Victorian Civil and Administrative Tribunal|2010-04-23

Finlay v Surf Coast SC [2010] VCAT 722 (23 April 2010)

Finlay v Surf Coast SC [2010] VCAT 722

This case is set down for hearing on Monday 8 November 2010 at 10 am when 1 day has been allocated.
The case is fixed for administrative mention before Member Naylor on 1 October 2010.
We direct that, in accordance with cl 11 of Practice Note No. 1 of the Planning and Environment List - General Procedures, and within 21 days of the date of this document copies of two plans namely the indicative Stormwater Management Plan referred to in paragraph 3 of our remarks below, which was circulated to then existing parties under cover of a letter of St Quentin Consulting Pty Ltd dated 22 March 2010, and the further amended subdivision layout plan drawn 25 March 2010 survey reference 10765/09 version 05, and circulated to the then parties with a facsimile transmission of 7 April 2010 by St Quentin Consulting Pty Ltd be provided to:

Mr Travis Ferrari, town planner of St. Quentin Consulting Pty Ltd, appeared for the applicant Brendan Finlay. He presented oral submissions and tendered a written submission.

Mr Ben Schmied, town planner and senior statutory planner of the Shire of Surf Coast, appeared for the responsible authority.

Application under s 77 of the Planning and Environment Act 1987 for review of a decision of the responsible authority to refuse to grant a permit.

Residential 1 Zone and subject to a Significant Landscape Overlay, Schedule 3, and partly subject to a Salinity Management Overlay under the Surf Coast Planning Scheme.

The land in Certificates of Title Volume 1976 Folios 435 to 442 inclusive and Volume 9235 Folios 912 and 913

Irregular but almost rectangular area of land south of Wray Street between Camp Road and Bingley Parade with a frontage of 105.7 metres to the west side of Camp Road, 92.14 metres to the south side of Wray Street and 100.58 metres to the east side of Bingley Parade, having a total area of 10,040m2.

The proposed subdivision fails to achieve the objective of providing lots with areas and dimensions that enable the appropriate siting and construction of a dwelling, solar access, private open space, vehicle access and parking and water management.
The proposed subdivision fails to provide lots with good solar access for future dwellings.
The proposed subdivision fails to provide for direct, safe and easy movement through the subdivision for pedestrians and other motor vehicles, in particular service vehicles.
The proposed subdivision fails to minimise increases in stormwater run-off and to protect the environmental values and physical characteristics of receiving waters from degradation.
The proposed subdivision has failed to adequately consider the risks posed by an increasing extent, frequency and intensity of coastal hazards arising from climate change.

The proposal reasonably satisfies all relevant requirements of Rescode.
The proposal provides acceptable solar access for future dwellings.
The proposal provides adequate/acceptable access for users/occupants.
The proposal does not create sufficient increase in stormwater runoff to threaten the environment values/physical characteristics of receiving waters.
The proposal (and/or subsequent development) will not be threatened by future climate change events (if any).
The proposal achieves Council's policy objectives for the area.

Mainstay Australia v Mornington Peninsula SC & Ors [2009] VCAT 145

Azzure Investments Group Pty Ltd v Mornington Peninsula SC [2009] VCAT 1600

This case concerns a proposal for an 18 lot subdivision of land that has, until now, been used as a caravan park. An issue has been raised as to whether a cultural heritage management plan is required under the Aboriginal Heritage Act 2006 (AH Act). The main part of the hearing on 8 April 2010 was devoted to a consideration of that issue. At the end of the hearing on that day the case was adjourned. This was to enable us to conduct an inspection of the land prior to giving a determination on that preliminary point.
More specifically the burden of the hearing on 8 April 2010 was to consider and determine the preliminary question as to whether a Cultural Heritage Management Plan (CHMP) pursuant to the AH Act and the Aboriginal Heritage Regulations 2007 (AH Regulations) is required. The question of whether such a CHMP is required in this case was raised and given some preliminary consideration in the course of a preliminary hearing conducted by Mr Mark Dwyer, deputy president, on 19 March 2010. He gave an interim determination dated 22 March 2010 following that hearing. The question of whether a CHMP is required was not determined at that stage. The matter was adjourned for further consideration. The remarks and orders made in the interim determination 22 March 2010 invited parties who had participated in the preliminary hearing, that is to say, Mr Finlay and the responsible authority, to discuss this issue further to see if agreement could be reached.
A preliminary view was expressed in the remarks of the interim determination to the effect that, if no further evidence was available, the deputy president thought it likely that a conclusion would be reached where that a CHMP would be required in this case. The notion of discussions between the parties envisaged the possibility the responsible authority might come to a conclusion that a CHMP is not required or, on the other hand, that the applicant might come to the view that a CHMP is required. The question is a live one in relation to which the tribunal must be satisfied. Originally it was a question for the responsible authority, but once it had made a decision and an application was made by Mr Finlay to review that decision, the tribunal becomes the decision maker generally and in relation to this specific preliminary question. It clearly remains our responsibility, even if the parties came to the view that a CHMP is not required in the circumstances. At the preliminary hearing, the point had been raised on behalf of the responsible authority by its representative, Mr Ben Schmied, who also represented that authority before us. Mr Travis Ferrari, town planner, also appeared at the preliminary hearing, and before us, on behalf of the applicant.
The deputy president had less evidence and information before him at the time of the preliminary hearing than was available to us at our hearing. That material included a six page document dated 25 February 2010 of Nicholas Clarke of Clarkelogy. Mr Clarke gave his qualifications as a qualified aboriginal heritage advisor recognised by Aboriginal Affairs Victoria. He also claims a bachelor of science in botany and geology, a graduate diploma in maritime archaeology and a graduate diploma in humanities (aboriginal archaeology). He also refers to experience in archaeological work and practice as a consultant archaeologist over the last 20 to 25 years. The deputy president also had other information conveyed by spoken word and photographs. He summed up his impression by describing the material as "thin" and certainly did not regard it as sufficient to establish an obvious conclusion that no CHMP was required.
We note, by the way, that Mr Dwyer has been involved in the leading cases determined in the tribunal to date in relation to this aboriginal heritage legislation, including the particular questions as to where CHMPs are required. These include the leading cases of Mainstay Australia Pty Ltd v Mornington Peninsula SC[1] where he sat with one of us[2] and also Azzure Investment Group Pty Ltd v Mornington Peninsula SC[3], where he sat alone. We have had regard to those cases, amongst others, in the course of the hearing and in relation to our consideration of the issue before us. We do not regard these cases as inconsistent. Mainstay contains important analyses and lays down a number of important principles. Azzure considers a quite different fact situation and comes to a different, but not inconsistent result.
Previous cases, and particularly the Mainstay case, contained some detailed analysis and discussion of the legislative provisions and how they are to be applied in the circumstances of particular cases. That is not to say that various aspects cannot arise in relation to particular cases that have not yet been considered by the tribunal, but we do not think it necessary, for the purposes of this decision, to repeat in detail what has previously been said, or to provide a treatise on the subject of the legislation generally, or even in relation to CHMP requirements in particular. Rather, we will summarise what is pertinent and get to the point.
There is no doubt, and it is not contested, that this review site is in a location where a CHMP is required, unless a statutory exception has application. An exception, relevant in this case, is as to whether there has been significant ground disturbance. That expression is defined in regulation 4 of the AH Regulations in the following terms.

(a) the topsoil or surface rock layer of the ground; or

by machinery in the course of grading, excavating, digging, dredging or deep ripping, but does not include ploughing other than deep ripping.

For the purposes of this case we have put aside questions in relation to waterways and ploughing including deep ripping. This case concerns a site that is currently used as a caravan park. In fact, there are few caravans to be seen on it, and each of those has a built annex or addition with the caravan permanently fixed in position. These annexes are not the canvas annexes that are used in relation to movable caravans. Apart from those few caravans, almost all of the accommodation is in the form of onsite cabins of the demountable variety. By demountable we do not mean that there is no connection to the ground. Many of them have their own facilities with water, power and sewerage laid on, but, on the other hand, they are not built onto footings and foundations that form part of the building as is normal with houses and cabins.
The issue becomes whether there has been significant ground disturbance in accordance with the above definition. If there has not, then a CHMP will be required. If there has, a CHMP will not been required.
However, the situation is not quite so simple as that. As has been found in previous cases, like Mainstay, there can be significant ground disturbance in relation to part of a site, whilst such disturbance has not taken place in relation to other parts of a site. That was the situation in Mainstay. The determination was that a CHMP was required in spite of the significant areas of the site in relation to part of the site because there had been no significant ground disturbance in relation to the balance.
In Azzure, on the other hand, there was a normal residential allotment supporting a house with various other buildings and works and in relation to which there had been significant ground disturbance over a significant majority of the site. There were little bits where significant ground disturbance was not identifiable, but they were regarded as insignificant in the circumstances, and looking at the context as a whole it was determined that, in Azzure, there was significant ground disturbance, effectively as to the whole so that a CHMP was not required.
In this present case, the parties did consult following the preliminary hearing, and these consultations included attendance at the site by Mr Clarke with a Mr Rosevear on behalf of the responsible authority. However, no one present at the hearing before us attended during that inspection, Mr Ferrari and Mr Finlay were all present before us but none of them were at the Clarke-Rosevear inspection.
As a result of that inspection and consultation with Mr Clarke, Mr Rosevear became satisfied that there had been significant ground disturbance over the whole site, or at least over the whole site but for insignificant bits of it. That view was adopted on behalf of the responsible authority and correspondence was sent to the registrar advising that the parties, including the responsible authority, were satisfied, on the basis of significant ground disturbance, that no CHMP is required. That was the position of the responsible authority at the hearing before us, although it did not represent the personal view of Mr Schmied who retained the misgivings he had originally expressed at the preliminary hearing.
We have ultimately come to a different conclusion. That does not imply criticism of Mr Rosevear or Mr Schmied, for that matter, although it may have been of assistance if a written memorandum was kept of the inspection by Mr Rosevear, in company with Mr Clarke recording what was material of what was seen and done and as to the reasons why the conclusion was reached that a CHMP was not required. However, we are conscious that assessments in relation to whether a CHMP is required, including an assessment as to whether significant ground disturbance has occurred, is by no means an easy one. It is a matter of fact and degree that can arise in relation to situations that are doubtful and where available evidence is scarce. Although some cases will be clear enough, one way or the other, others can fall within a hazy and uncertain middle ground where discernment is difficult and where reasonable views by well informed and intelligent people may vary and give rise to different results. That is so notwithstanding that caution must be exercised in determining that no CHMP is required. We are conscious that such assessments are a new experience for many qualified and experienced town planners who have not been required to undertake such responsibilities in the past and where such disciplines such as archaeology and civil engineering may be more to the point than the normal areas of expertise of town planners.
The council position after the Rosevear/Clarke inspection apparently led to a degree of complacency in relation to this issue in the applicant's camp. Mr Ferrari took it that the CHMP issue had been resolved and was of no further concern. As we have explained, that is not really the situation. We have to be satisfied on the question. This was drawn to the attention of the parties prior to the hearing before us, and in the course of that hearing.
In this connection, we agree with the conclusion reached in the Mainstay case that the onus of establishing this question rests on the applicant who seeks to rely upon it. We need to be satisfied on the balance of probabilities having regard to the nature of the legislation, which includes a relatively strict regime to try and ensure that existing aboriginal heritage sites, artefacts and assets are not overlooked, lost or destroyed.
It may be that some cases arise and will arise where the question of significant ground disturbance is obvious, one way or the other, but many cases arise that are by no means obvious and where the issues of fact and degree involved are difficult and uncertain. It is often necessary for questions to be investigated with some care and evidence to be produced before a tribunal can be expected to be satisfied that significant ground disturbance has taken place. The Mainstay decision included some extensive discussion of steps that will often be indicated and sources of investigation and evidence that can be relevant. These include photographs and aerial photographs, not only of the present situation, but of land circumstances going back over relevant history. Also, oral evidence or other evidence from records and documents as to past and present works and circumstances may be important, even crucial, to a successful outcome from the applicant's point of view on these issues.
In this present case, we have the material that was before the deputy president in the preliminary hearing. We have a current aerial photograph, some scant hearsay assertions and a further document from Mr Clarke dated 22 March 2010.
This document concentrates on the significant ground disturbance issue with particular reference to the Azzure decision. We think that it is fair to say that the case, on behalf of the applicant, was presented to us as an Azzure argument. However, the circumstances are by no means the same as in that case. It might be said that this case falls into a less clear zone somewhere between the Mainstay situation on the one hand and Azzure on the other. This is a much larger area than in Azzure, developed in a different way, and apparently redeveloped to some extent, but with significant areas of apparently undisturbed or insignificantly disturbed land.
This second Clarke document observes that there is no ready means of complete assurance in relation to such questions applying to the whole of the site, but goes on to conclude that there has been significant ground disturbance over the entire site represented by "benching" and other changes to the ground. It is asserted or assumed that these works have been achieved by the use of machinery within the meaning of that word in the definition of significant ground disturbance. We do not intend to discuss here the question of whether machinery is limited to mechanical devices driven by power other than human manual power. However, we are not satisfied that the laying of soil or other "fill" material on top of the ground satisfies the requirement of the definition of significant ground disturbance. Such filling is not grading, excavating, digging, dredging or ripping so as to disturb the topsoil or surface rock layer of the ground. Mere "benching" might be achieved by excavation or filling or a combination of both. The land in this vicinity, and on this site, is not and was not flat ground when in its natural state. On the contrary, without being by any means precipitous, it is obvious that it was and is subject to various rises and falls to differing degrees and in various directions.
Apart from Mr Clarke's second document and the matters we have already mentioned we have little further in the way of evidence beyond what was available at the preliminary hearing. There was some passing hearsay that the family of Mr Finlay have owned or had an interest in the land for the past 27 years and that several other buildings were once on the site. Some now redundant vehicle crossings over the Camp Road kerbing may be indicative of this.
We were conscious, in the course of the hearing, that this issue is a matter of some importance to the applicant, and that it could cause him some significant delay and expense. We sought, so far as it was open to us, to enquire into matters that might indicate significant ground disturbance in relation to the land. In doing this, we were bearing in mind that it is common ground that there is some significant ground disturbance, but not necessarily in relation to all of the site or all but insignificant portions of it. We would regard the constructed gravel driveways with some rollover kerbs and ditches within the site as being significant ground disturbance in relation to those portions of the land. The same might be said in relation to some of the subterranean services provided to sites and some of the structures set into the ground to support cabins. In this connection, we invited the applicant and his representative to consider whether Mr Finlay should give evidence and as to whether Mr Clarke should be called for that purpose. As things are at present, we have only written documents in relation to Mr Clarke and no opportunity for there to be cross examination and testing or clarification of things that he has left in doubt, including the justification for a claim that there has been significant ground disturbance over the entire area. Neither Mr Clarke nor the applicant gave evidence.
In similar spirit, we decided that we should ourselves conduct an inspection of the review site with a view to clarifying our understanding of the evidence, including the written statements of Mr Clarke, and verifying the degree to which we could rely upon it. We advised the parties during the hearing that we would conduct such an inspection on 9 April 2010.
We are now in a position to say that, while we accept that there has been significant ground disturbance to portions of the site, we are not satisfied that such disturbance has taken place in relation to other significant portions of the land. Apart from significant disturbances that we have mentioned such as driveways, kerbs and concrete supports in relation to some cabins, there are also areas where there has been some terracing, installation of retaining walls and some excavation (by manual tools or otherwise). Nevertheless, there are other significant areas under and around cabins and scattered about the site, which have not been obviously disturbed or significantly disturbed. Superficial covering or alteration does not amount to significant ground disturbance, and neither does filling nor benching not involving excavation. We are not satisfied that there has been significant ground disturbance except for insignificant portions of the site as was the case in Azzure, and we do not think that the approach adopted in that case can be applied to the circumstances of this one. As it happened, in the course of our inspection we noticed the property known as 21 Camp Road, which is on another corner of the intersection of Camp Road with Wray Street. That house on that house allotment is a particularly pronounced example of an Azzure site where the footprint of the house, together with almost all of the curtilage has either been built on or excavated so that the insignificant portions of which this cannot be said should be regarded as minimal, insignificant and not relevant.

Accordingly, we conclude that a CHMP is required in relation to this proposal for this site. We anticipate that the obtaining of such a plan, if the applicant pursues this matter, will take a number of months. The convenient course appears to be to set this matter down at this stage for a hearing on 8 November 2010. It is thought likely to take as much as six months to obtain a CHMP and that allows a little latitude. If the matter remains in abeyance until a CHMP is available, and then a new date is fixed, it is likely that there will be a considerable wait, having regard to the pressure of work at the tribunal, and the matter might not be heard until next year.
The matter will be set down for an administrative mention before Ms Naylor on 1 October 2010. The parties are not required to appear on that date. On the contrary, they are required to advise the tribunal in writing by that date as to the then situation in relation to this case and, in particular, as to whether the case is to proceed on 8 November 2010. If, in the meantime, the applicant decides not to proceed with this case the registrar should be advised to that effect in writing. The correspondence should mention the name and number of this case, the fact that it has been listed for administrative mention before Ms Naylor on 1 October 2010 and that it is listed for hearing on 8 November 2010.
However, in the course of the hearing, a number of other procedural matters were raised. As there needed to be an adjournment of the hearing of the merits of this proposal in any event, it was convenient that we should give directions as to those matters so that they can be put in order prior to a resumption of the hearing.
The applicant, Mr Brendan Finlay, has new consultants acting on his behalf. His present town planners came into the case after a notice of decision to refuse to grant a permit was given by the responsible authority. Subsequently, those town planners gave notice of an intention to rely upon amended plans. These amended plans were circulated under cover of a letter of 22 March 2010 written by St. Quentin Consulting Pty Ltd. The first of these plans was a revised subdivision layout dated 22 December 2009, survey reference 10765/09, version 02. Also circulated with that letter was an indicative Stormwater Management Plan drawn by Peter Barry & Associates Pty Ltd dated January 2010 reference 0841E. This second plan was intended to indicate how questions of stormwater drainage, including retardation of discharges of water from the site, might be achieved. It is not a final solution. In fact, Mr Ferrari, the town planner who appeared on behalf of the applicant, indicated that it had been previously provided to the responsible authority with a request for comments. Such comments have not been forthcoming to date.
Circulation of these documents so close to the hearing date would not comply with the directions of the tribunal in relation to amended plans. However, we have received them and considered what further notice of them needs to be given.
Before dealing with that, we should note a further proposed subdivision layout plan circulated by St. Quentin Consulting Pty Ltd with a letter sent by facsimile transmission on 7 April 2010, the day before the hearing. This is a proposed further amended subdivision layout plan drawn 25 March 2010, survey reference 10765/09 version 05. This second proposed amended plan is the one that the applicant now wishes to proceed with. We will direct that copies of the version 05 plan and of the indicative drainage plan should be sent, in accordance with cl 11 of Practice Note No. 1 of the Planning and Environment List - General Procedures to:
- (a) the statutory referral authorities,
- (b) the objectors who lodged written objections with the responsible authority,
- (c) the owners and occupiers of numbers 3 and 5 Hallam Grove, Anglesea,
- (d) Corangamite Catchment Management Authority,
- (e) the Geelong office of the Department of Sustainability and Environment.
Since the notice of refusal was given a new overlay has come into operation effecting part of the land. As from 14 January 2010, part of the land has been subject to a Salinity Management Overlay under cl 44.02 of the Surf Coast Planning Scheme. Pursuant to cl 44.02-7 the Department of Sustainability and Environment is a referral authority to which the application should be referred together with any site capability report. We consider that the application should be so referred. In that connection, consideration needs to be given to cl 44.02-5, which sets out various application requirements. The applicant needs to consider whether further information should be provided pursuant to that clause or in relation to a site capability report and to advise the responsible authority within 14 days of the date of this document as to whether such further information will be submitted to it. We will direct the responsible authority to refer the application in accordance with cl 44.02-7.
Mr Schmied, the town planner who appeared on behalf of the responsible authority, made some reference to a coastal management hazard assessment. In his view, the assessment provided to the tribunal for information purposes only was insufficiently clear or conclusive as to what mitigation steps are necessary and being proposed. We mentioned this, just as a reminder that, in an assessment of the merits of the case these matters will need to be clear. For example, a suggestion that there is a need to "provide adequate free board" is all very well, but some specification as to what is required in that connection will be needed.
Mr Schmied raised a question as to whether we should direct the applicant to call expert evidence in this connection. We indicated that we would not tell the applicant how to conduct his case, although it is likely that the comment will have been noticed. Furthermore, of course, the responsible authority will be free to call evidence in relation to that question.
We note that the Coastal Vulnerability Assessment of March 2010 prepared by Water Technology Pty Ltd makes reference at paragraph 4.3 on page 5 to three forms of coastal related inundation hazards. One of these is dry weather flooding of the estuary due to closure of the entrance and ponding of fresh water. We understand that this refers to the possibility of a sandbar forming a barrier or partial barrier to the flow of river water into the sea. The paragraph goes on to say that it is understood that independent advice on catchment generated flood risks has been obtained from the Corangamite Catchment Management Authority and that these risks are not considered further in the Coastal Vulnerability Assessment documents. We mention this here as a reminder that we may need to be satisfied in relation to this aspect.

Heritage Regulations 2007

Finlay v Surf Coast SC [2010] VCAT 722

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Finlay v Surf Coast SC [2010] VCAT 722 (23 April 2010)

Parties

Legislation Cited (1)