Findlay v Surf Coast SC [2011] VCAT 1919

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

1. Pursuant to section 60 of the Victorian Civil and Administrative Act 1998, the following person is joined as a party to the proceeding:

1. The decision of the Responsible Authority is affirmed.
2. In permit application 08/0543 no permit is granted.

Mr T Ferrari, planning consultant of St Quentin Consulting

The land is a generally square property with three street frontages comprised of 10 lots. It is used as a holiday park with 75 transportable cabins and a two storey manager's house. It has an area of 10,400 sqm with scattered trees providing an open canopy cover. There is one vehicle entry point off Camp Road at present. The land falls gently from east to west towards the Anglesea River.

To subdivide the land into 17 lots of varying sizes between 459 and 872 sqm, and to remove native vegetation for the construction of roads and services

Section 77 Planning and Environment Act 1987

Clause 42.03-2 To construct or carry out works and to remove vegetation in SLO3

1. Mr Findlay seeks a review of the decision by Surf Coast Shire Council ('the Council') to refuse to grant a permit for an 18 lot subdivision and removal of native vegetation at 11-19 Camp Road, Anglesea.
2. The planning application was received by the Council in September 2008. It was referred to various public authorities and publicly advertised to surrounding properties, and the Council received 11 objections. In September 2009 the Council considered the application at a Planning Committee meeting and determined to refuse the proposal (for reasons that are explained below).
3. Following the lodgement of this application to review the Council's decision, the Tribunal determined in April 2010 that a Cultural Heritage Management Plan was required. This was subsequently prepared and approved by the Registered Aboriginal Party in April 2011.
4. Before this hearing, the Applicant gave notice of its desire to substitute and rely upon amended plans that:
   • Reduce the number of lots from 18 to 17;
   • Move the internal road west by about 2 metres and modify the design of the end of the road;
   • Alter the lot boundaries and generally increase the areas of the lots; and
   • Add a building envelope by nominating setbacks from various boundaries of each lot.
5. The Council had no objection to this substitution, so I granted leave. This means my decision is based upon the amended plans for 17 lots. Mr Gill lodged a statement of grounds in response to these amended plans and I granted leave for him to be joined as a party to this proceeding as there was no objection.

1. The Council's grounds of refusal for the 18 lot subdivision related to:
   • The failure of the subdivision to achieve lots areas and dimensions that enable the appropriate siting and construction of a dwelling, including its solar access, private open space, vehicle access and parking and water management;
   • The failure to provide direct, safe and easy movement for pedestrians and motor vehicles, particularly service vehicles; and
   • The failure to minimise increases in stormwater run-off and to protect the environmental values and physical characteristics of receiving waters from degradation; and
   • The failure to adequately consider the risks posed by an increasing extent, frequency and intensity of coastal hazards arising from climate change.
2. The Council's Notice of Refusal was issued in September 2009. During the last two years the detail of the application has changed and some of these issues have been further addressed. Overall, I find there remain some details that require further consideration, and they will impact on the design and layout of the subdivision. Given the length of time that this matter has been ongoing for the Applicant (over 3 years), I did consider whether these details could be dealt with by way of an interim decision. However, I am unable to be specific about all of the changes that are required and my findings will necessitate further input from various authorities. As such, I have decided to refuse this proposal, but am hopeful that these detailed reasons will assist the Council and the Applicant (in particular) in preparing and considering any new planning permit application.

1. The Corangamite Catchment Management Authority (CCMA) provided comments to the Applicant in January 2010. The Applicant submitted to the Tribunal and the Council a Coastal Hazard Vulnerability Assessment (CHVA) dated March 2010 and then an updated CHVA dated July 2011. Based on this information, Mr Schmied advised:

... Council accepts that inundation, of all forms, of the proposed lots by 2100 is likely to be minor (no more than a 200-300mm depth) and only to a small portion of the lots. Inundation of Bingley Parade is likely to become more regular and to greater depths which would present a risk to people attempting to use Bingley Parade. It is submitted that access to all of the western lots should be from the new road and not Bingley Parade, consistent with the recommendations of the CCMA.

1. The Tribunal recently made a decision to refuse a residential subdivision in Paynesville partly because the low lying land that was to be subject to inundation by 2100 was not appropriate for inclusion in the proposed residential lots, and that a buffer between any residential lots and the land to be inundated should be provided[1]. I raised this decision with the parties during the hearing and they advised this proposal is acceptable in this case because:

1. The site contains 5 lots already with frontage to Bingley Parade and there is existing fill of 0.57-0.75 metres along this edge of the site; 2. The area affected is minimal; and

1. A swale drain is proposed along much of this frontage hence the dwellings are unlikely to be affected by potential inundation.
2. It appears primarily parts of lots 5, 6 and 7 will be affected by inundation at the northwest corner of the site[2]. The CCMA advice is that the upper projected storm tide level will be 2.8 metres AHD[3] and the estimated 1 in 100 year river flood varies from 2.7 metres AHD at Wray Street to 2.63 metres AHD at Hallam Grove.
3. The first purpose of the Residential 1 Zone and each of the overlay controls that apply in this case is to implement the State and local planning policies in the planning scheme. There are a number of principles to be applied to settlement planning in Victoria including siting and designing new dwellings and subdivisions to minimise risk to life, property, the natural environment and community infrastructure from natural hazards such as flooding[4]. In regard to coastal settlement[5], the State planning policy objective is to plan for sustainable coastal development. The strategies to achieve this include:

Avoid development on ridgelines, primary coastal dune systems and low lying coastal areas.

1. The objective for coastal inundation and erosion under State planning policy is to plan for and manage the potential coastal impacts of climate change. The strategies include:
   • planning for sea level rise of not less than 0.8 metres by 2100;
   • applying the precautionary principle to planning decision-making when considering the risks associated with climate change;
   • ensuring that new development is located and designed to take account of the impacts of climate change;
   • ensuring that land subject to coastal hazards is identified and appropriately managed to ensure that future development is not at risk; and
   • avoiding developments in identified coastal hazard areas susceptible to inundation, erosion, landslip/land slide, acid sulphate soils and geotechnical risk.[6]
2. The CHVA (July 2011) includes the following mitigation measures:
   • Provision of a 300mm freeboard above the existing 1% AEP catchment generate flood level of 2.7 metres AHD as a precautionary measure against impact of sea level rise and climate change on flood levels at this site by 2070; and
   • Provision of a 600mm freeboard above the existing 1% AEP catchment generate flood level of 2.7 metres AHD as a precautionary measure against impact of sea level rise and climate change on flood levels at this site by 2100.
3. Mr Schmied and Mr Ferrari agreed in the hearing that these measures are generally required for those lots with a frontage to Bingley Parade. I find this mitigation/adaptation to meet the identified future risk is an inappropriate response in this case as it will require the houses to be built on all but one of the lots along Bingley Parade (6 lots) to have elevated floor levels up to a height of 3.3 metres. In considering the possible future development of the site, this is a concern given the proximity of these houses to the river environs. One of the landscape character objectives in SLO3 is "to maintain a low profile building height that minimises the visibility of building in the broader landscape, particularly where the vegetation canopy height is low or a site is prominently located". I find this site is prominently located adjacent to the river environs including a pedestrian bridge across the river.
4. I note the DPCD Practice Note on Managing Coastal Hazards and the Coastal Impacts of Climate Change (2008) suggests coastal engineering, design or setback responses may be necessary to demonstrate assessed risks can be effectively and sustainably managed. In my opinion, a setback response by way of the setting back of the residential lot boundaries above the 2100 impact of sea level rise and climate change on flood levels is necessary.
5. This means the lot boundaries need to be above 2.7-2.8 metres AHD, and it may also mean the lot boundaries need to be setback up to 3.3 metres AHD in order to minimise the impact of the height of future dwellings to implement the objectives of SLO3. This would ensure the lot boundaries are not in low lying land and, any setback above 2.7-2.8 metres would also create a buffer to the low lying land.
6. My finding about this is reliant upon the mitigation measures identified in the CHVA. The fact that the freeboard requirement rises between 2070 and 2100 suggests there is some uncertainty as to what the river flood levels may be in the future. Given this, there should be some precaution built in to the development potential of this site. If further information becomes available to clarify future flood levels and/or the Council and the Applicant can agree on what an appropriate future building height should be (and hence the necessity for freeboard), it may be possible to locate the lot boundaries somewhere between the 2.7[7]-2.8[8] metre and 3.3 metre levels.

1. Clause 56.07-4 has an urban run-off management objective to minimise increases in stormwater run-off and protect the environmental values and physical characteristics of receiving waters from degradation by urban run-off. The Council advised the CCMA and the Department of Sustainability and Environment (DSE) share a view that this proposal creates an ideal opportunity to take steps to improve the run-off quality to the river, and to ensure any downstream impact is limited to pre-development levels (as a minimum).
2. Mr Schmied explained during the planning application process the Applicant sought to collect run-off in an underground system for discharge into the river. Before this hearing, a drainage plan was circulated proposing the underground system discharge into a bio-retention swale drain running along much of the west boundary (adjacent to Bingley Parade). This swale drain would then discharge to Bingley Parade's existing drainage and then discharge into the river. Mr Ferrari explained this drain will retain stormwater on-site, limit the discharge and improve water quality. The Council welcomes this change but Mr Schmied said it requires further review and detail, including the swale becoming a Council asset that is placed in a reserve vested in Council. Mr Ferrari preferred the swale to be in an easement on the affected lots.
3. I agree with the views of the Council, the CCMA and the DSE that run-off levels should be limited to pre-development levels as a minimum. I agree with the Council that the inclusion of a bio-retention swale is a good step forward in dealing with the retention and quality of water run-off. As such, I also agree with the Council that the maintenance of this asset is important into the future. Hence, I am of the opinion the swale should form part of a reserve to be vested in the Council.
4. I note the swale land will be part of the low lying area from which the residential lot boundaries should be setback. This creates an opportunity for the layout of the subdivision and the layout and design of the bio-retention swale to be reviewed. The stormwater design needs to ensure the swale drain has adequate capacity to achieve pre-development run-off levels. I find there should be more than sufficient land available to provide for this. The low lying land may create further water sensitive design opportunities for the development rather than, or in addition to, the proposed swale. This is a matter of detail that can and should be resolved as part of any subsequent planning application.

1. Planning permission is required to remove vegetation from the site under the SLO3 and the SMO. Mr Ferrari explained there are 68 trees on the site and 21 of those are considered to be remnant native vegetation. The Council's submission acknowledged a "legal right" to remove almost all of the vegetation on the site pursuant to clause 52.43 relating to interim measures for bushfire protection[9]. Hence, the issue of vegetation removal was not a reason why the Council opposes this proposal. Accordingly, the Council has focused upon the question as to whether there will be appropriate new landscaping opportunities as part of this proposal. Mr Schmied submitted it is likely the new lots will have large areas of open space and this will create the potential for greater areas for tree canopy.
2. Mr Ferrari submitted there is potential to retain eight trees, of which only two require planning permission to be removed. The Council advised it was unclear throughout the planning application process which trees, if any, were to be retained as part of the subdivision and future development of each lot. The Council expressed no opinion one way or the other as to whether the proposed retention of eight trees was a good or appropriate planning outcome in this case.
3. It seems to me the fact that all but six trees can be removed without planning permission could be said to undermine the intent of SLO3 as the first landscape objective to be achieved is:

To retain and enhance the native vegetation cover, with emphasis on indigenous species and the Coastal Moonah Woodland vegetation community in particular.

1. The exemptions that apply to existing buildings on the site as a result of clause 52.43 means, on the one hand, much of this site could effectively be moonscaped. However, this planning control is in regard to bushfire protection and it is arguable as to whether all of this vegetation needs to be removed for 'bushfire protection'. I think Mr Ferrari's endeavours to try to retain some of the vegetation on the site is the preferable approach to take to the subdivision and future development of this site. Obviously, as the lot boundaries may change, the opportunities to retain trees will need to be reviewed, and I encourage the Applicant to retain as many trees as is practicable.
2. I asked Mr Schmied about the decision guidelines in the SMO that require consideration (as appropriate) be given to any proposed landscaping and the need to preserve existing vegetation. Mr Schmied submitted the Council has no concern about the capability of the land to accommodate this subdivision having regard to the soil capability report submitted by the Applicant. This report indicates that removal of vegetation is unlikely to have a significant impact on the salinity of the land as it appears to be linked to the river rather than to a separate groundwater issue.

1. Planning permission is required to subdivide the land under the SMO. The Council has raised no concern about the appropriateness of this proposal in terms of its design, siting and servicing having regard to this overlay and the sensitivity, constraints and capability of the land to accommodate this subdivision.

1. There is a new road proposed to be created off Wray Street. It will end in a 'T head' and the road is intended to be handed over to the Council so that it becomes a Council road. The design of this road is a matter of some concern to the Council. In the first instance, the Council's preference is that a through road be created in an east-west direction (between Camp Road and Bingley Parade). The Council's second preference is for the road to have a court bowl end of 23 metres diameter and a footpath along one side with a street light at its entrance. These design changes are not supported by the Applicant other than for the street light.
2. I am not persuaded that a through road is an appropriate outcome, particularly as Bingley Parade is an unmade road and is subject to inundation. Indeed, this situation was acknowledged by the Council (at paragraph 8 above), including that it is not appropriate for lots to gain access via Bingley Parade. Further, I am not persuaded that a through road would ameliorate the need to create small access roads off it in order to gain access to each of the lots that may be created.
3. I am also not persuaded of the necessity for the proposed road to become a Council road that necessitates a design standard that is satisfactory to the Council. Neither Mr Schmied nor Mr Ferrari was able to advise me as to why the proposed road is intended to be a Council road[10], and what benefits flow from this. In simple terms, if the road is to be a Council road, then it seems reasonable that the design and standard of the road should be to Council's satisfaction. However, in this case, it seems unnecessary and a little excessive to require a wide road reserve with a court bowl to serve 12 lots.
4. When I posed the scenario that the road could be a private road managed by an Owners Corporation, the Council raised two concerns. The first is the placing of 24 garbage bins on Wray Street for collection. Wray Street has the characteristics of a sideage or service type road as the two properties on the opposite side of the road have side boundaries to this street and this site also has a sideage to this street at present. This site has a 92 metre long frontage to the street. In my opinion, this length should be more than adequate to accommodate any garbage bins associated with the development of this site. The Council's second concern is the ability for the CFA to access the site in the event of a fire. I agree this is a matter that needs to be dealt with and it is possible that this may necessitate a combination of features including a certain road width and fire hydrants, etc. As such, I am of the view this concern may be able to be addressed.
5. Having made these observations and findings, I do not need to determine what the outcome should be. I will leave that to the Applicant to decide with the understanding that a Council road needs to meet Council's standards and a private road needs to address issues such as waste collection and emergency vehicle access. I suggest the inclusion of a footpath or a road design that clearly delineates it is a shared zone be considered as well given there may be some lots with access only via this road.

1. The MSS acknowledges growth of coastal towns, including Anglesea, is limited by physical constraints such as national parks, rivers and the coast. Anglesea is described in clause 21.11 as a small coastal town with a low percentage of permanent residents boarded by environmentally significant crown land on three sides and by the coastline to the south.
2. The key issues and influences on planning for the town include:
   • Marginal projected population increase due to limited opportunities for new residential development and changing household composition with forecast growth in retirees and lone person households.
   • Recognition of the importance of significant native vegetation to its character and the following key neighbourhood character attributes:
     • the dominance of the indigenous vegetation over the built environment
     • low profile buildings contained within the tree canopy, with small footprints and screened by vegetation.
     • A sense of openness between properties due to the absence of solid fencing, the use of post and wire fences or no fences at all.
     • The use of vegetation to achieve a sense of privacy.
     • Gravel roads, and roads with an informal appearance, complemented by vegetation in the roadside.
3. Two issues identified include the loss of neighbourhood character from re-subdivision, infill development and replacement of older housing stock by larger and bulkier houses; and limited dwelling diversity, particularly smaller dwellings near the town centre and designated tourist nodes to cater for an ageing population and the growth in single parent households.
4. The objectives in the MSS are to preserve and enhance the distinctive low density coastal character of Anglesea and retain a sense of houses disbursed in an informal bush setting as well as providing a diversity of dwelling types and sizes in appropriate areas. The strategies to achieve this include:
   • Apply minimum subdivision lot sizes and maximum development densities that, together with limits to building footprint and hard surface area, ensure adequate area is maintained for vegetation around buildings.
   • Limit the total floor area of buildings relative to the size of an allotment to avoid excessive building bulk and houses that are dominant in the streetscape.
   • Retain a sense of openness between properties by discouraging solid fences and encouraging the use of vegetation to achieve privacy.
   • Retain the informal appearance of access driveways and roadsides when constructing roads and foot paths.
   • Encourage the construction of smaller dwellings on smaller lots within proximity of the commercial precinct.
5. Anglesea is broken up into three precincts and this site is located in precinct C, which is the area within close proximity of the commercial centre where a higher density of subdivision is encouraged. I agree with Mr Ferrari that the planning policies are somewhat conflicting as, on the one hand, they seek to preserve the low density coastal character of Anglesea and, on the other hand, they seek to promote urban consolidation within proximity of the commercial precinct.
6. Mr Schmied explained the Council considers the density of this subdivision is generally satisfactory in the planning policy context. I have already explained that the council is satisfied with the opportunities for new landscaping within the subdivision. Mr Schmied stated the Council is opposed to the inclusion of building envelopes, particularly given the proposed front setbacks are minimal. The Council said these minimal setbacks are not characteristic of Anglesea and will lead to buildings that are more prominent in the streetscape. Mr Schmied pointed out development on each of the lots will require planning approval, hence he said the appropriateness of each design can be considered on its merits as part of any subsequent planning application. Mr Gill agreed with this.
7. Given the concerns I have already expressed, which will require changes to the subdivision layout and lot sizes, I do not intend to make any findings on whether this subdivision responds to the neighbourhood character. It is clear that the Council is generally comfortable with the proposed layout and any concerns are, what I would describe as, matters of detail. As the Council stated in its submission:

... within the context of development being scaled to comply with the policy standards, it is considered that development of the land can follow subdivision in a manner that does not detract from the positive elements of the neighbourhood character.

1. Changes are required to the subdivision to respond to my concerns about climate change and stormwater management. The effort of the Applicant to retain some of the existing vegetation on the site is recognised, and it is hoped this will be pursued as part of any new planning application. A decision will need to be made by the Applicant as to whether the new road to be created will be a Council road or a private road. Once this decision is made, the design of the road can be finalised to suit the appropriate circumstances.
2. I acknowledge that this application has been through a long process in excess of three years. It is my hope that the reasons why I have decided to refuse this application will be of assistance to both the Applicant and the Council so that the subdivision layout can be modified and a new planning application can be sought.
3. For the reasons explained above, I have decided to affirm the Council's decision and order that no permit be issued.

[1] Refer to Lake Park Holdings Pty Ltd v East Gippsland SC [2011] VCAT 1491

[2] I do note a small part of lot 5 may also be affected but I accept that is a very small area that may be affected.

[3] I note the CHVA (July 2011) states 2.79 metres AHD

[4] Extract from clause 11.05-4, page 19 of 21

[6] Refer to clause 13.01-1 of the State Planning Policy Framework

[7] The 1% AEP catchment generate flood level identified in the CHVA (July 2011)

[8] The upper projected storm tide level identified by the CCMA

[9] Clause 52.43 exempts the removal of vegetation within 10 metres of a building used for accommodation irrespective of SLO3 and SMO, therefore it is Council's view that all vegetation can be removed without a permit and it is the Applicant's view only 6 trees require planning permission to be removed.

[10] The Council submitted it has always been a part of the permit application plans, and the Applicant was unaware of why a council road is being proposed.