//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] VCAT 1311
respondent. The decision of the Responsible Authority is affirmed. The Tribunal directs that a permit must not be granted.
VCAT refused a proposed residential common-property subdivision because evidence showed the downstream drainage system (connected to the First Mildura Irrigation Trust) was overloaded after a historic flow restriction had been removed and the Trust objected to accepting further urban stormwater. The Tribunal rejected the applicant's argument that prior approvals created an entitlement, holding that previous permits granted on an erroneous view of drainage capacity do not oblige approval once the inadequacy is known. Because the applicant produced no evidence that the subdivision's marginal impact on flood risk was insignificant or could be mitigated, the Tribunal affirmed the Responsible Authority's refusal and directed that no permit be granted.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,782 words · generated 11/07/2026
Freeman & Freeman (the applicant) sought review of the Mildura Rural City Council's refusal to grant a permit for a residential common-property subdivision on land in Sixteenth Street, Mildura. The Council had refused the permit on the ground that "The subdivision will result in added stormwater runoff in excess of the capacity of the existing infrastructure" ([1]). The First Mildura Irrigation Trust (the Trust) objected to the grant of a permit because the Trust's sub-surface drainage system had been overloaded following a December 2002 storm event. Investigation revealed that a flow restriction device, originally installed in about 1975 to limit outfall flow to 0.312 cubic metres per second, had been removed; the volume of urban stormwater entering the Trust drains therefore exceeded that 0.312 cumec limit ([4]–[6]).
1 cited instrument linked from this judgment.
Council had, independently, identified limitations in the wider drainage network. A February 2001 study indicated that, based on then-existing development levels, the system had capacity only for relatively frequent events (described by the Tribunal as "one in three or one in four year storm events") and Council was pursuing a long-term Sunraysia Drainage Strategy with an uncertain timeframe for works ([9], [7]).
The applicant argued the land had been rezoned to residential on the basis of the South Mildura Drainage Scheme and that prior subdivisions in the area had been permitted; therefore the applicant said their subdivision should be allowed and the Trust should be obliged to accept the stormwater ([8], [11]). The Trust and Council relied on the evidence that the flow restriction had been removed and the system was overloaded, and the Trust refused to accept additional flows ([6], [9]).
VCAT (Member Anthony Liston) concluded that, on the evidence, the existing outfall drainage system was inadequate and that the Tribunal could not ignore that fact simply because prior approvals had been given on an erroneous assumption of adequacy. Further, there was no evidence demonstrating that the marginal impact of the proposed subdivision on flooding would be negligible or that mitigation (for example floor level conditions) would be adequate; thus the Tribunal affirmed the refusal and directed that a permit must not be granted ([14]–[16]).
The Tribunal's decision rests on three linked factual and legal points:
Factual finding of inadequacy: The Trust's investigations after the December 2002 storm established that a historic flow restriction had been removed and that urban stormwater entering the Trust's drainage system exceeded the previously agreed 0.312 cumec limit. Council's commissioned study also indicated the system's limited capacity. These factual findings established the practical inability of the existing system to cope with additional runoff ([6], [9]).
Legal approach to previous approvals: The Tribunal treated the many prior approvals within the drainage scheme area as having been granted on an erroneous understanding of drainage capacity. The Tribunal emphasised that past error cannot be used to require the Tribunal to grant a permit once the inadequacy is known: "the fact that permission has been granted for subdivision in the past on the basis of an erroneous view about the adequacy of outfall drainage, should not be the basis for granting a permit in circumstances where the inadequacy of the outfall drainage system is known" ([14]). In short, prior inconsistent decision-making does not create an entitlement to approval.
Evidentiary responsibility and uncertainty: The applicant argued that the marginal contribution of this subdivision to overall flooding would be inconsequential. The Tribunal accepted this as a possibility in theory (noting, for example, that it "might be possible to estimate the one in a hundred year flood level" and set minimum floor levels ([15])), but it emphasised that no evidence was provided to quantify marginal impact. Because of the absence of evidence, and because downstream horticultural lands might be affected, the Tribunal declined to assume negligible impact and refused the permit ([16], [17]).
Thus, the Tribunal applied ordinary planning discretion informed by factual findings about infrastructure capacity and by the absence of proof of acceptable mitigation or negligible impact.
Before this decision there was a factual background where much of the South Mildura area had been rezoned and progressively subdivided since the 1970s on the basis of the South Mildura Drainage Scheme. Many subdivisions were approved over the ensuing 30 years under the assumption that the drainage arrangements (including the Trust connection and the flow restriction) provided adequate outfall.
After this decision, the Tribunal's reasoning underscores three principles of application in similar Victorian planning contexts:
VCAT's decision therefore reinforces a conservative, evidence-based approach to approving development where public infrastructure constraints and downstream third-party interests are in issue.
"The subdivision will result in added stormwater runoff in excess of the capacity of the existing infrastructure." ([1])
"the flow restriction device originally installed in 1975 had been removed and that the volume of urban stormwater entering their sub surface drainage system was far greater than the 0.312 cumecs agreed to." ([6])
"the fact that permission has been granted for subdivision in the past on the basis of an erroneous view about the adequacy of outfall drainage, should not be the basis for granting a permit in circumstances where the inadequacy of the outfall drainage system is known." ([14])
"There was no evidence in this case in relation to the marginal impact of this subdivision on the drainage system in the urban area." ([16])
"It might be possible to estimate the one in a hundred year flood level, under the existing infrastructure conditions, and specify minimum floor levels for houses within the subdivision." ([15])
This decision will be particularly instructive where the following facts arise:
When those features are present, the Tribunal's approach indicates that a responsible authority and a reviewing tribunal will give weight to present evidence of inadequate infrastructure and will require substantive technical evidence to displace that concern.
The text of this VCAT decision does not discuss subsequent appellate or judicial treatment of the particular reasoning in this case. The decision is a VCAT Member's reasons; it is binding only in the sense that it is persuasive administrative decision-making in the Victorian planning context. To identify how later courts or tribunals have treated Freeman & Freeman v Mildura RCC would require a search of subsequent case law and citations to this decision in later judgments or VCAT decisions. The present reasons themselves do not report subsequent judicial treatment.
Several legal and practical issues remain open or were not resolved on the material before the Tribunal:
In practice, applicants faced with similar downstream infrastructure constraints should commission robust hydrological modelling, propose feasible and costed mitigation works, and, where possible, secure downstream acceptance or contractual arrangements before relying on prior zoning or past approvals.
Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Residential 1 Zone. Subdivision State and Local Planning Policy Framework. Zone Purposes. Adequacy of drainage infrastructure.
The order of the Tribunal is that the decision of the Responsible Authority is affirmed. The Tribunal directs that a permit must not be granted.
1. This is an application to review the refusal of the Responsible Authority to grant a permit for a residential subdivision of land at Sixteenth Street, Mildura. The first Mildura Irrigation Trust objected to the grant of a permit for the subdivision on the basis of the inadequacy of the stormwater drainage system, and the Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reason:
1. The subdivision will result in added stormwater runoff in excess of the capacity of the existing infrastructure.
2. The parties at the hearing of the application for review relied on both written and oral submissions, a number of letters, plans and other documents were tendered to the Tribunal.
3. The subject land is a relatively small parcel of land falling within a much larger area of Mildura South which under the Mildura Planning Scheme falls within a Residential 1 zone. It is the history of the rezoning of this land, and its subdivision and redevelopment over time which is very pertinent to this application for review.
4. At about 1975, the former Mildura Shire Council prepared the Mildura South Drainage Scheme and it is understood that this scheme formed the basis of a rezoning of rural land for residential purposes. The Drainage Scheme related to much of the land bounded by Deakin Avenue, Fifteenth Street, Sandmatoaie Avenue and Sixteenth Street. The subject land falls within this area. Outfall drainage from the drainage scheme area discharged to a drain forming part of the first Mildura Irrigation Trust sub surface drainage system. This outfall arrangement is a result of a somewhat informal agreement between the parties at that time, and the correspondence between the parties which is evidence of the agreement, indicates that the flow of water from the drainage scheme into the Trust drains was to be restricted to 0.312 cubic metres per second(cumecs).
5. The area featured by the original drainage scheme has over the last almost 30 years been extensively subdivided for residential purposes, with only a relatively small percentage of the area remaining unsubdivided.
6. In December 2002 a moderate storm event lead to the Trust's sub surface drainage system being overloaded and the Trust became concerned about the implications of this overloading on the service it provides to its horticultural clients. On investigation the Trust discovered that the flow restriction device originally installed in 1975 had been removed and that the volume of urban stormwater entering their sub surface drainage system was far greater than the 0.312 cumecs agreed to. Consequentially the Trust decided that they would accept no more urban stormwater into their system and ultimately objected to this permit application.
7. Independently to this the Mildura Rural City Council has been investigating the adequacy of its urban drainage systems, and as part of a broader "Sunraysia Drainage Strategy" is embarking upon a long term drainage scheme for the Mildura South area which would ultimately provide adequate drainage infrastructure to the subject land, but the timeframe for the provision of such infrastructure is uncertain, and likely to be in the relatively distant future.
8. It was argued by the Applicant that the land was rezoned to residential on the basis of the South Mildura Drainage Scheme, the area since then has been developed on the basis of that scheme, the subject land can be readily connected into the drainage infrastructure of that scheme, and that therefore their subdivision should be allowed on the basis of a drainage connection into the existing drainage infrastructure, and that the first Mildura Irrigation Trust should be obligated to accept the stormwater from this drainage scheme system.
9. Mr Pridgeon submitted in response that the volume of urban stormwater entering the Trust drainage system exceeds the agreed amount, the Trust does not exist to provide urban infrastructure, and the Trust cannot be obliged to accept additional stormwater flows. The South Mildura Drainage Scheme Infrastructure comprises drains, which are in turn connected to a retarding basin (the centennial basin in Deakin Avenue), and from there connects into the first Mildura Irrigation Trust Drainage system. The Council commissioned a study of the capacity of this system, and in February 2001 a report was presented to the council which indicated that the existing drainage system, based on the levels of development existing at that time, had only the capacity to absorb a one in three or one in four year storm event.
10. The proposed subdivision is a common property subdivision, and therefore is a higher density subdivision than common within the whole drainage system. Nevertheless, it is reasonably clear that it had not been for the perceived problem in respect of outfall drainage, the Responsible Authority would have issued a permit for the subdivision albeit with some modification as to layout etc.
11. In a sense the permit applicant is arguing that the refusal of permit is unfair because:
* Permits have been issued for the subdivision of nearby land, within the drainage scheme area, within weeks and months of the issue of the Notice of Refusal in this case,; and
* Over the last 30 years many permits have issued for the subdivision of much of the land within the drainage scheme area.
12. The decision of the first Mildura Irrigation Trust, in December 2002, not to accept any further urban and stormwater into its system, has clearly had the effect of creating a group of winners and losers. Subdivision applications which were dealt with prior to the decision have been approved, and this application which was addressed after the decision has been refused.
13. I basically agree that the decision to refuse the current proposal on the basis of inadequate outfall drainage, is unfair vis a vis the preceding decisions over many years to permit numerous subdivisions within the drainage scheme area, when it now must be recognised that in most of those cases of the outfall drainage system was already inadequate.
14. However, on a purely objective basis, the fact that permission has been granted for subdivision in the past on the basis of an erroneous view about the adequacy of outfall drainage, should not be the basis for granting a permit in circumstances where the inadequacy of the outfall drainage system is known.
15. The history of the development of the land within the drainage scheme area, in the accelerated urbanisation in the area in recent times, might be a basis for saying that a permit should be granted, because of the marginal impact of this subdivision, on the risk of flooding, was so small as to be inconsequential. Indeed it might be possible to estimate the one in a hundred year flood level, under the existing infrastructure conditions, and specify minimum floor levels for houses within the subdivision.
16. There was no evidence in this case in relation to the marginal impact of this subdivision on the drainage system in the urban area. Moreover, an assessment of the impact of further subdivision is even more uncertain having regard to the potential effects on horticultural land down stream from the drainage scheme area..
17. It might be true that from a drainage perspective the cat is out of the bag, and that the development of the remaining small parcels of undeveloped land within the drainage scheme area will have no significant impact on the risk of flooding either within the drainage scheme area itself, or the downstream horticultural areas which would also be affected because of the reliance of the first Mildura Irrigation Trust sub surface drainage system. The difficult is I have no evidence in this regard, and therefore I can only make a decision on the basis of the evidence that the existing drainage system is inadequate, having regard to normally applicable standards and that therefore the subdivision should not be permitted.
Freeman & Freeman Surveyors
Mildura RCC [2003] VCAT 1311
The decision of the Responsible Authority is affirmed. The Tribunal directs that a permit must not be granted.