RESPONSIBLE AUTHORITY: Macedon Ranges Shire Council

MEDIUM NEUTRAL CITATION: [2003] VCAT 1580

With respect to permit application no P202-841, the Responsible Authority's decision to grant a permit is affirmed. A permit is granted for a reduction in car parking for use as shop in accordance with the development shown on the plans endorsed under planning permit No. P202-840 on land at Lots 1-8, LP 32441 and Crown Allotment 2, Section B, Township of Gisborne, 10-20 Aitken Street, Gisborne. The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued on the 28 February 2003.

With respect to permit application no P202-840, the Responsible Authority's decision to grant a permit is varied. A permit is granted for the development of buildings and works, car parking and associated landscaping in accordance with the endorsed plans on land at Lots 1-8, LP 32441 and Crown Allotment 2, Section B, Township of Gisborne, 10-20 Aitken Street, Gisborne. The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued on the 28 February 2003 but with the following variations:

(i) The following new conditions 1 and 2, to be included on the permit:

1. Before the commencement of the development, amended 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 must be generally in accordance with the plans identified as TP03 - TP06 Revision A, LS-01-TP and La - 02 - Revision C, but modified to the satisfaction of the Responsible Authority to show:

(a) the floor level of all buildings to be set at 413.8 AHD,

(b) the car parking layout along Brantome Street, Robertson Street and Aitken Street to be modified to be consistent with the layout approved by VicRoads and Macedon Ranges Shire Council, and

(c) the provision of landscaped islands adjacent to the end car spaces numbered 55 and 59 on the application plans.

2. The loading bay must be made fully waterproof to prevent seepage under the building slab, to the satisfaction of the Responsible Authority.

(ii) Condition 1 on the Notice of Decision to Grant a Permit to be included on the permit as condition 3.

(iii) Condition 2 on the Notice of Decision to Grant a Permit to be included on the permit as condition 4 and with references to "condition 3 and condition 4" to be amended to refer to "condition 5 and condition 6".

(iv) Condition 3 on the Notice of Decision to Grant a Permit to be included on the permit as condition 5.

(v) Condition 4 on the Notice of Decision to Grant a Permit to be included on the permit as condition 6. Part 4.1 of the condition to be renumbered 6.1 and the wording amended to read as follows:

6.1 That car parking and footpaths shall be provided in Brantome Street, Robertson Street and Aitken Street generally accordance with the plan identified as DRG No. CS06 dated 22 July 2003 or as required to be modified and approved by VicRoads and the Macedon Ranges Shire Council.

Parts 4.2 and 4.3 of the condition to be renumbered as parts 6.2 and 6.3 respectively.

(vi) Condition 5 on the Notice of Decision to Grant a Permit to be included on the permit as condition 7.

(vii) Condition 6 on the Notice of Decision to Grant a Permit to be included on the permit as condition 8 with the part 6.1 to be renumbered 8.1 and the wording amended to read as follows:

8.1 The floor level of any buildings must be constructed at least 300mm above the 100 year ARI flood level of 413.5 AHD (ie: 413.8 AHD).

(viii) Conditions 7 to 11 (inclusive) on the Notice of Decision to Grant a Permit to be included on the permit as conditions 9 to 13 (inclusive).

The Responsible Authority is directed to issue permits in accordance with this order.

Permit applicant: Mr I Pitt, SC, of Best Hooper solicitors.

Applicants for Review: Mr J Gobbo QC and Mr M Townsend, Barrister, instructed by Abbott Stillman and Wilson, Barristers and Solicitors.

Responsible Authority: Mr B Lancashire, Planning Officer.

Minister for Water: Mr Neil Watson, Department of Sustainability, Floodplain Management Unit.

1. These were two applications by objectors under s 82 of the Planning and Environment Act 1987 against decisions made by the Macedon Ranges Shire Council to grant permits with respect to two permit applications seeking different permissions under the planning scheme in relation to the same development on land at 10-20 Aitken Street, Gisborne [the subject land].

2. Permit application no P202 - 0840 [which is the subject of application for review no P686/2003] seeks permission for the construction of buildings and works in the form of a supermarket, specialty shops and associated works including on site car parking. Permit application no. P202 -0841 [which is the subject of application for review no. P685/2003] seeks permission for a reduction in car parking required under clause 52.06 of the planning scheme.

3. At the hearing Mr Pitt SC, Mr Gobbo QC assisted by Mr Townsend, Mr Lancashire and Mr Watson tabled and spoke to written submissions to which they added further oral argument. I was also presented with an array of other material relevant to the consideration of the merits of the proposal including photographs of the subject land and surrounding area, various plans, maps and diagrams.

4. In addition to the submissions and other material, I heard expert evidence from a number of witnesses. Mr Gobbo called Dr A McCowan, an engineer with qualifications and expertise in the assessment of flooding related issues and hydraulic modeling; Mr M Cawood, an engineer with expertise in the development of floodplain management strategies and risk management and Ms C Dunstan, a traffic engineer. Mr Pitt called Mr N Craigie, an engineer with expertise in flood management and hydraulic modeling and Mr B Johnson a traffic engineer. The evidence in chief of all witnesses was set out in reports.

5. At the commencement of the hearing I dealt with a number of preliminary matters.

6. First, Mr Pitt sought leave to withdraw a third application for review [no. P1217/2003] lodged by the permit applicant under Section 80 of the Planning and Environment Act 1987 against conditions. This application was set down to be heard as part of the same proceeding. Mr Pitt advised that the request to withdraw the application followed successful negotiations between the permit applicant and VicRoads. Mr Pitt advised me that the agreements reached with VicRoads are set out in a revised plan [DRG No. CS06 dated 22 July 2003]. The other parties offered no objection to this application being withdrawn and an order granting leave to withdraw was issued on the 31 July 2003.

7. Second, Mr Pitt requested that the permit application be amended by substituting modified plans [TP03 - TP06 Revision A, LS-01-TP and La - 02 - Revision C]. The other parties offered no objection to the amendment. I allowed the amendment under clause 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

8. Third, Mr Pitt advised that the DSE's Floodway Management Unit, which acts on behalf of the Minister for Water, has reviewed the 1 in 100 year flood level that is applicable. During the course of his submission Mr Watson went on to confirm that DSE would accept buildings with a floor level of 413.6 AHD with flood proofing up to 413.8 AHD. Mr Pitt indicated that the applicant would accept a condition requiring the floor level of the buildings to be set at 413.8 AHD.

9. Fourth, Mr Pitt expressed concern about the late service of additional material from Dr McCowan and Ms Dunstan's report. Mr Pitt indicated that whilst he could deal with the additional material forwarded by Dr McCowan, he requested that Ms Dunstan's evidence be excluded given its lateness and that there was insufficient time for Mr Johnson to check its accuracy. Mr Pitt said that the applicants for review had ample notice of the hearing and the permit applicant should not be disadvantaged by further delay. Whilst I appreciated Mr Pitt's concerns, I considered that Ms Dunstan's evidence related to one of the keys matters in dispute in the proceeding. In the event that Mr Pitt found that he required more time to respond to the evidence, I indicated that it would be likely for it to be given and that there are remedies for any unreasonable disbenefit to his client. I allowed Ms Dunstan's evidence to be heard and considered.

10. The subject land is located on the north-west corner of Aitken Street and Robertson Street, Gisborne and extends through to have a third frontage to the east side of Brantome Street. The land comprises a number of adjoining lots that in combination create an irregular shaped site with frontages of 80.69 metres to Aitken Street, 80.69 metres to Robertson Street and 49.37 metres to Brantome Street. The subject land has an overall area of about 7405 square metres.

11. The subject land is vacant with buildings associated with its previous use, an engineering industry known a "Gisborne Manufacturing Company", having been demolished about a year ago. These buildings comprised several galvanized sheds, as shown on the Bosco Johnson survey plan, within which the previous manufacturing activities occurred.

12. Contextually the land is located at the northern end of the Gisborne Shopping Centre. The land has common boundaries with a small commercial property located on the north-east corner of Robertson Street and Brantome Street. This property is occupied by a veterinary surgery and an associated car park. The adjoining land to the north is to be redeveloped as a new aquatic centre with the area further north being open space extending through to the bank of Jacksons Creek. To the north of Jacksons Creek exists a band of open space with a service station and residential area beyond. The residential area includes suburban type residential properties in Beech Court and Firth Road that I understand have been subject to the effects of the creek flooding in the past. An example of how Beech Court was subject to flooding is found in a photograph [figure 7] at the end of Dr McCowan's report.

13. Various commercial and industrial uses exist to the south and west of the subject land, on the opposite sides of Robertson and Brantome Streets including a hotel and associated drive in bottle shop and service industrial type uses.

14. Aitken Street is a main road providing access from the Calder Freeway, down along the east side of Gisborne's town centre and then further north to the newer residential areas via a bridge that crosses Jacksons Creek. Aitken Street provides for a main carriageway that allows for one-way movements in each direction near the subject land. Aitken Street also has a service lane adjacent to the commercial strip to the south of the land and adjacent to the subject land's east boundary.

15. The proposed redevelopment of the subject land involves the construction of a supermarket of approximately 2650 square metres, a number of specialty shops with a combined area of 461 square metres, associated car parking, loading bay and landscaping.

16. The proposed development takes a quasi "L" shape form and is to be constructed along most of the subject land's northern boundary, along the entire western boundary around the veterinary clinic and along a relatively small part of the southern boundary along Brantome Street. The supermarket and the specialty shops will have their focus out towards the on site car parking to be provided on the subject land. The loading bay for the supermarket is to be located at the north-west corner of the development and accessed from Brantome Street.

17. According to the plans, the proposed buildings were to have their floor level set at 413.5AHD, however, as foreshadowed by Mr Pitt at the commencement of the hearing, I understand that the applicant is prepared to raise this to 413.8AHD in line with DSE's revised 1 in 100 year flood level.

18. In relation to car parking, it is proposed to provide 99 car parking spaces on the subject land. It is also proposed to carry out various works adjacent to the Aitken Street service lane and Roberston Street. The amended application plans show the provision of 19 spaces at 90 degrees to the Aitken Street service land with a further 19 spaces at 60 degrees along the Robertson Street frontage. However, following on from the discussions between the permit applicant and VicRoads that led to the withdrawal of the conditions appeal, the arrangements in these two areas have been modified so that 19 spaces at 60 degrees are to be provided along Aitken Street with 11 parallel kerbside spaces to Robertson Street. This arrangement is shown on the revised plan [DRG No. CS06 dated 22 July 2003] tabled by Mr Pitt at the commencement of the hearing.

19. Under the Macedon Ranges Planning Scheme, the subject land is located within the Business 1 zone, the provisions for which are found at clause 34.01. The land is also affected by the Land Subject to Inundation Overlay [LSIO], the provisions for which are found at clause 44.04.

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To encourage the intensive development of business centres for retailing and other complimentary commercial, entertainment and community uses.

21. Under the zone control, the use of the land for the purpose of "shop" is as of right. However, under clause 34.01-4, a permit is required for the construction of a building and the carrying out of works. It is relevant that an application under this clause is exempt from the notice requirements of Section 52 (1) (a), (b) and (d) of the Planning and Environment Act 1987 as well as the decision requirements of Section 64 (1), (2) and (3) and the review rights of Section 82 (1). The implications of this are that the applicants for review do not have a right of review pursuant to this control.

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To identify land in a flood storage or flood fringe area affected by the 1 in 100 year flood or any other area determined by the floodplain management authority.

To ensure that development maintains the free passage and temporary storage of floodwaters, minimises flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity.

To reflect any declaration under Division 4 of Part 10 of the Water Act, 1989 where a declaration has been made.

To protect water quality in accordance with the provisions of relevant State Environment

Protection Policies, particularly in accordance with Clauses 33 and 35 of the State Environment Protection Policy (Waters of Victoria).

23. Under clause 44.04-1, a permit is required to construct a building or to carry out works on land affected by the LSIO. Unlike the Business 1 zone controls, the LSIO provisions do not provide exemption from the requirement for notice, the consideration of objections and the ability for objectors to lodge an application for review against the Council's decision under Section 82 of the Planning and Environment Act 1987.

24. An application requiring a permit under the LSIO must be referred to the relevant floodplain management authority under section 55 of the Planning and Environment Act 1987. In this case the Minister for Water is the relevant floodplain manager, however, the floodplain management function is performed on the Minister's behalf by the Department of Sustainability and Environment's [DSE] Floodplain Management Unit. The relevant decision guidelines for application under the LSIO, as set out at clause 44.04-5, are as follows:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the

responsible authority must consider, as appropriate:

The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

Any comments from the relevant floodplain management authority.

Whether the proposed use or development could be located on flood-free land or land with a lesser flood hazard outside this overlay.

The susceptibility of the development to flooding and flood damage.

The potential flood risk to life, health and safety associated with the development.

The frequency, duration, extent, depth and velocity of flooding of the site and accessway.

The danger to the occupants of the development, other floodplain residents and emergency personnel if the site or accessway is flooded.

The effect of the development on redirecting or obstructing floodwater, stormwater or

drainage water and the effect of the development on reducing flood storage and increasing flood levels and flow velocities.

The effect of the development on environmental values such as natural habitat, stream stability, erosion, water quality and sites of scientific significance.

25. The provisions relating to car parking are found at clause 52.06. The purpose of the clause is:

To ensure that car parking facilities are provided in accordance with:

* The State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and local planning policies.

To provide the opportunity to use parking precinct plans in appropriate locations.

To promote the efficient use of car spaces through the consolidation of car parking facilities.

To ensure the provision of an appropriate number of car spaces having regard to the

activities on the land and the nature of the locality.

To ensure that the design and location of car parking areas:

* Does not adversely affect the amenity of the locality, in particular the amenity of pedestrians and other road users.

* Creates a safe environment for users, particularly at night.

* Protects the role and function of nearby roads.

* Facilitates the use of public transport and the movement and delivery of goods.

26. Clause 52.06 states that a new use must not commence until the required car spaces, as set out in the table at clause 52.06-5, have been provided on the land. Pursuant to the table, "shop" requires the provision of 8 car spaces to each 100 square metres of leasable floor area. I agree with Ms Dunstan that if this rate is applied, 249 car parking spaces are required to be provided. However, under clause 52.06-1, a permit may be granted to reduce or waive the car parking requirement. Before reducing or waiving car parking, the planning scheme requires that the applicant must satisfy the Responsible Authority that the reduced provision is justified having regard to:

* The availability of car parking in the locality.

* The availability of public transport in the locality.

* Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.

* Any car parking deficiency or surplus associated with the existing use of the land.

* Any credit which should be allowed for a car parking demand deemed to have been provided in association with a use which existed before the change of parking requirement.

* An empirical assessment of car parking demand.

27. Clause 65 sets out the general decision guidelines to be considered as appropriate. Amongst other things, these decision guidelines require consideration to be given to the matters set out in Section 60 of the Planning and Environment Act 1987, the planning scheme's policy frameworks, the purpose of the zone, overlay or other provision that applies, orderly planning, the impact on amenity and the degree of flood hazard associated with the proposal.

28. In considering the merits of the proposal as a whole, there is a raft of policies, objectives and strategies within both the State Planning Policy Framework [SPPF] and Local Planning Policy Framework [LPPF] which are in some way applicable to the consideration of this proposal. I propose to set out some of the detail of the SPPF and LPPF that is most pertinent to the consideration of those matters that fall within the confines of the discretion that is able to be the subject of a review before the Tribunal.

29. Clause 11.01 sets out the purpose of state policy, in part, as follows:

The purpose of State policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. It is the State Government's expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

30. Clause 11.03-3 "Management of Resources" states:

Planning is to assist in the conservation and wise use of natural resources including energy, water, land, flora, fauna and minerals to support both environmental quality and sustainable development over the long term through judicious decisions on the location, pattern and timing of development.

Integrated catchment planning for land use and resource management provides the basis for planning to protect waterways and water quality, and to minimise flood hazards, drainage infrastructure costs and downstream impacts, including on estuarine, coastal and marine environments.

Nine regional Catchment Management Authorities have been established across the State to lead planning for catchment management and be responsible for floodplain and river

management outside metropolitan Melbourne, with the Port Phillip and Westernport

Catchment Management Authority having responsibility for catchments including the

metropolitan area. These authorities are responsible for overseeing sustainable land and

water management and natural resource development within the framework of regional catchment strategies approved by the Minister for Environment.

31. State policy for floodplain management is at Clause 15.02. The objective is:

* Life, property and community infrastructure from flood hazard.

* The natural flood carrying capacity of rivers, streams and floodways.

* The flood storage function of floodplains and waterways.

* Floodplain areas of environmental significance.

32. The general implementation required under State policy at clause 15.02-2 states:

Flood risk must be considered in the preparation of planning schemes and land use

planning decisions to avoid intensifying the impacts of flooding through inappropriately located uses and developments.

Land affected by flooding, including floodway areas, as verified by the relevant floodplain management authority, should be shown on planning scheme maps. Land affected by flooding is land inundated by the 1 in 100 year flood event or as determined by the floodplain management authority.

33. Clause 18.02 sets out policy for car parking and public transport. In relation to the provision of car parking, clause 18.02-2 states, in part:

In allocating or requiring land to be set aside for car parking, planning and responsible

* Have regard to the existing and potential modes of access including public transport, the demand for off-street car parking, road capacity and the potential for demand management of car parking.

* Encourage the efficient provision of car parking through the consolidation of car parking facilities.

34. Under clause 21.02 of the Municipal Strategic Statement, Gisborne is identified as one of the shire's major urban centres whilst at clause 21.07 the strategies encourage the concentration of urban development in these major centres. The local policy at clause 22.02-2 for Gisborne states, amongst other things:

The town centre is to retain its existing compact form. Proposals for new commercial and business developments that retain this compact form and avoid expansion along major entry roads will be supported.

35. The permit applications were lodged with the Council on the 29 October 2002. Application no. P202 -0840 sought permission for buildings and works in accordance with the accompanying plans on the subject land. Application no. P202-0841 sought permission to reduce the number of car parking spaces required for the use of the land for "shop".

36. It is somewhat unclear to me as to why the permissions being sought were separated into two applications. It is quite common to find a single application that seeks the various permissions under the planning scheme when it involves one development proposal. There seems to be no practical purpose for this unusual approach being taken in this case. Despite assertions that the applicants for review motives are commercially based, the permit applicant's case was not argued on this ground. Rather it seemed to me that it was common ground that the applicants for review have the right to object to matters covered under both permit applications and to lodge applications for review against both decisions made by the Council.

37. The course of lodging two applications that has been pursued by the permit applicant's planning consultants represents a somewhat piecemeal approach towards seeking a development approval and in this case, has added to the layers of bureaucracy, increased the number of procedures and added unnecessary complication to this matter. It is a practice that I discourage and would not think is in the interests of any party, particularly the permit applicant. To their credit, I think that the advocates appearing at the hearing applied common sense in the way that they generally stuck to the relevant issues and avoided making the matter more complicated.

38. I understand that the material accompanying the applications included reports relating to planning, economic, traffic and parking considerations. The Council required notice to be given and in response it received nine objections, one of which contained 717 signatures. The grounds of objection were summarized as follows in Mr Lancashire's submission:

* The proposal would threaten our (Gisborne) economic and social structure, Gisborne jobs disappearing. Gisborne shops shutting down, cash support for Gisborne community projects drying up, parking chaos, higher flood threats, environmental balance upset. (Petition)

* The proposal would have a detrimental effect on the adjoining properties due to the land (private residential dwelling to the north of Jacksons Creek) being included in a Land Subject to Inundation Overlay.

* Traffic and Parking. The car parking analysis is inadequate and unconvincing. Reliance on on-street carparking spaces should not be considered for this proposal.

* Insufficient consideration of flooding and drainage issues.

* The economic impacts of the development will have a detrimental impact on the business sector and township of Gisborne.

* The development is inappropriately located, on the edge of a commercial precinct.

39. The Council referred the proposal to DSE under section 55 of the Act. DSE, acting on behalf of the floodplain manager, advised that it had no objection to the proposal subject to the floor level of the buildings being at least 300 mm above the 100 ARI, that is at 413.48 AHD.

40. Subject to the changes that have been outlined earlier in these reasons, I understand that VicRoads does not object to the proposal nor were there objections from DNRE and the Council's Infrastructure Unit.

41. On the 26 February 2003, the Council made its decisions to grant permits subject to conditions with respect to both permit applications.

42. The applications for review under Section 82 of the Act were filed on the 21 March 2003. The applicants for review include two nearby supermarkets, the operator of the adjoining veterinary surgery, local uniting church, a resident in Beech Court and other property owners.

43. The grounds of the application for review against the Council's decision to grant a permit for the reduction in car parking [no. P685/2003] are as follows:

1. The proposed development provides inadequate parking facilities.

2. The impact of the proposed development on the local pedestrian and vehicular traffic movement.

3. In all the circumstances the proposed development is contrary to the principles of good and orderly planning.

44. The grounds of the application for review against the Council's decision to grant a permit for buildings and works [no P686/2003] are as follows:

1. The proposal poses an unacceptable risk to life and property by virtue of its proximity to land subject to flooding.

2. The proposal will have unacceptable impacts on the economic welfare of the Gisborne region, including the loss of full time jobs and the closure of small businesses.

3. The proposal will have unacceptable visual impact on the character of the neighbourhood and surrounding area.

4. There is inadequate on site parking facilities associated with the proposal.

5. In all the circumstances, the proposal is contrary to the principles of good and orderly planning.

45. In relation to the grounds relating to application no. P686/2003, in her remarks appended to directions given on the 16 May 2003, Member Rickards noted that the applicants for review only have right to seek a review with respect to the buildings and works under the provisions of the LSIO and not the zone control. Member Rickards, who is a legal member, went on to say that the applicants for review have raised a number of grounds that appear to be relevant matters under the zone control and not the LSIO. I think grounds 2 and 3 would fall into this category. Ground 4, which relates to car parking, is really a matter that falls within the ambit of the permission being sought under application no. P685/2003.

46. Member Rickards remarks are a good starting point in terms of setting out my views with respect to the consideration of the merits of the proposal. Whilst there are a number of permissions required under the planning scheme, not all of them are able to be the subject of an application for review by the objectors given the exemptions set out at clause 34.01-4.

47. As the grounds of review suggest, the applicants for review have raised matters relating to the economic effects of the proposal on other businesses and the visual impact on the character of the area. Given that the use is as of right, there is no scope for the proposed use of the land to be challenged. In relation to the impacts of the buildings and works on the character of the area, these are matters to be considered by the Council under clause 34.01-4 of the zone control. The Council has found the appearance of the development to be satisfactory. Given the exemption provisions in that clause, there is no scope for an objector to bring an application to the Tribunal on this issue. As Mr Pitt correctly submitted, this accords with the authority set out in Sweetvale Pty Ltd and Anor v Minister for Planning and ors [2001] VSC 426.

48. Based on the submissions and evidence presented by the parties, it was common ground that there are two fundamental issues that require my consideration. The first is whether the proposed buildings and works are acceptable having regard to the LSIO. The second is whether it is appropriate to grant permission to reduce the amount of car parking to be provided.

49. I will first turn to the flooding issues raised under the LSIO provisions.

50. The 1 in 100 year flood level designated by DSE was derived from the 1999 Sinclair Knight Merz [SKM] report for Southern Rural Water regarding the determination of design flood levels for Rosslynne Reservoir. Dr McCowan's evidence was that the SKM model was calibrated against flood levels measured during the 1985 flood event that had a 1 in 20 year probability. Dr McCowan's concern was that the model was calibrated to a peak outflow that was about 40 per cent higher than the flow that would have occurred during the 1985 flood. The implication of this is that the modeling would under estimate the designated 1 in 100 year flood level of 413.18 AHD adopted by DSE. In support of this claim, Dr McCowan referred to known flood levels at various events including those of the 1971 and 1993 floods. In particular, from the 1993 flood which inundated parts of Beech Court, Dr McCowan estimated the 1 in 100 year flood level to be 413.8 AHD.

51. In relation to flows on and around the subject land, Dr McCowan went on to say that given that the Aitken Street bridge does not have the capacity to allow sufficient downstream flows during major floods in Jacksons Creek, floodwaters would travel down Brantome Street and across the land from the western boundary. Dr McCowan said that he would expect the subject land to act as a secondary flow path for floodwaters in the 1 in 100 year flood passing water downstream across Aitken Street. Dr McCowan carried out some modeling that indicated that the flows through the subject land could be in the order of 10-20 m3/sec, however with the proposed development in place, it would act as a complete barrier to those flows thus directing them down Brantome Street to Robertson Street and beyond.

52. It was Mr Cawood's view that the subject land's inclusion within the LSIO should be regarded as an interim measure. Mr Cawood indicated that it would be reasonable to form this view given that there is no accurate flood mapping data available for this area, the flaws in the [SKM modeling and the results of Dr McCowan's modeling which show that the 100 year ARI level has been under estimated. Mr Cawood suggested that in light of more recent evaluation, the land should be designated as "floodway".

53. Although the 1 in 100 year flood level was initially set at 413.18AHD, Mr Watson agreed that on further examination, the SKM modeling was flawed and that the errors in calibration would cause the model to underestimate the 1 in 100 year flood by about 300mm. Mr Watson said that DSE now considers that the 1 in 100 year flood level should be set at 413.5 AHD. Mr Watson went on to say that:

"Despite the increase in the estimate of the 1% flood level, DSE is of the opinion that flooding at this site would be shallow and storage in nature. Because of the steep nature of the creek, storage is not an issue. Accordingly, the construction of the proposed supermarket and the associated buildings will not have a significant impact on the flood plain or cause water to impact on other property."

54. Mr Watson went on to say that despite the information provided by the consultants for the applicants for review, there were no plans to change the LSIO given that the land is considered to have a low flood risk.

55. Mr Craigie agreed with DSE that the subject land is not located within the active floodplain, rather that it is within the flood fringe and as such is appropriately located within the LSIO. In relation to the 1 in 100 year flood level, Mr Craigie accepted DSE's revised 1 in 100 year flood level and recommended that the floor level of the building be set at 413.8AHD to accord with the normal requirement that the floor level be set 300mm above the flood level with the loading bay areas being made fully flood proof.

56. Whilst Mr Craigie agreed that the SKM modeling is flawed, he did not agree with a number of the assumptions adopted by Dr McCowan in relation to the impact that the proposed development would have on flood flows in the area. In particular, Mr Craigie expressed the view that in assessing the impact that the proposed development will have on flood flows, it is relevant and appropriate to take into account factors such as the impact of the proposed redevelopment of the swimming pool complex on the land to the north and the buildings which existed on the subject land itself as well as the commercial zoning of the subject land. Mr Craigie said that the nature of development on the subject land and adjoining land will have an impact on flood flows and the issue of whether flood risk is acceptable must take into account factors such as the zoning of the land.

57. Mr Craigie also undertook a detailed assessment of the impact of water flows around the subject land, including down Brantome Street, against Melbourne Water's floodplain and floodway management guidelines. In particular, Mr Craigie's modeling showed that if the creek flood level of 413.8AHD is reached with the proposed development and aquatic centre in place, then the flow of water down Brantome Street would meet the Melbourne Water's safety criteria.

58. In considering the merits of the proposal against the relevant criteria and matters raised in both the submissions and evidence, it seems clear that the SKM modeling which led to DSE setting the initial 1 in 100 year flood level at 413.18 AHD was flawed. On reconsideration of this issue, DSE has revised the 1 in 100 year flood level to 413.5 AHD. In doing so, DSE has had the benefit of the material and evidence presented by the three experts in this case. Despite Dr McCowan's view that the 1 in 100 year flood level would be about 413.8 AHD, DSE has not adopted this figure.

59. Whilst I appreciate Dr McCowan's view that the flood level of 413.8 AHD is more appropriate, given the limitations associated with the material available to him, particularly information on levels, I am not satisfied that his evidence forms a sufficient basis for me to reject the DSE's 1 in 100 year flood level.

60. Essentially my view on this issue is that it is up to the floodplain manager to set the relevant level for the 1 in 100 year event and this is the figure that should be used in the assessment of proposals of this type. It was clear from the evidence that development is not the only factor that influences the water level in any particular flood event. Other works or actions undertaken by public authorities can also play a part. For example, in his supplementary report, Mr Craigie identifies some of the actions that can be undertaken to mitigate the impacts of flooding in this area including:

* Opening up the bridge [Aitken Street Bridge] waterway area to its potential extent;

* Modifying ground levels in the approach zones to the bridge - the hydraulic approach conditions are very poor at present;

* Removing large willow root blockages from areas close to the bridge opening;

* Removing willows along the waterway throughout the township;

* Checking underground pipe drainage systems for potential susceptibility to backflow during high creek flood levels and remedying problems where discovered.

61. Although Dr McCowan expressed some reservations about whether these works would be undertaken, he acknowledged that they are achievable and that they would have an impact on the flood level.

62. Accordingly it seems to me that in setting the flood level, the floodplain manager is in a far better position, if not the best, to take into account all of the relevant factors, including the impact of works which can be undertaken etc. By his own admission, Dr McCowan's described his assessment as a "calculated estimate" and not a result. This is not surprising given the incomplete nature of the information available to him and the inability to predict the actions that the floodplain manager may undertake to protect the integrity of the flood level that it sets for the 1 in 100 year flood event. These actions could improve flood flows and storage capacity.

63. I therefore place great weight on the flood level set by DSE and its views as to the appropriate flood level cannot be dismissed lightly and not on the basis of a "calculated estimate". In the circumstances, I accept that it is appropriate to use the level set by the floodplain manager as the standard upon which new redevelopment on the subject land should be based.

64. In relation to Mr Cawood's view that the land should be designated as floodway, I take into account his reliance on Dr McCowan's assessment. Furthermore I do not accept that the subject land has been included within the LSIO as an interim measure. Whilst I accept that the VPP planning scheme practice notes indicate that the LSIO can be used as "an interim measure until further mapping of the floodway is carried out", the practice note does not say that this is its only purpose. Indeed, if one examines the LSIO provisions set out at clause 44.04, there is no mention in its purpose that it could be applied as an interim measure. Despite the material presented on behalf of the applicants for review, there was nothing from DSE to suggest that the LSIO has been imposed as an interim measure or that this level of planning control is inappropriate. In any event I accept Mr Pitt' submission that I must consider the merits of the proposal based on the planning scheme as it stands.

65. Furthermore, I think it relevant to note Mr Craigie's evidence, in response to a question from Mr Gobbo, that floodplain management involves, amongst other things, managing risk. The decision guidelines at clause 44.04-5 state that the risk involved must be considered. There is nothing in the LSIO that leads me to the conclusion that the control is intended to eliminate the possibility of any risk whatsoever. Indeed, the Tribunal's decision in Manning v Macedon Shire Ranges and Anor [2002] VCAT 454 (26 June 2002) clearly demonstrates that there are going to be circumstances when land covered by the LSIO is capable of being redeveloped for commercial purposes. I also agree with Mr Pitt that the circumstances and dangers associated with residential development on floodprone land can be clearly distinguished from those involving commercial development.

66. Of course it would be desirable for risk associated with potential flood events to be eliminated. However, as is the case with most things in life, it is difficult, indeed virtually impossible, to have a no risk situation. As a society we accept some degree of risk in all facets of life on a daily basis. We accept the risks associated with driving a car, the side effects of medicine, injury from playing sport just to name a few. The LSIO and policy require an assessment of risk to be undertaken and, depending on the outcome of this assessment, a judgement is made as to whether the hazard or risk associated with a proposed development is acceptable.

67. I have considered the views expressed on risk assessment and after doing so, prefer the evidence of Mr Craigie. In forming his view, Mr Craigie took into account a number of factors that are relevant in the assessment of the risk and impact of the proposal. These included the impact of the aquatic centre, the buildings that previously existed on the land, the zoning of the land and the works that the floodplain manager is able to undertake to mitigate flood impacts. In contrast neither Dr McCowan or Mr Cawood informed themselves properly as to the zoning of the land, the impact of previously existing and proposed development nor did it seem that they made reasonable allowance for the possibility of the floodplain manager undertaking works.

68. In making an assessment of whether the risk is acceptable, the appropriate approach is for relevant considerations to be balanced. There was some debate about whether it is reasonable to take into account the buildings that have existed on the land and the redevelopment of the swimming pool site. I see no reason why they should not. The subject land has supported buildings and commercial use for around 50 years. This is not a case involving the redevelopment of long time vacant land. I understand that these buildings were removed as part of the sale agreement and it would seem somewhat opportunistic, indeed unfair, for the land's recent vacant state to be seized upon as the basis for assessing the impact of flooding in this area when flood events and the associated impacts would have occurred when the land was developed. If it was inappropriate for it to be zoned Business 1, then it should not have been zoned in this way when the VPP scheme was introduced. Large sites like this, suitable for a supermarket development are difficult to find, particularly when the scheme's policies, such as that at clause 22.02, specifically call for Gisborne's town centre to remain compact in its form. The reality is that the subject land has been zoned for commercial use and development and the decision guidelines at clause 44.04-5 clearly contemplate for this to be factored into the equation.

69. Mr Craigie's evidence was comprehensive in terms of risk assessment taking a much broader, and appropriate, range of factors into account. In particular, Mr Craigie undertook modeling to demonstrate that Melbourne Water's safety criteria would be met for flows along Brantome Street even if the 1 in 100 year flood event reaches 413.8 AHD. I found his comparisons between the three scenarios presented, that is, before the buildings on the land were demolished, the land in its vacant state and the land redeveloped as proposed, persuasive in demonstrating that the proposal will result in the safety criteria being achieved and the impacts on the surrounding area being not being significant or unreasonable. Furthermore with the proposed development in place, I accept that the water over the subject land would be reasonably shallow and of a storage nature.

70. Furthermore, based on the evidence presented, it is clear that there is an existing flooding problem in Beech Court and this problem is not necessarily linked to the impacts of the development that previously existed on the land. Rather, during the 1993 flood, parts of Beech Court were inundated whereas the subject land was not. Whilst the redevelopment of the land may have some impact on the flood level, Dr McCowan agreed during the course of cross-examination that such impact would be less than substantial. A flooding problem exists in Beech Court irrespective of development on the subject land and it is up to the relevant authorities to do something about this.

71. Planning policy and the purpose of the LSIO do not prohibit redevelopment of land that is subject to inundation. Rather they require a range of factors to be considered and balanced including flood hazard and the impact on surrounding land. Taken overall, I am satisfied that subject to the floor level of the proposed buildings being raised to 413.8 AHD and flood proofing of the loading bay area, that the flood risk associated with the proposal is not significant and well within the bounds of what is reasonable having regard to both policy and the purpose of the LSIO.

72. Next I turn to the issue of car parking. Fundamentally, there are two aspects that require my consideration. The first is whether it is reasonable to grant a permit for a reduction of the amount of car parking required under clause 52.06. The second is whether the design of the car spaces proposed on the land and the adjoining streets is acceptable.

73. In relation to the first issue, it was common ground between Mr Johnson and Ms Dunstan that the planning scheme's car parking requirement for shop [8 spaces per 100 square metres of LFA] is too high and a reduction is warranted. If the planning scheme rate is applied, 249 car parking spaces are required. Ninety - nine car parking spaces are to be provided on the land.

74. The matter in dispute relates to whether the extent of the reduction required is reasonable. In considering whether permission should be granted, the decision guidelines at clause 52.06-1 state that the Tribunal must be satisfied that the reduced provision is justified due to matters including the availability of car parking in the locality and an empirical assessment of car parking demand.

75. Mr Johnson's firm undertook parking surveys with a view towards establishing car parking generation rates for existing retail uses in Gisborne. Mr Johnson explained that the outcome of these surveys demonstrated a peak parking demand of 3.6 spaces per 100 square metres of GLFA. Based on this ratio, Mr Johnson came to the view that the proposed use of the land would generate a demand of 112 spaces and that this demand can be met by the on site spaces to be provided together with the spare capacity in kerbside spaces available along the subject land's frontages.

76. Ms Dunstan challenged the validity of Mr Johnson's conclusions and expressed the view that the empirical data would support a conclusion that car parking in the existing centre is generated at a rate of 4.6 car spaces per 100 square metres of leasable floor area. In particular Ms Dunstan indicated that the rate derived by Mr Johnson was based on an overestimate of the leasable floor area in the shopping centre and had not allowed for parking in nearby Prince Street that would be, in her view, clearly associated with the shopping centre. Ms Dunstan went on to say that in her view a rate of 5 spaces per 100 square metres is justified given "external factors" including projected population growth and consumer spending trends which could result in an increase in parking activity.

77. As part of this proposal it is intended to provide 99 car parking spaces on the subject land. Furthermore, it is proposed that kerbside parking be improved to increase the supply of parking spaces along the subject land's three road frontages to 53 spaces. These figures take into account the double counting of two spaces in the on site car as one [space 89] and the revised on street layouts on the north side of Robertson Street and the Aitken Street service road. The combination of these two figures means that 152 car parking spaces will exist either on the subject land or along the kerbside along the subject land's frontages.

78. Based on the survey information presented in the Mr Johnson's report, 13 kerbside spaces adjacent to the land are occupied at peak times. Ms Dunstan accepted this occupancy rate and agreed that there would be 40 kerbside spaces available if provided as proposed. If the surveyed kerbside occupancy rates are applied, this leaves a supply of 139 spaces on the subject land and along its three frontages.

79. If one adopts Mr Johnson's figures, which demonstrate a demand of 112 spaces, there is a clear case for allowing the reduction being sought. The demand can easily be accommodated by the supply.

80. If one adopts Ms Dunstan's figure of 4.6 spaces per 100 square metres, then there is a shortfall of 4 spaces.

81. In reviewing the analysis of car parking rates, I think there is some justification for accepting Ms Dunstan's view that the Mr Johnson's assessment is based on an underestimate of the car parking demand generated by the existing centre. It seemed to me that Ms Dunstan was in a position to have more accurate information in relation to floor areas than Mr Johnson.

82. However, it is my view that Ms Dunstan's rate, that is at 4.6 spaces per 100 square metres of LFA is conservative, taking into account as many factors as possible to derive this figure. I was not persuaded that in the circumstances of this case, it is appropriate to rely on population projections and somewhat speculative consumer spending trends to further "bump up" the car parking rate to 5 spaces per 100 square metres.

83. It must be borne in mind that if Ms Dunstan's methodology is applied to the GTA survey results [4.3 spaces per 100 square metres of LFA plus 0.1 space allowing for the `Prince Street factor'] then the peak parking demand equates to 137 spaces which is just under the available supply. Even if the greater figure is applied, the parking deficiency, 4 spaces, is negligible in the overall scheme of things with a project of this type.

84. A further factor to consider is that the Tribunal has accepted a far lower car parking rate of 3.2 spaces per 100 square metres for the retail proposal, which included a supermarket, in Manning's case. It is relevant that Manning's case involved a retail proposal in a town within the same municipality and in a location where I would expect residents to have a high dependency of cars for transport. Furthermore, the Tribunal also accepted the use of kerbside parking along a street abutting the land in that case as part of the overall parking supply. I see no reason why the kerbside spaces adjacent to the subject land should be considered inappropriate for use by supermarket customers.

85. In addition I note Mr Lancashire's submission that the Council owns land in the area and the potential exists for the parking supply to be increased if necessary. That is an issue that the Council can monitor and take action on if necessary.

86. In the circumstances, I find that the overall parking supply available for the proposed use of the land to be acceptable and a reduction is justified having regard to empirical data available.

87. In relation to concerns about the design and layout of kerbside parking, I note Ms Dunstan's concern that it may not be possible to provide the number of spaces shown on the plans tendered by Mr Pitt at the commencement of the hearing. However, it is essentially up to VicRoads and the Council to whether these arrangements satisfactory as they are to be made on public land. Despite the matters raised by Ms Dunstan, I was not persuaded that VicRoads and the Council would not, in general terms, accept the layout shown on the plan tabled by Mr Pitt.

88. In relation to concerns raised by Ms Dunstan about the car parking layout on the subject land, clause 52.06-2 contemplates that car parking can be provided in a manner that accords with the standards set out at clause 52.06-5 or the Australian Standard 2890.1. The areas of non-compliance that Ms Dunstan identified are very minor and do not make the layout unacceptable. I accept that it is good practice to provide protection for spaces at the end of aisles [spaces 55 and 59]. This can be achieved by permit condition. Whilst the provision of these protection islands will in all probability result in the loss of one car space, this is not significant enough to change the conclusion that I have reached about the adequacy of the overall parking supply.

89. I find that the car parking provision is acceptable and the reduction sought is justified.

90. It follows from the above that I have come to the view that permits should issue in relation to both applications. Given that the proposal is to proceed on the basis of the floor level of the building being raised to 413.8 AHD, Mr Craigie's recommendation with respect to the floodproofing the loading bay, the changes to the car parking layout to accord with VicRoads requirements and the provision of islands to protect end of aisle car spaces, it is necessary to amend permit conditions. Accordingly the Responsible Authority's decision in relation to permit application no. P202-840 will be varied. The decision with respect to permit application no. P202-841 is affirmed.