1 The application for review is disallowed. The decision of the Responsible Authority dated 28 January 2004 is affirmed.

1 This is an application for review of the decision of the Responsible Authority dated 28 January 2004 to refuse an application for a six lot subdivision of land at CA Section 15, Parish of Benalla, Faithful Street, Benalla.

1. The application is inconsistent with Clause 21.07 Housing Strategy and Clause 22.09 Residential Development Policy of the Benalla Planning Scheme.

2. The application is inconsistent with Clause 37.03 Urban Floodway Zone and Clause 44.03 Floodway Overlay.

3 The subject site which is vacant is located within an established residential area of west Benalla. The site has a total area of approximately 2 hectares with a frontage of 100.6 m to Faithful Street to the west, a 10 m frontage to William Street to the east with an overall depth of 166m along the northern side and 201m along the southern side.

4 A large drain runs through the site 30-64 m from the western boundary and is subject to an easement in favour of the Responsible Authority. This drain directs surface drainage to the north towards the Broken River and is fed from drains lying to the south of the site. The major open drain is located behind this allotment and drains to the Broken River.

5 Existing infrastructure such as reticulated water, sewerage, gas, electricity and telephone are all provided in the area. The site is also close to schools, shops and sporting facilities.

6 Immediately to the south of the site is vacant land with some remnant vegetation, as is the land abutting the north west corner of the site. Surrounding land contains residential allotments, some with recent construction as along William Street on compacted fill areas.

7 It is proposed to subdivide the site into 6 lots. Proposed lots 1-5 are to front Faithful Street and range in size from 820 sqm to 1087 sqm, bound to the east by the major drain. Proposed lot 6 is to be 1.24 ha with a 5.6m frontage to William Street. This lot is to contain the existing drain. Access to the lots will be either via Faithful Street or William Street.

8 The majority of the site is located within the Residential 1 zone (Clause 32.01) with the main drain and a portion of land either side located in the Urban Floodway zone (Clause 37.03) under the Benalla Planning Scheme. Land within the Residential 1 zone is also subject to the Land Subject to Inundation Overlay (Clause 44.04). Pursuant to Clause 32.01-2 a permit is required to subdivide land within the Residential 1 zone and the provisions of Clause 56 must be met. Pursuant to Clause 44.04-2 a permit is required to subdivide the land and under Clause 44.04-4 an application must be referred to the relevant floodplain management authority under Section 55 of the Act unless in the opinion of the responsible authority, the proposal satisfies requirements or conditions previously agreed in writing between the responsible authority and the floodplain management authority.

9 Pursuant to Clause 37.03-3 A permit is required to subdivide land. A permit may only be granted to subdivide land if the following apply:

* The subdivision does not create any new lots, which are entirely within this zone. This does not apply if the subdivision creates a lot, which by agreement between the owner and the relevant floodplain management authority, is to be transferred to an authority for a public purpose.

* The subdivision is the resubdivision of existing lots and the number of lots is not increased, unless a local floodplain development plan incorporated into this scheme specifically provides otherwise.

10 The proposal was referred as required to the floodplain management authority, Goulburn Broken Catchment Management Authority. It is the Authority's view that the site is located in floodway land with the site known to have been flooded to depths of 500mm and greater. The site is on a flow path which allows flood waters from upstream areas of Benalla to flow to the Broken River. It was considered that in allowing a 6 lot subdivision which would permit as of right dwellings on each lot such intensification would have a cumulative affect and cause significant impacts.

11 Pursuant to Clause 15.02-2 of the planning scheme 'flood risk must be considered in ... land use planning decisions to avoid intensifying the impacts of flooding through inappropriately located uses and developments'. At Clause 22.04 it is recognised that 'the municipality has experienced two major floods from the Broken River in recent years'. Mr Tierney referred to the most recent flood in 1993 and indicated that recently upgraded flooding information for Benalla indicates the whole of the property is floodway, that is, areas which flood greater than 500mm during a 100-year ARI (Average Recurrence Interval) type flood. The 2002 declared flood levels for the subject land indicate a level of 169.05m.

12 It is policy that 'land use decision making fully recognize flood hazard and possible impediment to flood flows'. But for the land being located within the Land Subject to Inundation overlay and being in part in an Urban Floodway zone it is ideally located for residential subdivision. However it is considered that as the land is known to be subject to high levels of flooding that the proposal to subdivide the land into 6 lots result in an intensification which could impede flood flows and result in a potential flood risk to life, health and safety associated with any future development on the subdivided lots.

13 It is considered that the proposal for 6 lots could result in an intensity of development that will have, given the location of the land, adverse impacts to adjoining areas in terms of the redistribution of flood levels. It was acknowledged by both the Responsible Authority and the Catchment Authority and this view is not unreasonable that some development could potentially occur on the land, but not at the intensity that would result from a 6 lot subdivision. Although it was submitted floor levels of any development could be built at a height to overcome the risk of flooding, even if this occurred, it is more the amount of possible development as a result of 6 lots, rather than the steps taken, that is likely to have an adverse impact on the flood levels in the surrounding area.

14 For the above reasons the application for review is disallowed. The decision of the Responsible Authority dated 28 January 2004 is affirmed. No permit is to issue.