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1. This is an application for review of the decision of the Responsible Authority dated 5 August 2002 to refuse to grant a permit for a dwelling on Lot 2 LP64958, Benalla-Tocumwal Road, Katamatite The grounds of refusal are as follows:

1. The subject land is located within floodway land;

2. The proposal is not consistent with the Victorian Planning Provisions Practice Notes "Applying for a Planning Permit under Flood Provisions";

3. The proposal is not consistent with the Local Floodplain Development Plan Murray Precinct (adopted by the Authority's Board on 5 October 2001);

4. The proposal will result in danger to life, health and safety of the occupants due to flooding of the site;

5. The proposal will increase demand on burden on emergency services and risk to emergency personnel;

6. The long term cumulative impacts of such proposals are undesirable.

2. The grounds of the application for review are as follows:

1. The land was purchased with the intention of building a house.

2. The land is only 4 acres, leaving it useful for little else.

3. A permit was previously granted on December 31 1996, permit number C/TP96/420.

4. Refusal of a permit, or refusal of compensation (for which I would happily settle) for the difference of the value of the land when we bought it compared to an updated valuation, contradicts the laws of natural justice upon which our legal system is founded.

3. The land is located 6kms south of the township of Cobram on the west side of the Benalla-Tocumwal Road, Katamatite and 122 metres south of Tobruk Road. It is irregular in shape with a total area of approximately 1.6 hectares. Dwellings are located in the vicinity and on adjoining lots. The area is generally farm land.

4. It is proposed to use the land for a dwelling. No plans for a dwelling accompanied the application although the general location of the proposed dwelling was shown on a site plan to be 40m from Tobruk Road and 80m from a government road to the south.

5. The land is within the Rural zone (Clause 35.01) and Land Subject to Inundation Overlay (Clause 44.04) in the Moira Planning Scheme. The Benalla-Tocumwal Road is included in a Road 1 zone. Under Clause 35.01 a dwelling is an as of right use provided the condition in the table opposite the use is met. The condition in the table requires that: 'the lot must be at least the area specified in a schedule to this zone. If no area is specified the lot must be at least 40 hectares. Must be the only dwelling on the lot. Must meet the requirement of clause 35.01-2.' The schedule specifies a minimum of 12 hectares for land in the Cobram Precinct. The land is located within the Cobram Precinct but is less than 12 hectares in area. As this condition has not been met the use of the land for a dwelling requires a permit. Under Clause 35.01-2 an all weather access road, effluent disposal system treated and retained on site and potable water supply is required. No information has been provided with regard to these issues. Under Clause 35.01-3 a permit is also required for buildings and works associated with the proposal and if within 100m of a Road 1 zone.

6. A permit is also required under Clause 44.04-1 to construct a building. Such an application is required to be referred to Goulburn Broken Catchment Management Authority as the relevant Floodplain Management Authority. Clause 44.04-3 requires an application to be consistent with any local floodplain development plan. An interim Floodplain Management Plan is listed as a reference document in the scheme under Clause 21.09.

7. In Clause 44.04 one of the purposes of the Overlay is 'to ensure that development maintains the free passage and temporary storage of floodwaters, minimizes flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity'.

8. Clause 44.04-5 sets out the matters that must be considered before deciding an application in particular:

* Any comments from the relevant floodplain management authority.

* Whether the proposed use ort development could be located on flood-free land or land with a lesser flood hazard outside this overlay.

* The susceptibility of the development to flooding and flood damage.

* The potential flood risk to life, health and safety associated with the development.

* The frequency, duration, extent, depth and velocity of flooding of the site and accessway.

* The danger to occupants of the development, other flood plain residents and emergency personnel if the site or accessway is flooded.

* The effect of the development on redirecting or obstructing floodwater, stormwater or drainage water and the effect of the development on reducing flood storage and increasing flood levels and flow velocities.

9. Mr Tierney advised that the Catchment Authority in its letter to the Responsible Authority dated 14 May 2002 objected to the proposal for a dwelling on the subject land on the grounds on which the Responsible Authority has included in its Notice of Refusal.

10. Mr Tierney advised that the Catchment Authority had recently reviewed the Floodplain Management Plans and produced a revised draft based on recent flood mapping carried out under the Natural Resources and Environment Flood Data Transfer Program. The subject land is now shown on the draft plan as being within a proposed Rural Floodway Overlay rather than the existing Land Subject to Inundation Overlay.

11. Mr Tierney provided the Tribunal with a detailed analysis of the revised flood mapping. The Authority's estimate of the 100 year ARI flood level for the subject land is 114.3 metres AHD. He submitted that current "best practice" flood plain management principles generally consider land that floods more than 500 millimetres in a 100 year ARI type flood to be floodway land. He defined floodway land as: the component of the flood plain required to provide adequate flood conveyance and storage and should remain free of obstruction during major flood events; generally the high hazard portion of the floodplain where the placement of buildings that increase risk to health, life and safety should be avoided.'

12. The Tribunal was advised that Amendment C14 to the Campaspe Planning Scheme had just been gazetted. This amendment related to a Floodplain Management Strategy and an amendment to the Moira Planning Scheme was currently being prepared for exhibition shortly. Under the recently considered Amendment C13 to the Moira Planning Scheme it is proposed to remove the Floodplain Management Policy from Clause 22.02-3 of the planning scheme. It was therefore submitted that this policy should be given little or no weight in consideration of the present matter.

13. Under the Victorian Planning Provision Practice Notes "Applying for a Planning Permit under the Flood Provisions" it states that a development should be refused if it is likely to result in danger to life, health and safety of the occupants due to flooding of the site, there is a reliance on low level access to and from the site ( ie floods by more than 800 millimetres for a 100 year ARI flood event) and it is likely to increase.

14. The Tribunal in considering the application is required to take into account the State Planning (SPPF) and Local Planning Policy (LPPF) Frameworks in the planning scheme. In the SPPF at Clause 15.02-1 one of the objectives of the Floodplain Management is 'to assist the protection of life, property and community infrastructure from flood hazard'. Although it was considered possible to require the floor level of a dwelling to be raised, even 1.7m above ground level, as would be required in this case, other associated structures such as garages and sheds would be subject to severe flood damage. Damage would also be significant to irrigation channels with flood waters likely to pond behind the channels and other obstructions.

15. Mr Tierney submitted 'the cumulative impact of allowing dense dwelling patterns in areas severely affected by deep floodwater, places additional demands and risks for emergency personal, community infrastructure and residents attempting access during major floods, placing risks to life, health and safety'.

16. It is irrelevant to the Tribunal that a permit was previously granted for a dwelling given the Tribunal is required to consider the application under the current provisions of the planning scheme which indicates that the land is unsuitable for the proposal given its location within a floodway that is likely to experience flooding to a depth of close to 2 metres.

17. The Tribunal is of the view that given the size of the lot the location of the land under the Catchment Authority's recently prepared Floodplain Management Plan, the total lack of any indication of the details of the dwelling apart from an indication of its general siting on the land that the decision of the Responsible Authority dated 5 August 2002 should be affirmed.

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