The decision of the responsible authority in permit application P144/2006 is set aside.

A permit is granted in relation to land at 189 Flamingo Drive, Golden Beach. The permit will allow the use and development of the land for the purpose of a dwelling, generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development starts, 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 be generally in accordance with the plans tabled at the hearing of the Victorian Civil and Administrative Tribunal but amended to show the colour, materials, and finishes of buildings. These must be of muted tones to blend with the natural environment and preserve the aesthetic amenity of the area and complement the coastal environment and any identified local settlement character.

2 The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

3 This permit will expire if the development is not completed within four years of the date of this permit. The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires or within three months of the date of expiry.

4 All stormwater runoff from the roofed and any paved areas must be discharged to a tank, dam or vegetated area to reduce accelerated erosion potential, to the satisfaction of the Responsible Authority.

5 All external piping and ducting above the ground floor of the building shall be concealed to the satisfaction of the Responsible Authority.

6 The landowner must provide a permanent water supply for the property comprising at least 12,000 litres for domestic and the same for fire fighting purposes, to be located within the property.

7 The landowner must provide a permanent form of electric power to service the subject property to the satisfaction of the Responsible Authority.

8 The applicant is required to construct a vehicular crossing to service the property shown on the application to the satisfaction of the Responsible Authority.

9 All domestic waste water must be treated in a system designed and constructed in accordance with the septic tank code of practice to the satisfaction of the environmental health unit. Sewage and treated effluent must be retained within the boundary of the allotment and must not cause any nuisance, danger to health, or pollution to any waterway or to any other land.

10 The removal of Native Vegetation is to be confined to just the area required for the positioning of the dwelling, access and the wastewater effluent disposal system. Vegetation outside this area should not be removed, damaged or destroyed.

11 Appropriate weed control measures must be taken to prevent any weeds becoming introduced into nearby vegetation.

The responsible authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

1 This is an application to review the decision of the responsible authority to refuse permission for the construction of a dwelling at 189 Flamingo Drive, Golden Beach. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. Contrary to Council's Settlement Strategies for Coastal Areas, listed in Clause 21.04 of the Local Planning Policy Framework.

2. Fails to protect sensitive native coastal vegetation as required by Schedule I of Clause 42.1 Environmental Significance Overlay.

3. Contrary to the environmental objectives of Schedule 1 of Clause 42.1 Environmental Significance Overlay.

4. Contrary to the objectives of the coastal areas of Clause 15.08 of the State Planning Policy Framework.

5. Inconsistent with the principles for coastal planning and management as set out in the Victorian Coastal Strategies.

6. Contrary to the objectives of the Wellington Coastal Subdivision Strategy

2 It is proposed to construct a dwelling located within a subdivision which was created in the 1950's and which comprises some 11,200 titles in a 25 klm long coastal strip stretching from the Honeysuckles in the south west to Paradise Beach in the north west.

3 The dwelling is proposed to be constructed on that part of the site which has been cleared of vegetation by previous owners. The plans submitted with the application provided very little detail as to the precise siting and design of the dwelling, however plans table at the hearing by the applicant show that it is proposed to construct a modest, two bedroom dwelling and garage. A land capability assessment with respect to waste water management was also tabled.

4 No vegetation removal is proposed as part of this application.

5 As I have indicated above the review site forms part of the subdivision created in the 1950's which extends in a strip along the coast from the Honeysuckles to Paradise Beach. The history of the subdivision is long and complex and does form part of the background to understanding the Council's decision to refuse this application. Notwithstanding this, it is not necessary for me to delve in any great detail into that history other than to record that the subdivision of this environmentally sensitive coastal strip has long been recognised as an extremely poor planning decision. The term planning disaster immediately comes to mind as a description of the subdivision. The creation of the subdivision has necessitated over the last 30 years or so, actions and initiatives from successive State Governments and the Council to minimise the adverse impacts of the subdivision on the coastal environment.

6 As a consequence of these actions, there is now in place a regime of planning controls which limit development within the coastal strip. I provide a summary of those controls subsequently in these Reasons.

7 The review site has an area of 2414 m2 and exists as a consequence of the consolidation of four titles. The site has been largely cleared of vegetation (by previous owners of the land) and is accessed from Ebb Tide Way, an un-constructed road which runs off Shoreline Drive, and intersects with Flamingo Drive, which is another un-constructed road. The term "un-constructed road" perhaps elevates the status of these roads because in reality they are little more than dirt tracks. The review site is located on the south west corner of Ebb Tide Way and Flamingo Drive.

8 I was advised that there is a scattering of dwellings located throughout this area with an estimate provided to me of about ten dwellings in the strip between Glomar Beach and Golden Beach.

9 The review site is zoned Low Density Residential under the Wellington Planning Scheme. The purpose of the zone is to implement State and local policy and to provide for low-density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all wastewater.

10 A permit is not required to use land for the purpose of a dwelling provided that the conditions of Clause 32.03-2 are met. These conditions require the provision of reticulated sewerage or, if not available, all wastewater from each dwelling must be treated and retained within the lot in accordance with the State Environment Protection Policy (Waters of Victoria) under the Environment Protection Act 1970. Similarly a potable water supply and electricity supply to the satisfaction of the responsible authority must be provided. The council did not raise any objections to the proposal on the basis of non compliance with Clause 32.03-2.

11 A permit is required to construct a building or to construct or carry out works associated with a section 2 use or for an outbuilding having dimensions greater than that specified in the schedule to the zone. The schedule does not specify any such dimensions.

12 The land is affected by an Environmental Significance Overlay ESO1). The Statement of Environmental Significance is quoted in full as follows:

The Ninety Mile Beach and Gippsland Lakes and their environs are some of the most significant environmental, landscape, and recreational areas within the State of Victoria.

The coast and lakes systems comprise easily disturbed ecosystems susceptible to soil erosion, ground and surface water pollution, and habitat disturbance. In particular, areas which have been developed as coastal settlements and towns along the Ninety Mile Beach are beginning to cause significant environmental management problems, including loss of water and soil quality, as well as loss of native vegetation.

There are 11,200 subdivided lots along the Ninety Mile Beach between Paradise Beach and the Honeysuckles, east of Seaspray. These lots occur both on the sand dunes of the Ninety Mile Beach and on the adjacent sandy soils. None of the lots is connected to reticulated water or sewerage systems. Investigations have revealed evidence of groundwater contamination at Loch Sport. Development has been encouraged to occur within the township areas of Paradise Beach, Golden Beach and at the Honeysuckles.

There are significant environmental issues in this area, including water quality, landscape, protection of primary and secondary sand dunes, flooding, protection of vegetation habitat, impacts on neighbouring wetlands and coastal parks. Coastal and estuarine systems are vulnerable to human development.

13 The environmental objective to be achieved is:

•

To ensure that the development of land is compatible with the environmentally sensitive coastal area, including the Gippsland Lakes.

•

To conserve and enhance the environmental quality of the coastal area.

•

To protect and enhance the natural beauty of the coastal landscape.

•

To protect and enhance the visual amenity and landscape of the coastal area.

•

To minimise the risk of erosion, pollution, and destruction by fire.

•

To minimise the impact of human activities on the ecological values of the coastal and lakes environments.

14 A permit is required to construct a building and to construct or carry out works unless exempted by the schedule to the Overlay. The schedule exempts buildings with a height of less than 4.5 m associated with a range of activities, however a dwelling is not exempted.

15 A permit is required to remove, destroy or lop vegetation unless exempted. No vegetation removal is proposed as part of this application.

16 Decision guidelines require consideration of those matters specified in Clause 4.0 of the schedule to the Overlay.

17 A Restructure Overlay (RO7) applies to the land. The purpose of the Overlay is to identify old and inappropriate subdivisions which are to be restructured to preserve and enhance the amenity of the area and reduce the environmental impacts of dwellings and other development.

18 A permit is required to construct or extend a dwelling or other building. A permit must be in accordance with a restructure plan for the land listed in a schedule to this overlay. The Restructure Plan for this section (land bounded by Firefly Road, Shoreline Drive and Winklers Way and including land fronting Flamingo Drive, Ninety Mile Beach) identifies the lots which must be consolidated to form a restructured lot. The proposal complies with the Restructure Plan.

19 Decision guidelines under the RO7 require consideration of the following matters;

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

• The objectives of the restructure plan for the area.

• Appropriate measures to cope with any environmental hazard or constraint affecting the land, including slope, drainage, salinity and erosion.

• The protection and enhancement of the natural environment and the character of the area including the retention of vegetation and fauna habitats and the need to revegetate along waterways, gullies, ridge lines and property boundaries.

• The availability of utility services, including sewerage, water, drainage, electricity, gas and telecommunications.

• The relationship of the intended use and development to the existing or likely use and development of adjoining and nearby land.

• The effect on surrounding uses, especially agricultural uses and nearby public land.

• The design of buildings.

20 The discretion to be exercised in determining whether or not to grant a permit for this proposal is confined by the permit triggers available under the planning scheme. In summary therefore, the discretion available is limited to a consideration of the relevant matters under the ESO1 and the RO7.

21 There are a wealth of policy provisions contained in the planning scheme which focus on coastal development generally and development within the Ninety Mile Beach specifically, and which are to varying degrees relevant in determining whether or not a permit ought to be issued under the ESO1 and the RO7. The Council however has refused the application on six grounds, four of which refer to the following specific policies;

a

Clause 21.04 of the Local Planning Policy Framework.

b

Clause 15.08 of the State Planning Policy Framework.

c

The Victorian Coastal Strategy

d

The Wellington Coastal Subdivision Strategy

22 I will address the relevance of these policies subsequently in these Reasons.

23 During the course of the hearing I advised the parties that I was aware of a recent decision of the Tribunal[1] which had set aside a decision of the council to refuse an application for a dwelling at 5-7 Shoreline Drive, Glomar Beach, a locality which forms part of the Ninety Mile Beach.

24 The Council was clearly aware of the decision but inexplicably it was not referred to me. The Applicant was not aware of the decision.

25 I provided the parties with the opportunity to make further submissions on the relevance of that decision to the matters before me in the current Application for Review.

26 The Council subsequently advised that the zone, overlay and proposal considered by the Tribunal in Application for Review P1118/2006 are the same as those in the current Application.

27 The Tribunal in the earlier matter made a number of pertinent findings which are relevant to my deliberations in the current Application, and I will refer to those findings subsequently. The Tribunal in that matter did conclude that:

........ the site is zoned Low Density Residential and the size of the site is in accordance with the Restructure Overlay plan. In light of these circumstances, there is no doubt the site has development potential. The intentions of the Council to undertake further strategic work to focus development opportunities along the Ninety Mile Beach into particular locations is admirable, but there is a lack of clear direction in the Council's adopted Strategy for Glomar Beach and the existing planning policies in the Planning Scheme retain a recognition of the potential for development to continue to occur subject to the Restructure and Environment Significance Overlays.....[2]

28 The parties at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. I inspected the subject land and its locality.

29 As I have outlined above the review site is located within a subdivision created in the 1950's which extends in a 25 klm strip along the coast from the Honeysuckles to Paradise Beach and comprises some 11,200 titles. In recognition of the serious environmental consequences associated with permitting the development of each of the titles which exist within the coastal strip, planning controls have been placed over the strip which in effect require permits for buildings and works under the ESO1 to allow consideration of the impact on the development proposals on the sensitive coastal environment, and under the RO7 to require individual lots to be consolidated into larger lots prior to development being approved.

30 The land however continues to be zoned Low Density Residential and no permit is required under the zone to use or develop the land for the purpose of a dwelling, subject to compliance with specified conditions. With respect to those conditions the Applicant submitted a land capability assessment to demonstrate that wastewater from the proposed dwelling can be treated and retained within the lot in accordance with the State Environment Protection Policy (Waters of Victoria) under the Environment Protection Act 1970. The land capability assessment was not challenged by the Council. Similarly the Council did not dispute that potable water and electricity can be provided. It was also acknowledged that the access to the site is trafficable.

31 It was the Council's submission that the proposal is unacceptable because its strategic planning for the coastal strip seeks to encourage development to be located within designated activity nodes along the strip. The Council relied on the State Planning Policy at Clause 15.08 which, in addition to other matters, states that planning for coastal areas should:

• Identify a clear settlement boundary around coastal settlements to ensure that growth in coastal areas is planned and coastal values protected. Where no settlement boundary is identified, the extent of a settlement is defined by the extent of existing urban zoned land and any land identified on a plan in the planning scheme for future urban settlement.

• Direct residential and other urban development and infrastructure within defined settlement boundaries of existing settlements that are capable of accommodating growth.

• Encourage urban renewal and redevelopment opportunities within existing settlements to reduce the demand for urban sprawl.

• Avoid linear urban sprawl along the coastal edge and ribbon development within rural landscapes and preserve areas between settlements for non-urban use.

32 Reliance was also placed on Clause 21.04 of the Council's Municipal Strategic Statement which encourages the concentration of "....urban development in existing coastal settlements with established physical, social, and economic infrastructure through infill development within existing town boundaries and restricting development distant from these settlements....."

33 The Council also referred me to the Wellington Coastal Subdivision Policy and the failure of the proposal to comply with this policy is specifically referred to in one of the Council's grounds of refusal. I was advised that the policy which was adopted in September, 2005 recommends a nodal settlement pattern with nodes based on existing settlement boundaries and with areas between the nodes being returned to either public land or large rural conservation lots. It was the Council's submission that the implications of the adoption of this policy is that applications for dwellings on properties which have been consolidated will not be approved under the existing Restructure Plans. It was acknowledged by the Council however, "....that the exact size of the properties or whether a dwelling will be approved at all has not yet been determined."

34 There a number of flaws in the Council's approach to this matter. The Wellington Coastal Subdivision Policy proposes wide ranging changes to the planning scheme including the zoning and the Restructure Plans approved under the Restructure Overlay as they apply to this section of the Ninety Mile Beach, but the identification of settlement boundaries and specification of land to be rezoned, are conceptual only and have not been developed to a sufficient level of precision to be of much use in decision making on applications for individual lots. The Council in this case for example, was unable to confirm for me whether the review site was inside a settlement boundary or not.

35 The second difficulty I have with the reliance on the Wellington Coastal Subdivision Policy is that it cannot be regarded as a seriously entertained planning proposal[3]. The policy has been adopted by the Council but the Council's resolution in adopting the policy gives tacit recognition of the need to ensure that its recommendations are reflected in the planning scheme. The Council in adopting the Policy in September 2005 resolved in the following terms:

Review the Wellington Planning Scheme to ensure that zones and provisions reflect the preferred settlement structure. This will include removal of the tenement provisions and modification of restructuring arrangements.

36 I was advised that subsequent to this resolution the Council has been negotiating with State and Federal Governments about land acquisition outside settlement boundaries and the State Government has provided some funding to be used to better identify the full cost of implementing this Strategy and to assist the Council in appointing a project officer to help develop and manage the Strategy's overall implementation.

37 Member Naylor made the following findings in relation to the weight that ought to be given to the Policy in Application for Review No. P1118/2006:

Clearly the review of planning controls and policies affecting Ninety Mile Beach are in an embryonic stage ........

The Strategy is a Council adopted strategy document, but it is not referenced or incorporated into the Planning Scheme. At the time of this hearing, the Council had no definite plans to prepare a planning scheme amendment to implement any of the recommendations of the Strategy. As such, it cannot be given the same weight as the State and local planning policy statements in the Planning Scheme[4].

38 I agree with Member Naylor's findings on this matter and as a consequence the application must be assessed against the planning scheme provisions as they apply at the time that the decision is made. The land is zoned Low Density Residential and a permit is not required to use or develop land for a dwelling under the zone. The review site has been consolidated in accordance with the applicable RO7, and as a consequence I can only conclude that the proposal is acceptable having regard to these provisions of the planning scheme.

39 With respect to the ESO1, the decision guidelines seek to avoid construction in fragile or unstable areas, including land subject to inundation and land adjoining coastal or lake foreshore boundaries. I was not presented with any submissions to the effect that the review site is fragile, unstable, subject to inundation or adjoining a coastal or lake boundary. Similarly there is no vegetation proposed to be removed as part of this application and there was no dispute concerning the capability of the land to assimilate wastes without detriment to the environment. While a concern was expressed about the quality of the plans submitted with the application, and I agree that those plans were completely inadequate, the plans presented to me at the hearing are sufficient to enable me to conclude that the scale, height and materials of buildings complements the coastal environment.

40 I am satisfied therefore that the proposal is acceptable having regard to the environmental objective of the ESO1.

41 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit granted.

42 In deciding the conditions to be included on the permit I have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions of the parties in addition to the matters which arise from my reasons.

[1] Application for Review P1118/2006 Dawe v Wellington SC (30 November, 2006)

[3] Refer to the tests established in Lyndale v Black 1 PABR 207.