Franke v Colac Otway SC [2011] VCAT 1615

1. Pursuant to Section 127 Victorian Civil and Administrative Tribunal Act 1998, the Application for Review By Permit Holder lodged on the 4 March 2011 by Mr Bernie Franke of 20 Carroll Road, Fyansford Victoria 3221, is amended by changing the name of "Bernie Franke" to "Bert Franke", of 61 Reigate Road, Highton Victoria 3216.
2. Pursuant to Section 71 of the Planning and Environment Act 1987, the Tribunal directs the Colac-Otway Shire Council to correct Planning Permit PP130/2010-1 by the inclusion of the conditions required by Wannon Water Authority in its capacity as a Referral Authority in accordance with Section 55 of the Planning and Environment Act 1987, as described in correspondence of the 25 November 2010_._ The corrected permit must be circulated to all parties to the hearing and to the Wannon Water Authority. Responses to the corrected permit must be filed with the Tribunal no later than 30 September 2011.
3. The hearing for application P657/2011 is adjourned to a hearing at 10 am on 19 October 2011. The matters to be heard will not be confined to the review conditions.
4. The Tribunal will conduct an accompanied inspection of the subject land at 290 Upper Gellibrand Road Barramunga at a day to be determined prior to the 19 October 2011 in the company of the Applicant for Review and representatives of the Colac-Otway Shire Council, the Department of Sustainability and Environment, the Country Fire Authority and the Wannon Water Authority. Any submissions made during the site inspection will be treated as evidence.

Mr Bernie Franke and Mr Bert Franke, both in person.

Mr Greg Tobin, Solicitor, of Harwood Andrews and Ms Anne Sorensen, Town Planner, Colac-Otway Shire Council.

Mr Geoff Brooks, Department of Sustainability and Environment and Ms. Kelly Tocock, Country Fire Authority, both in person.

Selective timber harvesting (Native Vegetation) in accordance with the endorsed plans.

Application under Section 80 of the Planning and Environment Act 1987.

1. In February 2011, the Colac-Otway Shire Council determined to grant a planning permit No. PP130/2010-1 for a selective timber harvesting of native timber at 290 Upper Gellibrand Road, Barramunga. The Applicant requests that the Tribunal review Conditions 1, 1(a), 1(b), 1(c), 3, 5, 6, 7, 8, 9 and 11.
2. During the hearing, it became evident that:
   • 2.1 The Responsible Authority has omitted to include conditions to the permit required by the Wannon Water Authority.
   • 2.2 Prior to the hearing, the Applicant was unaware of the Wannon Water Authority conditions, which may affect the Applicant's management of timber harvesting from the subject site.
   • 2.3 It was common ground at the hearing that consideration of the referral authority requirements in the planning permit, particularly those stipulated by the Department of Sustainability and Environment, will benefit from a Tribunal site inspection in the company of all parties, plus the Wannon Water Authority.
3. My Order includes an adjournment of the hearing to allow the Applicant time to respond to the Wannon Water Authority conditions, and to conduct an accompanied site inspection.
4. Given that the matters to be considered as a result of the omission of the Wannon Water Authority conditions are broader than the conditions under review, the adjourned hearing on the 19 October 2011 will not be confined to the review conditions.
5. As the accompanied site inspection allows the involvement of all parties to the hearing, any submissions made at the inspection will be treated as evidence.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.