The proposed subdivisions will rationalise a number of titles, provide appropriate road frontage and proper access, create lots with an orientation that better responds to steep slopes, provide road connections to allow subdivision of adjoining land and minimise the need for additional access points to Nepean Highway. Both subdivision proposals have merit and represent improvements on existing lot configurations and access arrangements.

1. The land is exempt from the subdivision controls at Clause 3.0 of Schedule 2 to the Design and Development Overlay. Subdivision must be generally in accordance with the plans (two sheets) that form part of this document. The number of lots created must not exceed 21 in the Whitecliffe Avenue precinct. All other relevant requirements of the Frankston Planning Scheme continue to apply to the land.
2. Had the Restructure Plan not formed part of the Planning Scheme under Clause 52.03, the proposed subdivision would be prohibited under the DDO2 provisions.[7]
3. As alluded to above, it seems fair to say that the planning merits of the proposed 're-subdivision of the land and creation of a roadway' was not the main focus of Mr Gale's opposition to the overall project.

1. We are mindful that this application does not seek planning approval for the construction of a dwelling on either of the proposed lots, or the construction of the road on Mr Gale's land. Rather, the issues with respect to engineering matters simply relate to the road construction on the review site and any servicing implications.
2. The evidence of Mr Emmett is that the area in which the road is proposed on the review site has a slope of approximately 15 degrees. This is consistent with our observations on site. His evidence is that the proposed road construction will be compatible with the existing roadway, where some subgrade improvement is incorporated with a flexible paving surface adopted in the form of interlocking pavers. Services will be provided through the roadway.
3. Mr Emmett's evidence is that there are two types of slope instability that could potentially occur at this site and thus effect the proposed road construction. [8] These are earth flows (creep) and earth slides.[9]
4. The risk assessment indicates that movement of up to 100mm may be possible, resulting in a moderate risk to the road and services. This would require repair. The evidence is that risk management strategies could reduce this risk to an acceptable level (ie. a low risk). These measures include:
   • the provision of a suitable drainage system along the southern property boundary to convey surface and subsurface run off water and groundwater to the foreshore.
   • the drainage system being constructed so as to remove groundwater intercepted and cater for stormwater catchment produced by run off flows.
   • the construction of the roadway using specified paving and sub-base treatment.
   • the management of seepage water during site excavation.
   • revegetation of the surrounding area with suitable species selection, and the avoidance of buried irrigation systems.
5. An ongoing management and maintenance regime is also recommended.

1. We are satisfied that the Incorporated Document provides the strategic intent for the future lot configuration and access arrangements for this area of Oliver's Hill. The Restructure Plan is an incorporated document within the Planning Scheme. The Explanatory Report that formed part of the amendment that incorporated the Plan into the Frankston Planning Scheme noted:

The proposed subdivisions will rationalise a number of titles, provide appropriate road frontage and proper access, create lots with an orientation that better responds to steep slopes, provide road connections to allow subdivision of adjoining land and minimise the need for additional access points to Nepean Highway. Both subdivision proposals have merit and represent improvements on existing lot configurations and access arrangements.

1. On the basis of the evidence before us, we are satisfied that the lot sizes proposed provide the opportunity for a building envelope which is not subject to high or severe erosion concern. The lots are generally in accordance with the Oliver's Hill Restructure Plan.
2. We are satisfied that the proposed subdivision satisfies Clauses 56.03-5, 56.04-2, 56.04-3, 56.04-5, 56.06-8 to 56.09-2. Each lot is capable of containing a rectangle measuring 10 metres by 15 metres[10]. We consider that the proposed subdivision will respect the existing neighbourhood character and respond to and integrate with the surrounding urban environment, as the proposed lot sizes are consistent with those lots to the north within the Oliver's Hill Restructure area.
3. We are satisfied that the subdivision proposes a lot configuration of a sufficient size that will provide good solar access for any future dwellings[11] to be constructed on each lot. As the lots have a size ranging between 1583 and 2445 sq.m., both are of a size capable of providing space around any subsequent dwelling to maintain and enhance the vegetation setting of the neighbourhood.
4. The subdivision identifies that the proposed road will remain as common property and the draft conditions proposed by Council identify necessary management arrangements for this roadway[12]. The subdivision is capable of being serviced with draft conditions provided by South East Water and United Energy.

The Buildings and works (new section of road to be built on subject land)

1. The proposed subdivision does not involve any buildings and works, aside from the construction of a road on the review site. A planning permit is required to construct the road under the EMO, DDO and SLO.
2. A separate planning permit will be required to construct a dwelling on either of the two lots to be created, and for a road to be constructed on the adjoining site at No. 616.
3. Under the EMO, a permit is required to construct a building or construct or carry out works, including roadworks. It includes specific objectives and application requirements which seek to appropriately manage potential land slip.
4. Under the DDO2, before deciding on an application the responsible authority must consider:
   • The appropriateness of the buildings or works having regard to the Preferred Neighbourhood Character statement for the area, and land capability including land form, slope, erosion risk, drainage and the presence of remnant vegetation.
   • The likely affect of the development on soil and coastline stability.
   • The extent to which the development provides sufficient unpaved area and landscaping appropriate to the coastal setting.
   • The visual impact of any development when viewed from Port Phillip.
5. Council agrees with the evidence of Mr Emmett that the geotechnical risk associated with the road construction is likely to be moderate (with respect to risk to property) and negligible (with respect to risk to life). Suitable conditions have been proposed with respect to the road construction and maintenance which were not opposed by Mr Gale.
6. To avoid duplication with our relevant discussion further above, we rely on that discussion and confirm that we are satisfied (relying on the geotechnical expert evidence of Mr Emmett) that any geotechnical risks associated with the construction of this new section of road can be reduced to a satisfactory level. The new road will be built in a relatively flat area and there is already an informal gravel track in essentially the same location where the new road will be built.

1. Vegetation removal is required to facilitate the construction of the private road on the subject land. This triggers a permit under both the SLO3 and under Clause 52.17.
2. Council's delegate report identified that the vegetation on the land requiring removal consists of a small stand of immature drooping Sheoak within a highly modified and weedy site. Council does not oppose the removal of vegetation sought (which consists of a remnant patch with an area of 0.013 hectares), subject to a condition requiring an offset requirement of 0.001 general biodiversity equivalence units, which are to be located within a specified area. This is required via proposed Condition 4 which is not opposed by the permit applicant.
3. Mr Gale similarly does not oppose the landscape removal.
4. The decision guidelines under the SLO require the responsible authority to consider the extent to which the buildings and works are designed to enhance or promote the landscape character objectives of the area, the impact of buildings and works on significant views and the impact of the proposed buildings and works on the landscape due to height, bulk, colour, general appearance or the need to remove vegetation.
5. Under the SLO3, the landscape character objective to be achieved is to maintain the well vegetated landscape character of Frankston South. The application proposes the removal of vegetation within the area of the proposed roadway on the site.
6. Under the SLO, before deciding an application to remove, destroy or lop substantial trees the responsible authority must consider:
   • Demonstration of the avoidance hierarchy (avoid, minimise, mitigate principles) in relation to substantial trees on a site.
   • Whether the removal of substantial trees including for defendable space has been avoided or minimised having regard to the bushfire risk and other available siting options.
   • The impact of the proposal on the visual landscape or biological values of the area.
   • The extent, location and species to be used in any proposed replanting, with preference given to indigenous plants and within the appropriate Ecological Vegetation Class when appropriate.
   • The impact of development on soil stability.
   • Whether alternative siting, design or screening is appropriate to reduce the visual impact of development.
   • The guidelines and principles of Australian Standard AS4970-2009 - Protection of Trees on Development Sites.
7. Mr Emmett's evidence recommends suitable revegetation following the road construction to assist in stabilising the site which we accept. We consider the relatively small loss of vegetation to facilitate the subdivision to be a reasonable outcome on balance, on the basis that the loss is offset by new replanting in accordance with an Offset Management Plan as required by the draft conditions.
8. We are satisfied that as the extent of proposed vegetation removal relates only to the proposed roadway, there are no unreasonable impacts on significant views or landscape.
9. We refer to our relevant comment above, in terms of our satisfaction with the 'engineering' and 'geotechnical' aspects of the proposal. We are satisfied that the extent of the necessary native vegetation removal is relatively modest and will not materially impact on the stability or erosion risks in this location.

TRIBUNAL'S FINDINGS ON P2928/2017 CONDITIONS APPEAL

1. The Council and permit applicant provided a set of conditions (which we call the 'consent conditions') which modify those contained in Council's NOD. The consent conditions made both minor and (some might say) major changes to the intent of the conditions. In our view, the minor changes relate to greater clarity around the intent of the respective conditions; whereas the major change relates to matters going to the timing of the construction of the road on the subject land. Ms Lardner, on behalf of her client, opposes the consent conditions.
2. We were not persuaded by the consent conditions relating to the deferral of the road construction on the subject land, which allows the applicant to enter into a Section 173 Agreement deferring its construction until such time as a dwelling is constructed on the review site.
3. The particular circumstances of this site, we consider, warrant the certainty that the road be constructed prior to the issue of a Statement of Compliance for the subdivision that creates the two lots and the roadway.
4. We consider that the construction of a private road that will provide benefit to the two lots is required prior to the creation of two separate lots that may be subsequently sold to two individual owners. This is consistent with Clause 19.03-2S which requires the timely and efficient provision of infrastructure that meets the needs of the community.
5. We are mindful that no planning permit has been sought to construct the road over Mr Gale's land. We also recognise that once a Statement of Compliance is issued, two developable lots then exist on the subject land. A planning permit would then be required to be issued for a dwelling on either of these lots. We are content to leave it up to the combination of the 'planning process' at this future time, plus negotiations between the owner(s) of these two new lots, as to how the cost of the new road over No. 616 is allocated and dealt with in practice. We have ensured in the permit conditions that this road over No. 616 must be built before the granting of a permit for a dwelling on either new lot.
6. We have redrafted the conditions, based on those included on the NOD. Notably, we have made further refinements to specify that the private road as shown on the plan of subdivision must be constructed prior to the issue of a Statement of Compliance for the subdivision. Secondly, we have incorporated a new condition requiring the entering into of a Section 173 Agreement that will require that the road access across No. 616 owned by Mr Gale be constructed prior to the development of a dwelling on either of the two lots created by the subdivision approval. Finally, we have amended the conditions to reflect the geotechnical recommendations contained in Mr Emmett's evidence, relating to ongoing management of erosion risk which were not opposed by the permit applicant.

1. For the reasons set out above, we have granted the application sought in all three proceedings, - see our orders above, subject to the final version of the draft permit conditions set out in Appendix 1 to this decision.

• The (re) subdivision of the subject land into two (2) lots and a 'road' and associated buildings and works and vegetation clearance, involving the following planning controls - General Residential Zone Schedule 1, Design and Development Overlay Schedule 2, Erosion Management Overlay Schedule 1 and Environment Significance Overlay Schedule 1.

1. Before the Plan of Subdivision is certified under the Subdivision Act 1988 a right of enduring vehicular access across 616 Nepean Highway must be obtained or secured to the satisfaction of the Responsible Authority.
2. Before the Plan of Subdivision is certified under the Subdivision Act 1988 a storm water drainage strategy that demonstrates that effective disposal of storm water drainage can be provided without detriment to the proposed site and other properties must be prepared to the satisfaction of, and be approved by, the Responsible Authority.
3. Before the Plan of Subdivision is certified under the Subdivision Act 1988 a functional layout plan showing alignment and construction details of the new road to be constructed (New Road) must be prepared to the satisfaction of, and be approved by, the Responsible Authority.

(a) will comprise the section of road to be constructed in the location shaded pink on the Plan of Creation of Easement prepared by Lawlor and Loy Vic Ptd Ltd, Ref 7878-CE, Version 2 (Plan of Creation of Easement); and

(b) will provide a connection to the existing all-weather trafficable road shaded green on the Plan of Creation of Easement.

1. Before the Plan of Subdivision is certified under the Subdivision Act 1988 an 'Offset Management Plan' must be submitted for approval by the Responsible Authority. The 'Offset Management Plan' showing appropriate offsets location is to clearly define the required net gain obligations to compensate for the removal of 0.013 hectares of remnant patch, equalling provision for off-set of .001 general biodiversity equivalent units.

When approved, the plan will be endorsed and will then form part of this permit.

Maps or plans forming part of the 'Offset Management Plan' must be drawn to scale with dimensions (where appropriate). The plan must include:

(a) A description of the existing vegetation (including but not limited to location, area (ha), Conservation Status, EVC. Habitat ha assessment, LOT, any rare or threatened fauna/flora etc.) be removed and any vegetation to be retained.

(b) Provision for off-set of .001 general biodiversity equivalent units.

(c) A description and location of the proposed offset site.

(d) A description of the type of offsets to be provided.

If the offset is to be met by the purchase of offset credits this must occur and the appropriate credit receipt provided to the Responsible Authority before the vegetation is removed. If offsets are to be provided on site the owner must meet any conditions for such as may be required by the Responsible Authority which must include entering into an agreement under section 173 of the Planning and Environment Act 1987 to permanently protect the offset area. The permit holder must pay the reasonable costs of the preparation, execution and registration of the agreement on the certificates of title to the land.

1. The subdivision as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

1. A Statement of Compliance will not be issued until all works to construct the New Road and service infrastructure have been completed to the satisfaction of the Responsible Authority.

1. Trees and native vegetation to be retained must be protected from disturbance associated with the development in accordance with Australian Standard AS4970-2009.

1. Before any road/drainage works associated with the subdivision start, detailed construction 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 incorporate all relevant recommendations contained in the statement of evidence prepared by Mr Scott Emmett of Intrax Consulting Engineers (identified in the footer as S#92706 - VCAT LRA - 634 Nepean Highway Frankston South) and appended Geotechnical Site Investigation and Landslide Risk Assessment dated 26 April 2017.

1. Prior to the issue of a Statement of Compliance, roadworks, drainage and associated works must be provided and constructed at the expense of the permit-holder to the satisfaction of the Responsible Authority. All works must be constructed in accordance with plans and specifications approved by the Responsible Authority and must include details of:-
   • (a) sealed pavement construction with edging as and if required by council;
   • (b) drainage;
   • (c) minimisation of earthworks and vegetation disturbance with the plans identifying vegetation in the vicinity of the works, what is to be retained or removed and the tree protection zones of the vegetation;
   • (d) revegetation preferably using suitable indigenous species;
   • (e) measures implemented to minimise the risk of erosion and destabilisation of the geology of the land with due reference to the geo-technical report forming part of the application;
   • (f) pavement constructed to a standard capable of accommodating waste service vehicles and turning manoeuvres;
   • (g) the making good of any damage done to the road or infrastructure installed within the road shown green on the plan attached to these conditions caused by the permit holder or anyone acting on behalf of the permit holder, at the expense of the permit holder;
   • (h) the ongoing inspection and maintenance of the drainage system, ground water and storm water in accordance with the recommendations contained in the statement of evidence prepared by Mr Scott Emmett of Intrax Consulting Engineers (identified in the footer as S#92706 - VCAT LRA - 634 Nepean Highway Frankston South) and appended Geotechnical Site Investigation and Landslide Risk Assessment dated 26 April 2017;
   • (i) the installation of, and ongoing geotechnical inspections and monitoring of, 2 inclinometers in accordance with the recommendations contained in the statement of evidence prepared by Mr Scott Emmett of Intrax Consulting Engineers (identified in the footer as S#92706 - VCAT LRA - 634 Nepean Highway Frankston South) and appended Geotechnical Site Investigation and Landslide Risk Assessment dated 26 April 2017.

1. The New Road, inclusive of associated drainage, must be maintained in good condition. The New Road will be classified as a private road and its maintenance will not be taken over by the City of Frankston. The owner(s) of the land must maintain the New Road to a reasonable standard at the owner(s) cost.

Section 173 Agreement - Road on adjacent property

1. Prior to the issue of a Statement of Compliance an agreement under section 173 of the Planning and Environment Act 1987 must be entered into between the permit holder and the Responsible Authority. The permit holder must pay the reasonable costs of the preparation, execution and registration of the agreement on the certificates of title to the land.

Such agreement must provide that prior to the issue of a planning permit for the construction of a dwelling on the land, that a new Road over No. 616 Nepean Highway must be constructed to the satisfaction of the Responsible Authority.

1. Prior to the commencement of works a Construction Environmental Management Plan must be submitted to and approved by the Responsible Authority. When approved the information will be endorsed and then form part of the permit. Any plans submitted as part of the information must be drawn to scale with dimensions and three copies must be provided. The Plan is to include details of the following:
   • (a) Identification of possible risks throughout the construction process and response measures/ procedures to be implemented to ensure that no significant adverse environmental impacts occur, including by not limited to:
     1. Erosion control during and post-construction.
     2. Sediment run-off control.
     3. Vegetation protection.
     4. Identification and presence of indigenous flora and fauna species prior to and during construction.
     5. Minimising weed and pathogen spread.
     6. Construction equipment access to the site and storage locations.
   • (b) Details on who will implement and oversee the on-ground environmental management.

1. Prior to the issue of a Statement of Compliance, a statement made by the Geotechnical Practitioner who prepared the Geotechnical Assessment or Landslip Risk Assessment must be submitted to the satisfaction of and be approved by the Responsible Authority. The statement must confirm that the recommendations contained in the statement of evidence prepared by Mr Scott Emmett of Intrax Consulting Engineers (identified in the footer as S#92706 - VCAT LRA - 634 Nepean Highway Frankston South) and appended Geotechnical Site Investigation and Landslide Risk Assessment dated 26 April 2017 have been complied with and the permitted development is suitable to be used or occupied for the purpose for which permission has been granted.

1. Before any land development works commence (including any demolition, excavation, tree removal, the delivery of building/construction materials and/or temporary buildings) the permit holder must advise all persons undertaking the vegetation removal/works on site of all relevant conditions on this permit.
2. To prevent the spread of weeds listed under the Catchment and Land Protection Act 1994, all construction and maintenance equipment, earth moving equipment and associated machinery, must be made free of soil, seed and plant material before being taken to the works site and again before being removed from the works site to the satisfaction of the Responsible Authority.

1. Each lot shown on the endorsed plans must be drained to the satisfaction of the Responsible Authority in accordance with the storm water drainage strategy required pursuant to condition 2 to the satisfaction of the Responsible Authority.

Telecommunications - Prior to Statement of Compliance

1. The owner of the land must enter into an agreement with:
   • (a) a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider's requirements and relevant legislation at the time; and
   • (b) a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
2. Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:
   • (a) a telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider's requirements and relevant legislation at the time; and
   • (b) a suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

1. The owner of the subject land must enter into an agreement with South East Water for the provision of potable water supply and fulfil all requirements to its satisfaction.
2. The owner of the subject land must enter into an agreement with South East Water for the provision of sewerage and fulfil all requirements to its satisfaction.
3. The owner of the subject land must enter into an agreement with South East Water for the provision of separate services to each individual lot.

1. The applicant must enter into an agreement with United Energy for an underground supply of electricity to each lot shown on the endorsed plan.

1. This permit will expire if one of the following circumstances applies:-
   • (a) The subdivision is not certified within two (2) years of the date of this permit;
   • (b) The subdivision is not registered within five (5) years of the date of certification.

The Responsible Authority may extend the periods referred to in (a) if a request is made in writing before permit expiry or within six (6) months of the permit expiry date.

If a request is made out of time, the Responsible Authority cannot consider the request and the permit holder will not be able to apply to VCAT for a review of the matter.

APPENDIX 2 - MORE DETAILED RECORD OF THE HEARING PROCESS**

1. The three proceedings before us were designated a 'complex case' by the Tribunal and (on a combined basis) were set down for hearing on 29-31 May 2018.
2. When the hearing commenced, it became evident that the barrister acting for Mr Gale (Ms Lardner) wished to raise a number of procedural queries on the first morning of the hearing. Prior notice of these matters had not been provided to either the permit applicant or the Tribunal. Although some of these queries were dealt with in a more straight forward manner, others were more involved and required detailed discussion.
3. To avoid repetition, in dealing with these various queries raised by Ms Lardner, we provided detailed oral reasons at the time, as to why we were making the rulings that we made. Notably, we provided detailed oral reasons as to why we would simply be taking a neutral approach as to the ownership/legal status of Whitecliffe Avenue and whether or not Whitecliffe Avenue constitutes a 'public highway'.
4. Suffice to say that we ruled that this is a quite distinct and potentially complex issue, where any proper legal resolution of it would need to be separately resolved on another day, probably through the courts rather than at VCAT[13]. We note that in Hickey v Port Phillip CC [2000] VCAT 1919, the Tribunal (constituted by Deputy President McNamara and Member Davis) stated that:

We accept in general that in exercising the jurisdiction under the Planning and Environment Act 1987 the Tribunal is not primarily concerned with or called upon to make determinations as to title or to decide issues under the general law of property.

1. Having only started the hearing proper after lunch on the first hearing day, it became clear that we would require further scheduled hearing time to do an accompanied site inspection and for the permit applicant to present its case. Hence we issued procedural orders on 4 June 2018, setting down four additional hearing days commencing on 26 November 2018, with the first morning used for an accompanied site inspection.[14]
2. We also had a brief Directions hearing on 31 August 2018 and issued associated procedural orders to deal with the gazettal of Amendment VC148. Although Council then helpfully provided with a 'briefing paper' on VC148, all parties agreed that little turned on VC148 for the purposes of these combined proceedings (and we endorse this view).
3. Curiously, on the last working day before the fresh hearing on 26 November 2018, the Tribunal received a letter dated 23 November 2018 from an otherwise unaffected neighbour (Mr and Mrs Watson), claiming that the Watsons own Whitecliffe Avenue and wishing to be heard before us. A Tribunal staff member contacted them and advised that due to the tight hearing timeframes involved, they would need to attend at the beginning of the 27 November 2018 hearing day.
4. In resuming the hearing process on 26 November 2018, the accompanied site inspection went smoothly and Ms Lardner completed her main submissions by the end of that day. There was a brief appearance by Mr Rath at the beginning of the 27 November 2018 hearing day, acting for the Watsons. We confirmed that for oral reasons provided earlier in the hearing, we would be taking a neutral approach to the legal status of Whitecliffe Avenue and whether or not it constitutes a 'public road'. Mr Rath was content to then take his leave. In summary, we see the position/interests of the Watsons as being irrelevant to our discretion in these combined proceedings.
5. Over the balance of 27 November 2018 and then most of the two following days, we received Mr Peake's written submissions for the permit applicant and received the expert evidence which he called. Mr Peake's written submission included submitting that Section 36(1) should be applied narrowly rather than broadly. This was contested by the other parties. To ensure procedural fairness, we indicated that we would allow further submissions on this issue 'on the papers' after the hearing.
6. The hearing process was completed later in the morning on the final scheduled hearing day. We note that there was some debate before us about how long Ms Lardner should need for her 'right of reply on new points'. In the situation where no party had formally objected, we allowed Ms Lardner to spend approximately an hour to present her 'right of reply'. When Mr Peake then requested the chance to make a brief comment in response, this was challenged by Ms Lardner. However Ms Marcus then submitted that in the situation where Ms Lardner had been given real leniency in being allowed to present an hour long reply, it would be unfair for the Tribunal to 'chop off' Mr Peake's final comment. The gist of our oral ruling at the time was that we saw Ms Marcus' submission as carrying real weight and considered it reasonable as a matter of procedural fairness for all parties[15] (not just Mr Gale) that Mr Peake was allowed to make his brief comment.
7. By Christmas 2018, we had received from all three parties their follow up written submissions on whether Section 36 of the Act should for our purposes be applied in a 'narrow' or a 'broad' manner. We have taken these final written submissions into account with the findings in this decision.

APPENDIX 3 - TRIBUNAL'S FINDINGS ON MR GALE'S OPTIONS 2-8 (PROVIDED SIMPLY OUT OF COMPLETENESS)

Problem of lack of consent from neighbouring owners for Options 2-8/highly qualified civil engineering evidence of Mr Levenshus/evidence of Mr Turnbull

1. In relation to how workable or practicable any of Options 2-8 would be, it counts against them that they each involve neighbouring land, where no evidence was provided to us that any of the relevant neighbouring land owners would or have voluntarily agreed to any such alternative access arrangements. Rather, common sense suggests that it is probable that any such neighbour would be concerned about the implications of such access across their own land and hence likely to object to same.
2. We see real weight in the following submission taken from 12.9 of Mr Peake's written submission at the hearing:

Mr Levenshus assessed the series of eight "options" most of which were presented to him by Mr Gale. He conceded that the only two viable options were options 1 and 4. And in relation to option 4, he conceded that he has only done a "centreline" analysis and that he has not considered the need for cut, fill and batter of slopes.

noting that Mr Levenshus is not a geotechnical expert and that hence Mr Gale did not present any such expert evidence to us.

1. It strongly counts against all of Options 2-8 that Mr Turnbull's expert traffic engineering evidence is that none of these options would provide a workable vehicle access to the subject land. Mr Turnbull is a very experienced witness and we consider this evidence to be credible. Where Ms Marshall's expert evidence differs from that of Mr Turnbull, we are unpersuaded by Ms Marshall.

1. It seems fair to say that by the end of the hearing, the only alternative access route being actively pressed on the Tribunal by Ms Lardner was Option 4 i.e. down the shared front driveway of No.'s 636 & 638 Nepean Highway and the across the open yard area of No. 636. We find there to be major uncertainty about the practicality/usability of this option, such that we are unconvinced that this would be a workable or practicable option.
2. Notably, the shared driveway is relatively long, narrow, meandering and steep and includes a 'blind corner' closer to Nepean Highway. Unlike the fairly straightforward situation with the layout of the proposed vehicle access to the subject land from the north, this shared driveway to the south (over most of its length) is not constructed from pavers that would be more resistant to land-slip. Hence it is unclear whether this shared driveway could readily cope with the additional traffic movement without deteriorating in condition and becoming vulnerable to serious cracking/slipping.
3. Otherwise, we have significant concerns regarding:
   • The narrower width of this shared driveway to the south, in terms of its capacity for two cars to on occasion pass each other safely.
   • The risk of a head-on vehicle accident posed by the 'blind corner' closer to Nepean Highway.
   • The close proximity of trees to the shared driveway, at certain places.
   • The fact that (unlike with the proposed northern vehicle access) a south-bound driver on the highway wishing to enter the shared driveway would in practice need to drive some distance further past the entrance to that driveway, do a u-turn and then drive back to that driveway entrance. This is because the Nepean Highway entrance at the top of the driveway owned by Mr Gale (alone) has its own dedicated 'turn right' lane for south-bound highway traffic, with an associated break in the raised median strip running along this section of the highway.
4. These concerns are reinforced by the expert evidence of Mr Turnbull regarding Option 4. Mr Turnbull did not support Option 4 on the basis of what he regarded as the unsatisfactory sight distances involved, the narrow width of the shared driveway and the left in-left out nature of the shared driveway connection to Nepean Highway. Where the expert evidence of Mr Turnbull and Ms Marshall differed on this issue, we prefer the evidence of Mr Turnbull.
5. We are also conscious that the driveway to the south of the subject land being a shared driveway, there seems a real possibility that not one but two neighbouring owners may object to the necessary use of the shared driveway.

1. By way of preliminary comment, it is significant that in the Bik decision, the Tribunal did not look at other possible access points in a theoretical sense, but took a pragmatic approach in considering to what extent any such other options would be "uneconomical", "inefficient" or "expensive". This reinforces that even if it were shown that we needed to consider Options 2-8, we need to do so in terms of whether such options would be practicable and workable. For example, it would be inappropriate and contrary to the relevant caselaw for us to take the approach that we should factor into our Section 36 analysis that a permit applicant such as this should be assumed to have an unlimited amount of project funds available and/or assumed to have a very high project risk tolerance. Rather, the question is what cost and/or level of risk is workable/practicable in the circumstances.
2. With respect to Options 2-3 and 5-8 discussed at the hearing, taking this practical/workable approach, we find that these options in many respects had a 'air of unreality' and/or a 'desperate flavour' to them, such that their credibility is threadbare.
3. It is highly doubtful whether any of these other options would be viable in practice, or at best they would only be viable at such a huge expense that we believe a typical owner would see the situation as unworkable.
4. It is an immediate complication to any of these options that this hill-side area is highly vulnerable to land-slip, and hence the necessary engineering solutions would need to cope with not only the major 'slope' but also the problematic and potentially dangerous landslip issues. It is likely with Options 2-3 and 5-8 that there would be a substantial degree of 'cut and fill' and/or battering involved, which would exacerbate the costs and risks involved.
5. Certainly it is clear that any of these other options would be very problematic in practice. They would all involve some degree of native vegetation removal and the likely scenario of large (possibly huge) costs to seek to deal with the engineering challenges involved.
6. We note that Mr Gale did not call any expert evidence as to the anticipated substantial extent of necessary 'native vegetation' removal. Whilst Mr Gale did call civil engineering evidence from Mr Levenshus and we do not query his civil expertise per se, we agree with Mr Peake that it counts against Options 2-8 that the permit applicant alone called geotechnical evidence from Mr Emmett. We say 'counts against' in that Olivers Hill self-evidently has major overt landslip issues and in this context, it is a fair point by Mr Peake that there is a particular need for any alternative access options to be considered from a geotechnical perspective (which Mr Emmett alone has core expertise in).
7. It is significant that Mr Emmett did not support any of Options 2-3 or 5-8, in terms of the stand out geotechnical risks and problems involved.
8. Dealing with these other options in some more detail, suffice to say that:
   • Options 2 and 3 involve utilising the 3.05 m wide walkway running from the subject land, east up to Nepean Highway. Apart from the very constrained width of this strip of land, it is self-evident that this eastern route is exceptionally steep and very scrubby. This was made very obvious to us during our site inspection, when we inspected this route from both the bottom and the top. The geotechnical engineering challenges to try to achieve a viable vehicle access route that copes with this steep slope and the associated costs would we expect be huge. It is also unclear whether permission would be granted for the necessary native vegetation removal - because of the scrubby nature of the land in question, there would be significant native vegetation removal involved. It is very telling that Mr Gale's expert traffic engineer Ms Marshall concedes at page 27 of her written report that Option 2 would be unfeasible and that Option 3 would only be feasible if additional land could be acquired, to widen this purported access route.
   • Option 5 would involve using the top section of the shared driveway to the south of the subject land, then creating a new vehicle access route (crossing over a short additional section of No. 636) so as to connect up to the eastern end of the subject land. It is anticipated that the new driveway would curve its way down to the middle of the subject land. See our comments above about the limitations to possible use of this shared driveway. Notably, this Option 5 would involve additional vehicle movements in and out of what is already a blind corner, which raises obvious 'traffic safety' issues. It is also self-evident that this is a very steep and scrubby area and hence Option 5 would involve much of the same geotechnical engineering/native vegetation removal problems discussed above with Options 2 and 3. Where Ms Marshall at page 27 of her report describes Option 5 as 'feasible', we consider this to carry little weight, given that the very challenging geotechnical, engineering and native vegetation issues involved are outside of her core expertise.
   • Option 6 is similar to Option 5, but with the driveway access through the eastern section of the subject land being straight rather than curved. See our comments above on Option 5. Where Ms Marshall at her page 27 describes Option 6 as 'feasible', we note that her discussion of Option 6 consisted of four lines of text in her report and that she does not have formal qualifications to deal with geo-technical, engineering or native vegetation removal matters.
   • Option 7 is described in the Ratio traffic report as proposing "...to use the 3.05 easement between the dwellings at the eastern end of the easement and to then curve north into Lot 632 before curving back to the south into Lot 634A, then matching up with the 3.05 easement again". Similar to our comments above, this option would seem very ambitious from an engineering perspective, in needing to deal with the major slope and landslip issues. Also significant native vegetation clearance would be involved. We confirm that at her page 27, Ms Marshall concedes that Option 7 would not be feasible unless additional land was acquired.
9. We regard as credible the expert evidence called by the permit applicant that none of Options 2-8 would be workable/practicable options for vehicle access from the subject land up to Nepean Highway. We have already referred above to the significant concessions made by Mr Gale's traffic expert Ms Marshall about Options 2-8. We have also highlighted that it was a significant shortcoming that Mr Gale did not call any geotechnical expert evidence, and that Mr Gale's civil engineer Mr Levenshus conceded by the end of his evidence at the hearing that the only feasible options were Options 1 and 4.
10. In summary, for the reasons set out above, we find that none of Options 2-8 are practicable/workable options. Rather, we are satisfied that Option 1 is the only such option, in utilising the existing paved driveway to the north of the subject land, in the situation where the new section of road to be built would be relatively flat and hence fairly straightforward to construct.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] In such discussion, regardless of whether our use of language involves the singular or the plural, any rulings involving a question of law are made by Member Martin alone.

[3] See for example the discussion at [13] and [15] of the Snipe decision, and also at [16] of Curry v Casey CC & Ors [2010] VCAT 2101.

[4] Notably Minister for Energy, Environment and Climate Change v Morton [2017] VSC 774 at [30] and the well known Project Blue Sky decision.

[5] See [5.12] of Mr Peake's post-hearing submission.

[6] This quote taken from page 12 of Mr Peake's written submission at the hearing.

[7] Schedule 2 to the DDO does not allow the creation of lots less than 2,500 sq.m. even where it involves the re-subdivision of existing lots.

[9] These are derived from the Australian Geomechanics Society Landslide Taskforce

[13] We also indicated that we were concerned that there might be other neighbours (beyond the scope of this proceeding) who would want to have a say in any formal resolution of this issue.

[14] Whilst there would not normally be such a long delay until the second batch of hearing days, this was due to logistical difficulties with finding fresh dates that suited all three parties.

[15] Which we have a responsibility to provide under Sections 97 and 98 of the Victorian Civil and Administrative Appeals Tribunal 1998.