1. The applicant seeks revised wording as follows:

Unless otherwise agreed in writing by the Responsible Authority:

a) At the front of lots and in public open space areas, all retaining structures are to be no greater than 1 metre in height per individual retaining wall.

b) At the side and rear of lots, retaining structures are to be no greater than 2.5 metres in height per individual retaining wall.

c) Where retaining of more than 2.5 metres is required, retaining walls must be staggered with a minimum of 0.75 distance between each stagger and positioned so that associated drainage infrastructure is retained within each lot.

1. Council's approach is said to derive from the PSP and particularly requirements R12, R13 and guideline G15. The applicant contends that the approach in condition 89 is unreasonable in the context of a housing crisis and is a 'misconception' of the requirements and guidelines in the PSP.[3]
2. For completeness, requirement R12 is:

Subdivision applications for land of a slope greater than 10-per-cent must be accompanied by the following information, as appropriate:

• A plan showing lot boundaries, contours, and slope.
• An indication of the type, location and approximate depth of any proposed earthworks.
• An indication of the type, location and approximate height for proposed retaining structures.
• Design concept plans, prepared by a suitably qualified engineer, addressing the appropriateness of the depth of proposed earthworks and use of retaining structures where they are to exceed 1.0 metres in height. The location and approximate grade of any proposed roads and paths.
• Indicative building envelopes.
• Indicative lot access arrangements consistent with Council standards for crossover design.

Any vertical retaining structures in public places (with the exception of those that are part of building walls) must be no more than 1.0 metres in height, unless otherwise agreed by the responsible authority.

Any retaining structures (with the exception of those which are part of building) should be:

• No more than 1.0 metres in height between a dwelling and a street or public space, or where visible from a street or public space.
• Set back at least 1.0 metres from any building envelope.
• Staggered, with a minimum 0.75 metre distance between each stagger to allow for the inclusion of landscaping, where cutting and filling is deeper than 1.0 metres.
• Positioned so that associated drainage infrastructure and structural foundations are fully located within the same lot.

1. From R12 it is clear that retaining structures may exceed one metre in height; it requires a qualified engineer to assess their appropriateness where they do so.
2. R13 requires vertical retaining structures in public places to be no more than 1 metre in height. Although the wording suggests 'in' public places, a broader review of the context in my view suggests this includes 'fronting' public places such streets, footpaths, parks and drainage reserves which would be consistent with this first dot point in G15. In this case the design of the subdivision has achieved the requirement of R13 in the sense that there are no retaining walls more than 1 metre in height fronting public places.[4]
3. G15 is a guideline and thus is discretionary. For the first bullet point in G15 as observed above there are no or very limited exceedances of the 1 metre height for retaining walls in public places. The second limb of the first bullet point is 'or where visible from a street or public space.' Higher retaining walls, over 1 metre and up to 2 metres or more, are clearly visible at the subdivision stage. However, post development, the visibility and impact of higher retaining walls is limited by the dwelling itself and the limited side setbacks. This can be seen in many new subdivisions and developments in the PSP area around Warragul.[5]
4. The third bullet point in G15 identifies that retaining structures should be staggered if cut and fill is over 1 metre with a minimum 75 millimetres between retaining structures. This is also discretionary, and Mr Ravida's evidence is that in practice a greater distance is required between tiers of retaining walls to accommodate the site constraints and soil types in this area. His evidence was also that the additional retaining walls and benched areas add significantly to development costs which are passed on to the purchasers.
5. Mr Ravida outlined the design process and noted that development in an area such as this is a complex and integrated process driven by the topography and slope, need for cut and fill to create relatively level building sites, need to place roads at an acceptable grade and to tie in the finished land surface and linkages to surrounding development sites.
6. Mr Ravida's evidence shows that there are a limited number of walls over 1 metre in height, with a concentration of walls over 1.5 metres in the southeast area bounded between Road 4, Road 6, the site boundary and the floodway reserve. In this area there are some walls over 2 metres in height and one on the northern boundary of lot 326 which proposes to use a staggered arrangement due to the height.
7. In the hearing council argued that requiring staggered retaining walls over 1 metre is a superior amenity outcome, particularly on rear boundaries as the staggered approach allows for a bench which can be landscaped. They did not call evidence to support the proposition, and while I can understand in some instances it may create a superior layered landscaping outcome, overall, I am not convinced that this outweighs the reduced area of useable rear open space and increased costs for those affected lots.
8. Requiring benching and staggered retaining walls on side boundaries would have significant implications for side setbacks and development on the lots. If required, it would likely require a significant redesign of the subdivision which is inconsistent with council's original approval of the permit and associated Estate Development Plan.
9. Overall, I find that making a discretionary height of 1 metre maximum for retaining structures mandatory via condition for all retaining walls is not an acceptable planning outcome in this case. The mandatory height of 1 metre for public spaces as set in requirement R13 is met to an acceptable level in my view.
10. It follows that I consider the wording of condition 89 put forward by the applicant to be a more reasonable approach and I have ordered its inclusion.

SHOULD THE CONDITION RELATING TO EXPIRY BE REVISED?

1. The applicant seeks to change the term of expiry in condition 124(a) from two years to three years to read:

a) The Plan of Subdivision for the first stage has not been certified under the Subdivision Act 1988 within 3 years of the issued date of this permit.

2. The permit was issued in August 2024 and a significant amount of time has passed since then. While this could be said to be of the applicant's making due to the review application, it remains that there is just over 12 months left of the two year period before expiry.
3. In the circumstances and given the significant number of secondary consents in the permit, I consider it reasonable to allow for the longer expiry period in the permit for the first stage and have made the order accordingly.

1. For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

[1] The General Residential Zone is the applied zone under Schedule 1 to cl 37.07.

[2] The Tribunal's decision considers submissions, evidence, supporting hearing exhibits and the statements of grounds. Not all of this material will be referred to in these reasons.

[3] I considered the relationship between these requirements and guidelines in W295 Pty Ltd atf 295 Unit Trust v Baw Baw SC [2024] VCAT 612 commencing at paragraph 80.

[4] Mr Ravida identified a small number of areas where a retaining wall on a side boundary may be over 1 metre in height within the 1 metre front setback.

[5] In the course of the proceeding W295 Pty Ltd atf 295 Unit Trust v Baw Baw SC [2024] VCAT 612 I viewed an extensive number of new subdivisions in the PSP around Warragul.