of the material presented although I do summarise some of the main points below. I also record that there is no dispute between the parties in relation to matters of design and siting in the context of Clause 55 considerations although some minor matters would have been addressed by way of conditions if a permit had issued. I have assumed such changes could have been simply achieved.

8

The policies and guidelines set out in the Scheme seek to protect life and property from flood hazard, to protect the natural carrying capacity of floodways and also to protect the flood storage functions of floodplains. These principles are "given" insofar as all parties concur with the imperatives that are set by the Scheme in relation to the avoidance of flood hazard and risk. Thus, I do not need to address in any detail the provisions of Clause 15.02 and 65 on these points as the understanding of the policy direction appears to be common ground between the parties.

9

Clauses 15.02 and 44.03 and the policy at Clause 21.05-5 refer to various types of documents that can be termed as local floodplain management plans/strategies as a relevant factor, or a requirement, in decision-making by responsible authorities (and planning authorities in the case of Clause 15.01). In this case, there is an incorporated Floodplain Development Plan and I return to its specific provisions shortly.

10

The parties also referred to the VPP Practice Notes on Flood Provisions. One[3] refers to the application of the Floodway Overlay stating:

...The FO applies to mainstream flooding in both urban and rural areas. These areas convey active flood flows or store floodwater in a similar way as the UFZ [Urban Floodway Zone] but with a lesser flood risk. The FO is suitable for areas where there is less need for control over land use, and the focus is more on control of development.

11

I note that it states that urban land that is fully or substantially developed may be a suitable candidate for the application of the Floodway Overlay.

12

A further Practice Note addresses permit applications.[4] The parties referred to the points set out at page 7 that address matters to be taken into consideration by a council or floodplain management authority when making a decision or commenting on a permit application. Specifically,

Residential ... buildings are not generally an appropriate development on floodway land in view of their potential for flood hazard and for obstruction of flood flows.

A development should be refused if it is likely to cause an unacceptable increase in flood risk in the following situations:

•

it is likely to result in danger to life, health and safety of the occupants due to flooding of the site

•

it relies on low-level access to and from the site

•

it is likely to increase the burden on emergency services and the risk to emergency personnel

•

...

•

if any subdivision, development or redevelopment is likely to increase the number of buildings located in a floodway area.

13

The Practice Note advice supports the direction of the Scheme that development in a floodplain must avoid increased hazards and risks. The principles upon which the Scheme policies are premised are relevant to an urban area that historically developed on a floodplain as is the case in Mooroopna. Improved flood mapping by relevant authorities and consequent Scheme provisions to control development seek to ensure that what may now be regarded as questionable or inappropriate decisions relating to the location of settlements in floodplains are not repeated and that existing risks and hazards are not compounded.

14

The review site is part of an established urban area. It is a locality that would be ideal for multi-unit development in usual circumstances and, indeed, that has been permitted in the past as evident from units near to the site and in the wider area. The area would be usually be regarded as suitable for units given the lot sizes that would allow more than one house per lot, the lack of other Overlays and the close proximity to services and facilities including those along McLennan Street/Midland Highway. From what I have ascertained, the Floodway Overlay was introduced in June 2004 via Amendment C23 Part 1 and the information available on the Department of Sustainability and Environment's web-site shows that it was not the subject of an independent panel hearing following exhibition in early 2003.

15

Most decisions about planning permits require balancing a number of relevant considerations to reach a decision as to whether a specific proposal represents an acceptable planning outcome in the terms required by the Scheme. In this case there are relevant objectives relating to floodplain management, urban consolidation of residential areas, the promotion of housing in proximity to activity centres as well as objectives relating to the provision of social housing. These are all matters for consideration in this proceeding in addition to the usual criteria of neighbourhood character and potential off-site amenity impacts (criteria that are not disputed in this case).

16

The provisions of the Floodplain Development Plan are very important in relation to floodplain management objectives and policies. The Floodplain Development Plan is focussed on floodway issues and while it does not tackle the policy-balancing exercise overtly, there are clear themes which have direct and implied consequences in terms of increased housing density in that part of Mooroopna that is affected by the Floodway Overlay. For example, one theme is apparent from the fact that the Development Plan prevents subdivision in the Floodway Overlay where the number of lots would be increased (except for a "lot excision agreed to by the responsible authority and floodplain management authority") or other specified circumstances where a subdivision is partly within the Floodway Overlay or Land Subject to Inundation Overlay.[5] This supplements the provisions of Clause 44.03-2 that also severely restrict subdivision. Secondly, specified non-habitable new buildings and limited extensions to existing dwellings do not require a planning permit, such as "a single or multiple dwelling extension where the combined ground floor area of the extension since 29th July 1999 is not more than 20 m2" and "a non-habitable building (other than industrial, retail and office) with a floor area of not more than 100 m2". There are other specified buildings that are not bound to apply for a permit and they are minor items such as verandahs and pergolas associated with an existing dwelling. Thus, the point is that the Floodplain Development Plan controls development other than minor buildings and additions so that an assessment can be made as to whether a proposal will be acceptable in terms of floodplain functions and associated hazards and risks.

17

Development requirements in an Urban Floodway Zone are more stringent than where the Floodway Overlay applies and higher again than the Land Subject to Inundation Overlay. That is because "Flood impacts for UFZ and FO areas are generally greater than LSIO areas, as the velocity, depths and frequency of flooding are generally greater"[6]. It is, however, relevant that all parties in this case agree that the incorporated Floodplain Development Plan does not state at any point that more than one dwelling per lot is prohibited.

18

In his submission for the Catchment Management Authority Mr Tierney referred to the provisions of the Floodplain Development Plan stating that a single dwelling on the land would be acceptable but that two dwellings would represent an intensification of building density. Mr Tierney stated that the purpose of the Overlay is to control this type of building intensification as (inter alia) approval of the development would give rise to additional demands on emergency services and residents and increasing risks to life, health and safety. His submission was that the development of each lot should be limited to one dwelling. Similarly, Mr W Smith submitted on behalf of the Council that there are other opportunities around Mooroopna where multi unit development could occur but not the review site where a single dwelling would minimise the risk from flooding.

19

In response to these submissions, the Applicant relied on its view that the proposal is consistent with the Floodplain Development Plan. That submission was made on the basis that the relevant provisions do not state that more than one dwelling on a lot is prevented and that an exemption applies in relation to infill sites. The criteria for infill sites were said by Mr C Smith to be met in the circumstances of the review site. Thus, the proposal would not be inconsistent with the Plan and can comply with Clause 44.03. Mr C Smith stated that many other units exist in the immediate area and he described various elements in the design of the proposed units that respond to flood potential. He submitted that the proposal would not be burdensome on emergency services as the Office of Housing would be the owner and landlord of the units and, moreover, the Office is part of emergency response activities so that public housing tenants would be well placed to be assisted in an emergency and any persons with mobility difficulties could be housed in other locations rather than the review site. He also stated that although there might be up to four persons per unit it is most likely that there would be two or three.

20

Mr C Smith relied on the evidence of Dr A McCowan. Dr McCowan assessed the effects of the proposed redevelopment on flood flow and flood storage as well as in relation to other factors such as risk to people and property. His evidence noted that the proposed units would be some of the few above the flood level and his evidence was that the proposal would produce a better outcome than would have been the case with the former dwelling on the land that was below the flood level. Moreover, he stated that there would be time for evacuation in a flood given the location downstream from the headwaters of the Goulburn, in the order of 24 hours or more prior to a major flood event. Reference was also made to a Flood Warning System that is being developed for Shepparton and Mooroopna.

Flood Risk and Response to Relevant Scheme Provisions

21

Most of the ground level of the review site is 112.0 AHD with the lowest point being 111.9 metres AHD and the highest being 112.1 AHD based on Dr McCowan's evidence[7]. The flood level for the property adopted by Dr McCowan is 112.64 metres AHD. Thus, during a 100-year ARI flood, the water depth is calculated to be around 640mm increasing to 700mm. The depth of water at kerb level would be about 840mm based on Dr McCowan's evidence that levels along the kerb are typically around 111.8 metres AHD with the level above the slight crest in the road carriageway surface being 740mm. The base figures are extracted from survey.

22

The crux of the Responsible Authority's and Respondent's positions is that developing more than one dwelling per lot in this circumstance is unacceptable. Reliance is placed on the VPP Practice Note I have cited at paragraph 12 where it is said that a development should be refused if it is likely to cause an unacceptable increase in flood risk in the situation where the land "relies on low-level access to and from the site". The Catchment Management Authority's position relies on an interpretation of what low level access means, being that the access floods by more than 800mm for a 100-year ARI flood event. I have not been able to locate a figure of 800mm in the VPP Practice Note[8] on the Department of Sustainability and Environment's web-site. It is self-evident, however, that in the case of the subject land with the road and footpath access being inundated at depths of 740-840mm that residents would have to wade through waters to evacuate. It is relevant here that Dr McCowan's evidence records that 800mm is regarded as the wading limit for children[9] and that correlates with the Catchment Management Authority's position in relation to access routes affected by more than 800mm of water. The proposal would not meet that criterion. Moreover, I am not persuaded to the view that the proposal is acceptable because there are many existing dwellings similarly affected; it is the aim of policy to not add to danger and risk with enhanced flood warning systems and the ability for the floor levels of the proposed dwellings to be 300mm or more above the designated flood level. Nor am I persuaded to accept an otherwise unacceptable outcome on the basis that the proposed units would be better placed than the pre-existing dwelling. The fundamental issue is that it would be dangerous for children to evacuate.

23

The relevant part of the Floodplain Development Plan for the purposes of assessing this permit application is Section 6.1. That Section addresses "Development Requirements for FO or LSIO".

24

In relation to "Buildings" the Floodplain Development Plan states:

•

new buildings must not obstruct natural flow paths or drainage lines;

•

the construction of a dwelling, including a replacement dwelling; must not be located closer than 50 metres to an existing river levee, unless the purpose of the levee is to protect a dwelling, or the levee is less than 1 metre in height;

•

the construction of a dwelling must be sited on land where the 100-year ARI floor depth is less than 0.5 metres above the natural surface level, and is less than 0.8 metres above the natural surface level along the defined access route to the dwelling site in rural areas, or 0.5 metres above the natural surface level for urban areas, unless a lot is greater than 80 hectares or is an infill site in an urban area surrounded by existing buildings (dwelling, industry, commercial) within 50 metres on at least 3 sides;

•

the construction of any new dwellings, including a replacement dwelling, must be sited on the highest available ground unless the applicant can demonstrate to the satisfaction of the responsible authority and floodplain management authority that an alternative site is more suitable;

•

the floor level of any dwelling, is set at least 300 mm above the 100-year ARI flood level or a higher level set by the responsible authority;

•

...

25

The above provision could be said, on one view, to give weight to the Catchment Management Authority's position insofar as the review site would be more than 500mm above the 100-year ARI flood depth and the road is partly more than 800mm (although the kerb is 740mm). However, the third dot point cited above sets such parameters for rural land and urban land. It also indicates that an infill site would be exempt from these requirements where it within an urban area surrounded by existing dwellings within 50 metres on at least three sides. The interpretation of the third dot point may be open to legal argument but in the case before me it is common ground between the parties that the subject land complies with a nominated "exception" as it is an infill site surrounded by houses on three sides that are closer than 50 metres.

26

Although the review site is accepted by all parties to be an infill site for the purposes of the Floodplain Development Plan and the proposal for the construction of two dwellings on the review site is not prohibited outright, it does not automatically follow that a permit should be granted for two units on an infill site. It is relevant that the proposal is not prevented by the Plan but an assessment of the permit application must still be made against the relevant decision guidelines, Overlay purposes and applicable policies.

27

Having undertaken that assessment, I am not persuaded that adding to the building density in this floodplain where footpath and road access is up to 840mm lower than the designated flood level is an acceptable outcome.

28

I reach that view having regard to mitigating factors that underlie the specific circumstances of this application including the relatively modest size of the proposed detached dwellings. Those mitigating factors identified by the Applicant and my response to them are:

•

First is that the Office of Housing has greater control over tenant placements and an active role in emergency management. I accept these propositions but I am not persuaded that they carry influential weight when there is always the potential for the housing to be sold so that any benefit gained by the role of the Office of Housing has in managing tenant placement and in emergency awareness and management is lost.

•

Second is the extent of floor area represented in this proposal is estimated by the Applicant to be around 30 square metres more than the dwelling that previously existed on the review site. I accept that on one view this might seem small and little more than might be allowed as-of-right if the existing dwelling remained on the land. However, each proposed dwelling could be extended based on the Floodplain Development Plan's provisions. Moreover, there would be two households on the land instead of one. That might result in fewer occupants in total than the previous dwelling because of smaller household sizes, however, it may also result in a larger number of residents. The expectation of the Applicant is that there would be two - three persons per household but they can be occupied under Office of Housing guidelines by up to four persons. Planning Schemes do not control the number of persons in a dwelling or on a residential lot and permit conditions are also usually not directed to specifying the maximum number of people per housing lot or per conventional dwelling.

•

Third is the presence of some unit development in the immediate and wider area of the review site. Although those units exist, they are not the norm and the Planning Scheme regime has now changed since they were allowed. An assessment must be made against the current provisions of the Scheme and the Floodplain Development Plan that both seek to redress a historical situation relating to the development of this area that, in hindsight, can be regarded as a poor planning decision. The resultant situation must now be managed to minimise flood risk and harm to life and property.

29

The above considerations lead me to the conclusion that a permit should not issue.

30

A final matter for my comment is an underlying concern that I have about the position taken by the Council and Goulburn Broken Catchment Management Authority. It is "black and white" in practical application but not so articulated in the Scheme. If the land had been included in an Urban Floodway Zone there might have been clearer direction for the development of this residential area. Instead, I can envisage a series of permit applications all seeking more than one dwelling on "infill" sites. Each will be required to be assessed on its merits but if there is a general principle relating to multiple unit development on infill sites that is sought to be applied by the Council and floodplain manager then that should be included in the Scheme via an amendment that is tested through exhibition and, if necessary, independent review. Alternatively, if some form of unit development might be acceptable in some circumstances then clear parameters should be set out in the incorporated document or local policy at Clause 22 of the Scheme. This may be a process that the Director of Housing seeks to advance as a result of my findings in this case.

31

Mr Tierney stated that the Authority has used this Floodplain Development Plan model in other Shires. He referred to Murrindindi and Campaspe as two examples. My brief review of the maps for those Planning Schemes suggests that each does not have large tracts of residentially-zoned land within a Floodway Overlay as is the case of Greater Shepparton Planning Scheme, although some Residential 1 land is affected. The issue seems to be starting to arise elsewhere such as in Benalla.

32

I am aware of two cases before the Tribunal where reliance on a Floodplain Development Plan has formed part of the Tribunal's consideration of a permit application for a dwelling or for a subdivision but neither are on par with this proceeding in relation to the issues and impacts that are being debated. Both resulted in Tribunal orders that a permit must not be granted.

33

The first, Draper[10], was referred to in Mr W Smith's submission. It related to a lot of around 1.6 hectares in Katamatite some six kilometres south of Cobram. The land was zoned Rural and affected by a Land Subject to Inundation Overlay. There was a proposal for the lot to be included in a Floodway Overlay based on further mapping by the Goulburn Broken Catchment Management Authority. While there were several reasons why the permit application was refused, the Tribunal found the proposed dwelling to be unsuitable "given its location within a floodway that is likely to experience flooding to a depth of close to 2 metres"[11].

34

The second, Harvey[12], involved a six lot subdivision of 2 hectare lot that was zoned Residential 1 in an established residential area. In its findings, the Tribunal gave weight to flood level information and said[13]:

It is considered that the proposal for 6 lots could result in an intensity of development that will have, given the location of the land, adverse impacts to adjoining areas in terms of the redistribution of flood levels. It was acknowledged by both the Responsible Authority and the Catchment Authority and this view is not unreasonable that some development could potentially occur on the land, but not at the intensity that would result from a 6 lot subdivision. Although it was submitted floor levels of any development could be built at a height to overcome the risk of flooding, even if this occurred, it is more the amount of possible development as a result of 6 lots, rather than the steps taken, that is likely to have an adverse impact on the flood levels in the surrounding area.

35

Mr C Smith referred me to another matter decided by Member Rickards in Jackson[14], wherein the Tribunal allowed a second dwelling on a lot and a two lot subdivision in Benalla. The land was affected by a Land Subject to Inundation Overlay and zoned Residential 1. Mr C Smith stated that the proposal met the floor/flood level requirement and that no weight was given by the Tribunal to arguments about potential flood risks. I have read the Tribunal's decision in Jackson and I think that is distinguished from the circumstances before me on several key points. First, it is said in the decision that the Responsible Authority and Catchment Management Authority had an agreement in relation to dwellings proposed at over 300mm above the flood level and second that there was nothing in documentation to persuade the Tribunal to give weight to submissions that the land should be within a Floodway Overlay instead of the Land Subject to Inundation Overlay. That is not the case here; the subject land is within a Floodway Overlay and there is more specific direction in the Scheme than available at the time the Tribunal made its findings in Jackson.

36

While there are other Tribunal cases that deal with proposals for dwellings in rural zones on land affected by floodway overlays or that has been identified as flood prone[15] they demonstrate that the Tribunal has been acutely aware of flooding considerations and that the erection of dwellings in areas known to be subjected to serious flooding is usually not supported.

37

Thus, I do not think that the Applicant's case derives support from any previous Tribunal decisions to which I was referred or which I have read. Nor do the Tribunal decisions persuade me to set aside the concerns I have identified above so as to direct the issue of a permit.

38

For the above reasons, I will affirm the decision made by the Responsible Authority and direct that no permit issue. It is evident from my reasons that this case potentially has wider implications for other land zoned for urban development in Mooroopna that is affected by a Floodway Overlay if it might also be affected by similar or higher depths of flood waters for escape/access routes. As I have stated, I consider it important that the Council and Goulburn Broken Catchment Management Authority work together to make clear any policy position that will be taken in relation to multi-unit developments or other proposals on infill sites that may involve an increase in household and/or building density as identified at paragraph 30 of my reasons.

[1] Mr Tierney's submission and the referral response from the Goulburn Broken Catchment Management Authority nominates the flood level at 112.65AHD and for the purposes of this review I have accepted that the floor level can very simply be adjusted to ensure that it is 300mm above the flood level (ie. to have a finished floor level of 112.95AHD).

[2] At the Hearing I was provided with a document with the same title but dated September 2003. It was said by all parties to be document referred to at Clause 81. I have accepted that to be so.

[3] Applying the Flood Provisions in the Planning Scheme- a guide for councils, August 2000, page 6.

[4] Applying for a Planning Permit under the Flood Provisions - a guide for councils, referral authorities and applicants, August 2000.

[5] Greater Shepparton Floodplain Development Plan Precinct of Goulburn River, September 2003 at page 4 of 6, Clause 6.1. I note that there are supplementary requirements for land affected by an LSIO at Clause 7.0 of the same document.

[8] Applying for a Planning Permit under the Flood Provisions - a guide for councils, referral authorities and applicants, August 2000.

[9] Statement of Evidence at paragraph 11.4 on page 13.

[10] Draper v Moira Shire Council [2003] VCAT 344.

[11] Draper v Moira Shire Council [2003] VCAT 344 at paragraph 16.

[12] Harvey v Benalla Rural City Council [2004] VCAT 1397.

[13] Harvey v Benalla Rural City Council [2004] VCAT 1397 at paragraph 13.

[14] Jackson v Benalla Rural City Council [2005] VCAT 1412.

[15] For example, Hauser & Waite v Indigo SC and Ors [2001] VCAT 547.