1 The application for review is allowed. The decision of the Responsible Authority dated 6 September 2005 is varied.

2 The Responsible Authority is directed to issue a modified permit containing the conditions set out in Permit 050302 dated 6 September 2005 and amended 21 September 2005 but modified as follows:

•

Deletion of conditions 13(b), 13(f) and 13(g).

•

Amend condition 13(c) to now read:

Lots shall be filled to a minimum of 300mm above the applicable flood level of the Potts Road Drain at the time of the placement of the fill.

Finished floor levels must be a minimum of 600mm above the applicable flood level of the Potts Road Drain at the time of development.

•

Consequential renumbering of permit conditions.

1 Domus Design Pty Ltd was issued Permit 050302 on 6 September 2005 (amended on 21 September 2005) by Frankston City Council. The permit allows for subdivision of the land at 64 Potts Road, Langwarrin into 3 lots.

2 Domus is seeking to review conditions 13(b), 13(c), 13(d), 13(f) and 13(g). These conditions were required by Melbourne Water as a Referral Authority in relation to the application for subdivision under section 55 of the Planning and Environment Act 1987 (PE Act).

3 Prior to the hearing Domus Design and Melbourne Water reached agreement and Melbourne Water indicated it consented to the removal of conditions 13(b) and 13(g).

4 The conditions that remain in contention are conditions 13 (c), (d) and (f). These conditions provide:

(c)

Lots must be filled to a minimum of 63.2 meters above the Australian Height Datum unless otherwise agreed to in writing by Melbourne Water.

(d)

Finished floor levels must be a minimum of 63.5 meters above the Australian Height Datum unless otherwise agreed to in writing by Melbourne Water.

(f) Before certification the plan of subdivision must be amended to include a 40m wide drainage easement in favour of Melbourne Water.

5 The applicant contends conditions 13 (c) and (d) are inappropriate on a subdivision permit, if necessary they should be on a development permit. In this respect the applicant notes in a previous Tribunal determination in relation to development on Lot A these conditions were rejected and there is no proposal for development on Lot B.

6 In relation to condition 13(f) the applicant contends this condition is invalid as it has no nexus with what has been permitted. It is submitted the subdivision of the land into 3 lots does not create any need for additional drainage nor does it prevent Melbourne Water taking steps to acquire part of the land if it considers this is necessary in the future to achieve an environmental design in accordance with its current policy for the design of new waterways.

7 Melbourne Water contends the conditions are necessary as there are no adequate controls to ensure future development on Lots A and B is appropriate so that there is no impact on flood levels and no impact on any future works in the waterway. In this respect it is submitted the 40m wide drainage easement to be contained in Lot B is required to enable appropriate drainage requirements to be put in place for properties along Potts Road which are all affected by the associated flood levels of the Potts Road Drain and to ensure the availability of access to the waterway. This drain is located at the rear of the land.

8 It is Melbourne Water's view that as Lot B is entirely subject to flooding any development in Lot B is inappropriate as it poses a danger to people and property, will increase the impact of flooding on upstream properties by reducing the storage capacity of the naturally occurring retarding basin that encompasses the lot and will also restrict the management of the floodway by potentially impeding or limiting the nature of works that can properly be undertaken by the flood plain manager to limit or mitigate the effects of flooding. As the waterway manager it is the only opportunity Melbourne Water has to obtain access over private land to properly perform its functions.

9 Melbourne Water also expressed the view that if there are no restrictions on development of Lot B at this subdivision stage there is no ability in the future to prevent inappropriate development as the existing legislative requirements do not require the Responsible Authority to refer development applications to Melbourne Water and there is at present no need for a permit for development for residential purposes on Lot B. There is no proposal for any development on Lot B and as a result of the quarrying activities on the land at the rear it is subject to set back requirements.

10 The subject land is located on the north eastern side of Potts Road, Langwarrin. The site is 'L' shaped and has an overall area of 8231m ² with a frontage width of 29.89m and a rear boundary width of 56.03m. It is subdivided under the permit into 3 lots. Lot 1 has an area of 753m² and contains an existing dwelling. Lot A comprises 6 separate parts with an overall area of 3262m² and is to contain 20 dwellings yet to be constructed. A permit was issued by the Tribunal for the development of the 20 dwellings[1]. Lot B has an area of 2243m² and is 56.03m wide and 40.03m deep.

11 An existing 8.05m wide drainage easement in favour of lots on LP 52070 runs across the site close to the rear (north eastern) boundary and is now contained in Lot B.

12 The subject site is one of several substantial lots on the north eastern side of Potts Road zoned Residential 1 that are yet to be fully developed. Opposite the site is existing residential development. The site is also subject to Development Plan Overlay Schedule 1.

13 To the north west and south east adjoining the site is a double storey brick dwelling and a single storey concrete dwelling and bungalow. To the rear is land used for extractive industry by Burdett's Quarries. This land is separated from the subject site by dense vegetation. This area of land to the north east is subject to Amendment C35 which has been exhibited. C35 in summary proposes to rezone the land to Residential 1and Rural Conservation, and apply a Development Plan Overlay that includes transfer of the remnant bushland to the Crown.

14 The land has a fall of approximately 5m to the north east mainly within the wider, rear portion of the site. Vegetation on the site is sparse except for an area of dense bush adjacent to the rear north eastern boundary contained in Lot B. It is this area of dense bush that Melbourne Water has indicated should be included within a drainage easement to be retained as a 'natural' open waterway. The rear of the subject site is traversed by the Potts Road Drain (waterway). In this section it is a small ephemeral stream. The channel is generally a shallow depression approximately 50 cm deep and 2m wide.

15 Whilst Lot B is said to be flood prone this land is not subject under the Frankston Planning Scheme to either an Urban Floodway zone or Land Subject to Inundation Overlay. Mr Daff indicated that in a 1 in 100 year storm event the flows are not contained in the Potts Road waterway which traverses the rear of the site hence the low land abutting the waterway which includes Lot B is flooded. The existing 8m wide easement which was created at the time of the creation of the lots in Potts Road is considered satisfactory for a low-density subdivision but it was never intended to carry the runoff resulting from a 1 in 100 year flood event on an urbanised catchment. Mr Daff also indicated the waterway was located outside the easement for some of its length.

16 Details of the catchment were summarised by Mr Jackson. The subject land is located within the catchment of the Potts Road Main Drain a declared main drain[2]. The Potts Road catchment has an area of 124ha at Valley Road. The catchment is made up of 63ha of residential land, 51ha of rural conservation land and 10ha of low density residential land.

17 The upper catchment is approximately 65ha, upstream of Cranbourne-Frankston Road; in this area the former watercourse has been undergrounded. At the end of Raneen Drive, the pipe system outfalls to an open watercourse[3]. The waterway flows in a northerly direction across a vacant block of land before entering the Burdett's Quarry property. The waterway meanders through the quarry before flowing into the properties that adjoin Potts Road. It meanders through these properties before re-entering the quarry north west of the Site. The waterway crosses under Potts Road just south of Valley Road, where it then flows in a westerly direction to Boggy Creek. The area immediately south of Valley Road and east of Potts Road is described as a natural basin in which flood waters pond, flowing out at a reduced rate.

18 According to a survey plan of a portion of the Potts Road Waterway a 'bottleneck' occurs along the Potts Road floodplain on the boundary between No 70 and 74 Potts Road. It is said that the 63m contour forms the bottleneck and restricts flow along the floodplain. Melbourne Water indicates that in the 1 in 100 year ARI event floodwater ponds upstream of the restriction to a level of 62.70 to push the flood water through the restriction. The flood level is horizontal upstream of the restriction, including that section across the subject property because of the increased waterway area due to the raised flood level.

19 Mr Daff indicated as a result of the construction of the diversion drainage pipeline along the Cranbourne-Frankston Road after the development of Cranton Rise when Potts Road properties experienced increased flooding, this has resulted in floodwater being stored in the floodplain at a level of 62.70 and protects the downstream properties from higher flood levels. Mr Daff also expressed the view that waterway enhancement works are likely to result in an opening up of the bottleneck.

20 Mr Daff expressed the view that any filling would result in higher flood levels both up stream and down stream. If there was full development of the catchment and no filling or enhancements to the waterway, the flood level across the subject site is 62.70, if the flood plain were filled leaving an 8m corridor the flood level would increase to 63.25.

21 The Potts Road West Drainage Scheme was established in 1990. The Scheme is designed to cater for the increased load on the drainage system that would result from urban development of the rural land north of the Cranbourne-Frankston Road. Mr Daff indicated that the waterway channel and floodplain will need to be reshaped to ensure that the development of this sub-catchment, including the development of the subject site, does not collectively impact upon existing flood levels on properties both upstream and downstream.

22 Proposed work in the waterway are expected to result in a 'natural waterway' 1m or less in depth to allow piped drainage from developments along the creek to connect to the waterway. An access track approximately 6m in width is said to be required along the creek to allow maintenance/construction machinery access. Land adjoining the track is to be planted with indigenous vegetation.

23 To be valid, a condition in a planning permit must fairly and reasonably relate to the permitted development or the condition must be reasonably capable of being regarded as relevant to the implementation of planning policy as ascertained from the PE Act and relevant planning scheme[4].

24 The condition in 271 William Street requiring a splay corner to allow pedestrians to cut across the corner did not relate to the construction or use of the building proposed on that site but it was found it did relate to the planing policy in relation to pedestrian movement applicable to the area in which the building was to be constructed. As summarised in Rosemeier it does not have to be relevant to the development in the sense of being necessary in the interest of the development itself[5]. But conversely that does not mean that just any planning purpose discernible is sufficient if the purpose or policy is in fact quite unrelated to the permission being granted[6].

25 Whether a condition was reasonably capable of being related to the implementation of planning policy in the relevant sense is a question of fact[7].

26 In terms of the Frankston Planning Scheme there is a general policy within the State Planning Policy Framework identifying that Responsible Authorities should assist in the protection and where possible restoration of catchments and waterways and to consider any relevant floodplain or catchment management strategy[8].

27 The policy at clause 12.07 seeks a reduction of the impact of stormwater on catchments and at clause 15.01-2 Responsible Authorities are encouraged to assist to protect and where possible restorate catchments and waterways. Responsible Authorities are encouraged to consider the impacts of catchment management on downstream water quality and where possible should encourage 'measures including the preservation of floodplain or other land for wetlands and retention basins, to filter sediment and wastes from stormwater prior to its discharge into waterways' and to

Consider the impacts of catchment management on downstream water quality ... and, where possible should encourage the retention of natural drainage corridors with vegetated buffer zones at least 30 metres wide along waterways to maintain the natural drainage function, stream habitat and wildlife corridors and landscape values, to minimise erosion of stream banks and verges and to reduce polluted surface runoff from adjacent land uses.

28 Clause 15.02 highlights two objectives in relation to floodplain management; to assist the protection of the natural flood carrying capacity of rivers, streams and floodways and the flood storage function of floodplains and waterways. In this respect clause 15.02-2 highlights that flood risk must be considered in the preparation of planning scheme and land use planning decisions to avoid intensifying the impacts of flooding through inappropriately located uses and developments.

29 More specifically at a local level at clause 21.11-1 there is recognition that 'Frankston City has wetlands and waterways that are important faunal habitats and corridors and perform natural flood retarding function'. Clause 21.11-2 identifies a number of key issues including protecting waterways, wetlands and land liable to flooding. A strategy to achieve this objective is to identify and maintain the habitat and flood retarding values of waterways and wetlands. Such a strategy can be implemented by applying the Urban Floodway zone and using the land Subject to Inundation Overlay to protect areas from inappropriate development.

30 There is an expected increase in population within Frankston and it is expected a large proportion of this population will be accommodated in Langwarrin. The policy contained within clause 22.12 applies specifically to the developing parts of Langwarrin. This policy recognises the demand for additional infrastructure by the increased population with the upgrading of infrastructure being partly funded through a charge on new development. Such contributions are to be identified in each Outline Development Plan required for the particular area. The Langwarrin and Carrum Downs Outline Development Plans and the Langwarrin, Carrum Downs, Baxter/Langwarrin Low Density and Stotts Lane Outline Development Plans (in preparation) are recognised as reference documents in relation to this policy.

31 The Langwarrin Outline Development Plan indicates Melbourne Water is the overall drainage catchment authority with responsibility for main drains and receiving waterways and that it has established drainage schemes for the area.

32 In October 2005 Melbourne Water advised the Responsible Authority and the Applicant that it had engaged consultants to complete hydraulic modelling and design of Potts Road Drain remodelling. It was Melbourne Water's view that this modelling will accurately determine the appropriate drainage requirements for the properties along Potts Road which are all affected by the associated flood levels of the Potts Road Drain. It expressed the view that once it had completed this survey it could amend the drainage easement to reflect the appropriately agreed upon width. When this design phase has been completed Melbourne Water was of the view it would be able to set actual easement locations in regard to hydraulic conveyance of 1 in 100 year ARI flood flows and consideration of environmental requirements[9].

33 Underlying the views expressed by Melbourne Water is its commitment to protecting and restoring existing natural features of the stormwater drainage system, such as channels. Maintaining the waterway as a natural feature and remodelling protects down stream from impacts of development.

34 Melbourne Water indicated that to cater for and facilitate urban development of properties on Potts Road, the existing waterway channel will need to be remodelled for approximately 700m down stream of Cranbourne-Frankston Road, including through Lot B.

35 At the time of the Tribunal's consideration of the development of the 20 dwellings on Lot A Melbourne Water sought to have a condition similar to 13(f) imposed, although it was not as in this instance a referral authority. The applicant relies upon the comments made by the Tribunal in that decision[10] in support of its contention that condition 13(f) is contrary to this previous Tribunal decision. The applicant quoted the following paragraphs of the decision:

69. There is already a drainage easement and a Melbourne Water drainage scheme affecting the review site.

70. An 8.05 metre wide drainage easement runs across the site in favour of lots on LP 52070. It is setback between 3.62 and 14.08 metres from the rear (northeast).

76. I agree with Mr Peake. If Melbourne Water wishes to create a waterway corridor, it should be undertaken via the purchase or compulsory acquisition of the necessary land. For this to occur, Melbourne Water may well need to undertake the necessary modelling of the waterway itself rather than hoping an affected land owner will bear the cost. The imposition of conditions on a permit should have a nexus with what is sought to be approved in the proposal. I was not presented with any evidence or submission to the effect that the drainage of the proposed development requires the provision of a 40 metre wide drainage reserve. I see no nexus between the drainage reserve and this proposal. Therefore I find that it is completely inappropriate to seek to include conditions on a permit for this development to create a waterway corridor serving the wider area.

36 Melbourne Water is able to acquire land to enable it to carry out its Drainage Scheme Plans. Mr Daff referred to the booklet 'Principles for Creating Drainage Schemes' which acknowledges that in certain circumstances compensation is payable to landowners for loss of developable land. Melbourne Water was of the view other Potts Road properties will also be subject to the same requirements when they are developed.

37 Section 136 of the Water Act 1989 provides:

(1) If a proposal for subdivision of land is referred to an Authority under the Planning and Environment Act 1987, the Authority may require the creation of easements or reserves, or both, for the use of the authority for any of the following purposes -

(a)

pipelines or ancillary purposes;

(b)

channels;

(c)

carriageways;

(d)

waterway management;

(e)

drainage

38 Mr Jackson contended that whilst section 135 of the Water Act notes that the powers conferred by section 133 are in addition to the powers conferred by the Land Acquisition and Compensation Act; there is no such equivalent provision for section 136.

39 This does not indicate no compensation will be paid rather it advises of a particular circumstance where compensation may not be paid, it could be open to argument depending on the facts and circumstances of each matter. This does not lead to a conclusion that Melbourne Water is not required to pay compensation.

40 Whilst Melbourne Water as a referral authority can compel the Responsible Authority to impose conditions at its request any such conditions however like all other conditions imposed on a permit must reasonably relate to the permitted development. Section 136 of the Water Act specifies the types of things for which Melbourne Water may require an easement or reserve in relation to a planning permit for subdivision. There is no evidence of what works are actually to be undertaken. There is already in existence a drainage easement that it is acknowledged caters for the existing situation.

41 Whilst Mr Peake referred to the alternative methods by which Melbourne Water can acquire land as a water authority it is not necessary for the Tribunal to weigh up whether such alternative methods should or should not outweigh imposing a condition in the form sought. The Tribunal is required in this matter to consider whether condition 13 (f) is valid in the context of the particular permit and if not specifically linked to this permit whether there are any planning policies that would indicate such a condition is appropriate to an overall achievement of the policies.

42 In terms of the Frankston Planning Scheme there is general policy encouraging the consideration of protecting floodways and waterways and to do this the planning scheme specifically recognises that there will be a need to apply an appropriate zone or overlay to protect these areas from inappropriate development. There is no special zone or overlay in relation to flooding over this area of land.

43 It is recognised in the planning scheme that the drainage of the overall area is the responsibility of Melbourne Water. Melbourne Water has a Drainage Scheme that applies to an extensive area of which Potts Road is a small sub-catchment. The overall Drainage Scheme has large areas of residential development. The land from Raneen Drive extending along Potts Road which includes the subject land whilst located within the Residential 1 zone under the planning scheme is generally under developed. The planning scheme recognises that there will be an increase in population and that the Langwarrin area is expected to accommodate a large amount of that increase. Melbourne Water recognises works will be required along the waterway to accommodate residential development to ensure that flood levels do not impact on development and to improve the natural waterway. To this end Melbourne Water also recognises that modelling is required to ascertain what types of works are required. The works proposed will have benefits beyond the boundaries of the site.

44 We are not able to conclude that the requirements of Melbourne Water for a 40m wide drainage easement are the direct, natural and reasonable consequence of the proposal to subdivide this land. Imposing a condition to prevent inappropriate development from occurring on a lot in circumstances where Melbourne Water does not consider there is an appropriate control is not a matter for Melbourne Water. That the floodplain and waterway are not covered by appropriate controls under the Frankston Planning Scheme is not a reason for the imposition of the condition. The Planning Scheme recognises that in such circumstances the appropriate controls that should be imposed are the application of either an Urban Floodway zone or a Land Subject to Inundation Overlay. If Melbourne Water is concerned about the wider implications of development within the floodplain they should seek to have such controls imposed. The protection of future development from flooding and ensuring that future development does not reduce flood storage or restrict the passage of flood flows is a matter for the whole drainage scheme.

45 Development has already been approved on Lot A which is not contained within the floodplain. No development is proposed on Lot B. Lot B is already subject to flooding the subdivision will not change this situation. There is an existing 8m wide easement in relation to drainage. If, after the modelling is carried out by Melbourne Water, this is not satisfactory then it can seek to enlarge the area by way of its own legislation.

46 The two remaining conditions to be considered are conditions 13 (c) and (d) which relate to finished floor levels and to fill. It was clear from the evidence of Mr Daff that the further modelling and future works could have implications for the flood level and could reduce the level, particularly if the 'bottleneck' area was addressed.

47 Whilst the applicant submitted such conditions were more related to development than to subdivision we acknowledge that it is appropriate to impose conditions in a subdivision permit requested by the Referral Authority Melbourne Water that require fill levels and floor levels to be above recognised flood levels. We consider that both conditions reasonably relate to subdivision within a Residential 1 zone which will allow for development to be carried out at some point in the future. Mr Daff acknowledged that with full development of the catchment and no filling or enhancements to the waterway the flood level across the site is 62.7 and if the floodplain was filled this could rise to 63.2. We note that if the land was subject to either the Urban Floodway zone or Land Subject to Inundation Overlay such conditions would be automatically required.

48 Consideration of a condition in relation to floor levels was made by the Tribunal in relation to the development of 20 dwellings on Lot A. The Tribunal stated:

Melbourne Water nominated floor levels for some of the proposed dwellings based on the anticipated flood level of the waterway corridor. These levels would necessitate the raising of the floor levels of dwellings 12 and 13. However, I have already commented that there is uncertainty regarding the design and extent of the waterway. Melbourne Water's letter comments additional survey information has already changed the recommended floor levels and they may change again with remodelling of the waterway. Therefore, I do not consider it appropriate to include these modifications in the permit conditions.

49 We consider that both conditions should be amended to allow for possible future changes to the flood levels in the area and that the fill level or floor level relate to the actual flood level at the time such development is being carried out.

50 For the above reasons the application for review is allowed in part.

[1] Domus Design v Frankston CC [2005] VCAT 567 (4 April 2005)

[2] Melbourne Metropolitan Board of Works Act 1958 - Government Gazette G3: 20 January 1994 p 164

[3] A 'waterway' under the Water Act 1989 and Melbourne Metropolitan Board of Works Act 1958

[4] Pyx Granite CO Limited v Ministry of Housing and Local Government [1958] 1 QB 554; 271 William Street Pty Ltd v City of Melbourne [1975] VicRp 15; [1975] VR 156; Rosemeier v City of Greater Geelong (No 1) (1997) 20 AATR 86

[5] Rosemeier v City of Greater Geelong (No 1) (1997) 20 AATR at [78]

[7] Helen Stogdale v Stonnington City Council & Ors (2004) 18 VPR 217

[8] Clauses 12.07, 15.01-2, 15.02-1 Frankston Planning Scheme

[9] Letter from Melbourne Water to Frankston City Council 20 October 2005

[10] Domus Design v Frankston CC [2005] VCAT 567 (4 April 2005)