The order of the Tribunal is that the decision of the Responsible Authority is set aside.

A permit is granted for the construction of buildings and works associated with the extension of the camping and caravan park and for the removal of vegetation at 131 Nepean Highway, Dromana, generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit The plans must be drawn to scale with dimensions and three copies must be provided The plans must be generally in accordance with the plans submitted with the application but modified to include:

a

accurate details of the swimming pool and amenities buildings, including floor plans, elevations, external materials and colours, and relative levels of floors and roof ridge lines..

b

Details of all proposed street lighting, including the heights of poles and types of light heads

c

Details of all paving and road surfaces,

2 Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must be generally in accordance with the landscape concept plan prepared by Philip Liston Landscape Consultant (Job No. 384, Drawing No. 3841578 Revision P1) tabled at the hearing of the Victorian Civil and Administrative Tribunal on 6 July, 2005, except that the plan must show:

(a)

a survey (including botanical names) of all existing vegetation to be retained and/or removed

(b)

buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary

(c)

details of surface finishes of pathways and driveways

(d)

a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant

(e)

landscaping and planting within all open areas of the site

All species selected must be to the satisfaction of the responsible authority.

The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.

3 The layout of the land, the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plan must not be altered or modified without the consent of the Responsible Authority.

4 All resident and visitor parking for the development shall be provided within the subject property to the satisfaction of the Responsible Authority. The applicant shall arrange for parking restriction signs to be installed to prohibit parking at all times along the North side of Nepean Highway across the frontage of the property

5 Car parking spaces must be designed to allow all vehicles to drive forwards when both entering and leaving the property, to the satisfaction of the Responsible Authority.

6 Prior to the commencement of any use authorised by this permit the applicant must prepare detailed structural drawings for the construction of' the proposed noise attenuation barrier in accordance with the approved Acoustic Report prepared by VIPAC dated May 2005 (Report No. 360787-TRP-004876-03). These structural drawings must specify details of' the barrier location and construction material of' the proposed noise attenuation barrier. The drawings must be submitted to and approved by VicRoads and when approved such drawings will become the approved structural drawings.

7 Prior to the commencement of' any use authorised by this permit the applicant must:

a

Implement the noise attenuation barrier required in the approved structural drawings and approved Acoustic Report (Report No. 360787- IRP-004876-03) so that the traffic noise impacts generated from the Mornington Peninsula Freeway comply with a noise level of 63 dB (A) L10 (18 hour) or less, for at least 10 years after implementation, as measured at the facades of all the caravan sites nearest the western boundary of the property to the satisfaction of VicRoads

b

Subsequent to the implementation of the approved noise attenuation barriers, an independent VicRoads pre-qualified proof engineering consultant must forward a Certificate of Compliance to VicRoads for confirmation that works have been completed in accordance with the approved structural details

c

Subsequent to the implementation of the approved noise attenuation barriers, the applicant must arrange for noise measurements to be undertaken, at the western boundary of the caravan sites near the western property boundary, by an independent pre-qualified acoustic consultant Where the measurements demonstrate that the approved noise levels are exceeded, the applicant must arrange for additional noise barriers to be installed to ensure the approved noise levels are not exceeded.

8 Prior to the commencement of any use authorised by this permit the applicant must enter into an Agreement with the Responsible Authority and Roads Corporation (VicRoads), pursuant to Section 173 of the Planning & Environment Act 1987, to provide for the following:

a

Residential buildings must be designed and constructed so that there are no windows or door openings on the facade of the building facing the freeway

b

The noise attenuation measures must be maintained by the property owner(s) in a condition which meets the approved acoustic design requirements for 25 years.

9 Prior to the commencement of any use authorised by this permit, application must be made to the Registrar of Titles to register the Section 173 Agreement on the title to the land(s) under Section 181 of the Act. The landowner must pay the costs of the preparation, execution and registration ofthe Section 173 Agreement.

10 Prior to the commencement of any works authorised by this permit, the developer must provide VicRoads with the following:

a

evidence that the Contractor has a public liability insurance policy for at least $10 million, effective for the duration of the works

b

the name, address, business and out-of-hours telephone numbers of the principal contractor.

11 Before the commencement of any works authorised by this permit, the developer must demonstrate to VicRoad's satisfaction that they and their contractors have developed and maintained a:

a

Quality Management System

b

Occupational Health and Safety System

c

Environmental Management System

d

Traffic Management System

12 Prior to the commencement of any use authorised by this permit the applicant must complete all works specified to the satisfaction of VicRoads and the Responsible Authority.

13 Not less than 1 8 metres is to be provided between buildings on each site

14 Before the use starts all buildings and works required in condition 1 must be completed to the satisfaction of the Responsible Authority,

15 A sign(s) not greater than 0. 3m2 must be provided directing visitors to the areas set aside for carparking. The sign(s), its locations and maintenance must be to the satisfaction of the Responsible Authority

16 All areas of the development must be drained to a legal point of stormwater discharge via an underground drainage system or other approved method of stormwater drainage to the satisfaction of the Responsible Authority. This drainage system must include permanent siltation control measures during construction

17 All street lights and lamps used to illuminate the exterior of the buildings and works, must be fitted with cut-off luminaries so as to prevent the emission of direct light onto adjoining roadways and land and no external night lighting shall be filled that results in any adverse visual glare arising from the site, all to the satisfaction of the Responsible Authority

18 Before the use approved by this permit starts, landscaping works as shown on the endorsed plans must be completed and then maintained in a healthy condition, to the satisfaction of the Responsible Authority. Any dead or diseased trees or shrubs must be replaced as soon as possible. The area set aside for landscaping must be used for no other purpose.

19 This permit will expire if one of the following applies:

a

Development is not started within two years of the date of this permit.

b

Development is not completed) within four years of the date of this permit

The Responsible Authority may extend the above periods if a request is made in writing before the permit expires or within the following three months

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Gobbo called Mr S McGurn, town planner of Fulcrum Town Planners and Mr I Swan of SGS Economic and Planning Pty Ltd.

1 This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a permit application for the development of an additional 70 sites and ancillary facilities at the Dromana Caravan and Tourist Park. The Responsible Authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:

The proposed development and use is inconsistent with state and local planning policy and with the objectives of the Green Wedge Zone.

The selling off of the existing sites with the Dromana Caravan and Tourist Park has changed the focus of the park away from that of a tourist park, and this will be further exacerbated by a further stage of development in which up to 30% of the proposed sites would be available for permanent occupancy. With no requirement for other sites to be made available for short term use.

The high proportion of permanent residents (existing and future) within the park is inappropriate at this location, and contrary to state and local planning policy.

The proposed development and use will have an unacceptable impact on the adjacent Dromana Drive in use.

2 The review site is located at the apex of the Mornington Peninsula Freeway and the Nepean Highway and is currently occupied by a caravan park comprising of 138 individual sites. The northern section of the site contains an area previously used as a "pitch and putt" golf facility and the proposal involves extending the caravan park into this northern section by the provision of an additional 70 sites. Ancillary facilities to be provided include an indoor swimming pool, two half court basket ball courts, storage and workshop, laundry and bbq.

3 Access to the extended northern section will be provided via an extension to the existing internal road. A six metre wide landscape strip is proposed along the site's boundary with the Mornington Peninsula Freeway and a further landscaped buffer is proposed near the interface with the adjoining Drive-in.

4 The review site has an area of 5.61 ha with a frontage to the Nepean Highway of 220 m and an abuttal to the Mornington Peninsula Freeway of approximately 400 m. The site is triangular in shape and as I have mentioned above is currently occupied by a well established caravan park in the southern section of the site and a pitch and putt golf facility to the north.

5 The existing caravan park was established in about 1985 and a number of planning permits have been issued subsequent to the original permit. A total of 138 individual sites have been approved within the existing park.

6 I was advised that the existing sites have been leased as either vacant land or caravan/cabin packages and that a similar arrangement is proposed for the 70 additional sites.

7 The Dromana Drive -in adjoins the review site to the east and the balance of the land use to the east of the site is rural in nature.

8 Retail and community facilities are located approximately 2.5 kilometres to the west in the Dromana township.

9 The review site is zoned Green Wedge Schedule 3 under the Mornington Peninsula Planning Scheme. The purpose of the zone is;

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

To recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources.

To encourage use and development that is consistent with sustainable land management practices.

To encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses.

To conserve and enhance the cultural significance and character of open rural and scenic non-urban landscapes.

To protect and enhance the biodiversity of the area.

10 A camping and caravan park is a section 2 permit required use in the zone.

11 A permit is also required to construct or carry out a building or works associated with a section 2 use.

12 The Urban Growth Boundary (UGB) is located to the north and west of the review site on an alignment which generally corresponds with the western boundary of the Mornington Peninsula Freeway.

13 The site is also affected by Schedules 6 and 19 of the Environmental Significance Overlay. The relevant environmental objectives of Schedule 6 to the overlay are;

•

To protect and conserve the environmental systems, bio diversity, native vegetation, habitat areas, land and soil stability, drainage patterns, and stream quality of this area.

•

To promote the sustainable development of rural land and integrated land and catchment management, including the retention and enhancement of habitat corridors and wetlands.

•

To ensure that subdivision and development density is compatible with maintaining the long term natural, agricultural and landscape values of this area.

•

To promote siting and design of buildings and works that is responsive to the open rural landscape character and vistas of this area, and that maintains the scenic value of roads and recreation routes.

•

To protect the landscape values of the area.

14 A permit is required to construct or carry out buildings and works.

15 The environmental objective of schedule 19 is to limit development within environmentally sensitive areas and a permit is required to construct or carry out buildings and works.

16 Clause 57.01 applies to Metropolitan Green Wedge Land. The purpose of the Clause is;

•

To protect metropolitan green wedge land from uses and development that would diminish its agricultural, environmental, conservation, landscape natural resource or recreation values.

•

To protect productive agricultural land from incompatible uses and development.

•

To ensure that the scale of use is compatible with the non-urban character of metropolitan green wedge land.

•

To encourage the location of urban activities in urban areas.

•

To provide transitional arrangements for permit applications made to the responsible authority before 19 May 2004.

•

To provide deeming provisions for metropolitan green wedge land.

17 The Core Planning Provisions for Metropolitan Green Wedge Land are at Clause 57.01. Clause 57.01-1 lists uses which are prohibited on land outside an Urban Growth Boundary or which are permitted subject to compliance with nominated conditions. Prohibited uses include accommodation however a camping and caravan park is a use which is specifically excluded from that prohibition.

18 I was presented with detailed submissions relating to the applicable State and Local Planning Policy Frameworks and it is not necessary for me to repeat that material here. The broad thrust of the applicable policy framework is to contain urban development within the UGB and to maintain the rural land use, landscape setting and environmental values of the Metropolitan Green Wedge. There is also strong policy encouragement for the provision of tourism related uses including tourism related accommodation.

19 I was also referred to a document See - Change, Home and Belonging, Caravan Park Living on the Mornington Peninsula, which presents the findings of study undertaken by the Council's Social Planning and Community Development team on the impact of the increasing loss of caravan parks on residents of the Mornington Peninsula who consider themselves permanent caravan park residents. The report presents a number of findings about the difficulties confronted by permanent residents of caravan parks, but importantly in the context of this case, it identifies an overall decline in the number of caravan sites available for permanent accommodation as a consequence of the closure of parks on the Peninsula and changes in the market generally including increasing prices for sites. The report concludes that those most at risk as a consequence of these changes are residents who own their own dwelling but rent a site, and residents who rent both the dwelling and the site.

20 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The witnesses were made available for cross examination.

21 The Council's principle concern in relation to this application is that the Dromana Tourist Park has, as a consequence of the long term leasing of individual sites within the Park and the increase in the number of permanent residents, become a de facto residential development located outside the UGB, and that any extension of the Park is not supported by policy and is in conflict with the purposes of the zone.

22 The basis of the Council's submission appeared to be that a camping and caravan park located in a Green Wedge Zone ought not be available for permanent residents, or at least there ought to be a restriction on the number of permanent residents within the park. Mr Newman submitted that, notwithstanding the fact that the permit applicant had offered to accept a permit condition restricting the number of sites within the park available for permanent residents, the Council had concluded that it does not have the ability to impose such a restriction by virtue of Clause 518 of the Residential Tenancies Act 1997 which states that:

A planning scheme or permit under the Planning and Environment Act 1987 whether made before or after the commencement of this section cannot limit the duration of residency in a caravan park.

23 Mr Gobbo also submitted that this provision prohibits a permit condition limiting the duration of residency in a caravan park, and this was not disputed at the hearing.

24 In the context of the Council's conclusion that it was unable to limit the duration of residency in a caravan park, Mr Newman submitted that:

.....permanent occupation of such facilities does lead to a caravan park becoming something other than a tourist facility. This is not to say that the provision of permanent accommodation of this nature is not important .............. But Council does need to ensure that such accommodation is provided in appropriate locations. I would suggest in this regard that a site in the GWZ, outside the UGB, is not an appropriate location for the provision of additional sites catering for permanent residents. It may however be appropriate to provide additional sites for tourists in such a location.

25 In effect it was Mr Newman's submission that what is proposed in this application is not a camping and caravan park and ought to be assessed as some other form of residential use, or in his words, a de facto residential development.

26 The Council's concerns in this matter are in my view unfounded and are not supported by the relevant provisions of the planning scheme. The land use term "camping and caravan park" is defined at Clause 74 of the planning scheme as "land used to allow accommodation in caravans, cabins, tents, or the like", and it is a land use which is nested under "Accommodation" which in turn is defined as "land used to accommodate persons". It is significant that unlike other uses nested under accommodation (for example motel and residential hotel) which refer to accommodation being provided for persons away from their normal place of residence, a camping and caravan park is not subject to a requirement that it is a use which can only accommodate persons on a temporary basis. The fact that Clause 518 of the Residential Tenancies Act to which I have referred above, appears to prevent the imposition of a permit condition limiting the duration of residency in a caravan park, confirms my view that permanent residency in a caravan park is contemplated by and specifically provided for in the planning scheme.

27 The Residential Tenancies Act also provides the following relevant definitions:

Caravan Park: an area of land on which movable dwellings are situated for occupation on payment of consideration, whether or not immovable dwellings are also situated here.

Moveable Dwelling: a dwelling that is designed to be movable, but does not include a dwelling that cannot be situated at and removed from a place within 24 hours.

28 In this context, the Council's submission that this proposal is a de facto residential development because it provides for permanent residents, cannot be sustained. The reality is that camping and caravan parks perform a role in the provision of affordable housing within a community and the planning scheme seeks to ensure that these facilities continue to play that role. The importance of that role is recognised in the research report See - Change, Home and Belonging, Caravan Park Living on the Mornington Peninsula, to which I was referred by Mr Newman.

29 The Council's submission that the practice of leasing individual sites within the camping and caravan park on a long term basis has had the impact of fundamentally changing the park's role to that of a provider of permanent accommodation rather than a provider of tourist accommodation, also fails to stand up under close scrutiny. Mr Swan presented evidence which demonstrated that caravan parks generally and the Dromana Tourist Park specifically provide accommodation for the following user types:

•

Tourist/holiday makers being occasional or short term users (1 to 10 days) and longer term stays (up to 6 weeks).

•

Lease holders who have exclusive access to a site and use it at various times throughout the year. Some of these sites maybe "sub let" on a short term basis.

•

Residents being long term leaseholders or those who rent from a leaseholder and who occupy the site as their permanent place of residence.

30 Mr Swan's evidence showed that the proportion of permanent residents residing at the Dromana Tourist Park had increased to 31% in June 2005 from 22% in June 2002. However, the balance of the sites continue to be available for tourist related accommodation in some form, with 10.3% of sites always available for tourists, 21.3% of sites available for tourists off season but used by long term leaseholders in peak season, and 37.5% of sites used exclusively by long term leaseholders at various times over the year.

31 It was Mr Swan's evidence that these user characteristics at the review site are broadly consistent with those exhibited by camping and caravan parks throughout Victoria and nationally.

32 Having regard to the above I am satisfied that the existing and proposed use of the land clearly falls within the meaning of a camping and caravan park and the fact that it makes provision for permanent residents is entirely consistent with the definition of that use. I am also satisfied that the park continues to provide tourist related accommodation and it cannot be concluded that the long term leasing of sites necessarily leads to a loss of tourist accommodation.

33 It is significant to my findings that the proposed extension of the park is appropriate, that a camping and caravan park is a section 2, permit required use in the Green Wedge Zone and the use is not constrained by conditions which apply to many other permitted uses in the zone either by conditions in the table to Clause 35.04-1 or the Core Provisions of Clause 57.01. The Green Wedge Zone and Clause 57 are provisions which have been included in the planning scheme in relatively recent times (May 2004) and I agree with Mr Gobbo's submission that it is reasonable for me to infer that the inclusion of camping and caravan park as an unconditional section 2 use reflects a deliberate decision by those who drafted the zone and Core Provisions to allow for this form of accommodation in the Green Wedge Zone and in locations outside the UGB.

34 In terms of identifying the suitability of this site for an extension of the existing camping and caravan park, it is a positive factor that the site is located within reasonable proximity of services and facilities available within the Dromana township. This was acknowledged by Mr Newman. The review site is also located at the apex of the Mornington Peninsula Freeway and the Nepean Highway and abuts the Dromana Drive-in to the east and it has a narrow common boundary with rural land to the north. I agree with Mr Gobbo that the extension of the existing camping and caravan park into the narrower, northern section of the site is a logical outcome for that part of the site. The extension of the existing use does not have the affect of fragmenting or alienating land in rural use. Similarly, I do not think that the proposal has any discernible impact on the landscape values of this locality, which is already strongly influenced by the existence of infrastructure such as the Freeway and Nepean Highway, and of course the existing camping and caravan park and the Drive-in.

35 With respect to concerns raised by Mr Whitaker, I do not regard these as being sufficient to warrant a refusal of the application or to require a solid fence to be constructed along the common boundary between the two properties, which Mr Whitaker suggested ought to occur. While I accept that Mr Whitaker has had some difficulties with residents of the camping and caravan park observing films being shown at the drive-in through gaps in the landscaping, I regard these matters as inconveniences or annoyances more than anything else and I have not been persuaded that as a consequence of them, the two uses are in any substantial way incompatible. I would have thought that the issues of concern raised by Mr Whitaker would be capable of being resolved by the operators of the two uses working cooperatively.

36 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit issued.

37 In deciding the conditions to be included on the permit I have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons.