The Council determined to grant a permit for the proposal subject to conditions including those sought by Melbourne Water and the Department of Sustainability and Environment.

Parties asking the Tribunal to set aside the Council's decision were concerned about sediment, pesticides and fertilisers escaping the golf course during storms and flood and affecting drinking water and the Yarra River's unique biodiversity. The construction phase poses the greatest risk. Another of the arguments put forward was that the proposal was inconsistent with policy for the region. Opponents also claimed design and operational aspects were not fully addressed.

The extent of the site that would be inundated if the golf course was allowed was noted in the Tribunal's decision. The Tribunal also acknowledged the potential for major flooding and the importance of protecting the quality of the Yarra River for water supply and biodiversity. The Tribunal referred to the risk to water supply and biodiversity if construction and operations were mismanaged.

Golf course opponents did not persuade the Tribunal to reject the proposal on many grounds argued. They did persuade the Tribunal that more stringent permit conditions were required than those in the Notice of Decision. The environmental make-up of the river may improve through the implementation of these conditions, rather than the current unregulated use of the land for agricultural purposes and the lack of a riparian corridor.

The project's opponents persuaded the Tribunal that design elements in the floodplain were not resolved, particularly an evacuation route during floods.

A substantial bridge and associated mounding tabled by the Eastern Golf Club late in the hearing to address the evacuation route is uncertain in its form and impact.

The Tribunal has decided to set aside the Council's decision and not issue a permit because of outstanding building and construction issues within the floodplain.

Sections 80 & 82 of the Planning & Environment Act 1987; Yarra Ranges Planning Scheme; Golf Course; Recreation and Tourist Facility; Function Centre; Green Wedge Zone 4; Floodplain; Flooding Risks; Construction; Water Catchment; Consistency with Planning Policy.

APPLICATION P1970/2010 (Review of Notice of Decision)

Healesville Environment Watch Inc., Bill Boerkamp, Friends of the Earth Inc.

Healesville Environment Watch Inc., Bill Boerkamp, Friends of the Earth Inc.

15, 16, 17, 18, 22, 23, 24, 25 and 26 November 2010

Healesville Environment Watch Inc & Ors v Yarra Ranges SC & Ors [2010] VCAT 2047

1. Application for Review No. P1970/2010 is allowed. In permit application no. YR-2009/1287, the decision of the Responsible Authority is set aside. No permit is to issue. Consequently, Application P2233/2010 is dismissed.

For Healesville Environment Watch Inc., and Bill Boerkamp

Mr S Morris QC of counsel instructed by Hall and Wilcox lawyers. Evidence was called from:

• Mr R Sutherland, engineer.
• Mr C Bloink, aquatic ecologist.
• Dr R McCartney, sports turf consultant.
• Mr R Ashby, agricultural consultant.
• Mr N Withers, engineer.
• Mr J Glossop, town planner.

Mr A Walker of counsel instructed by the Environment Defenders Office. Ms F Millner of the EDO appeared in Day 8. Evidence was called from Dr D Deere, scientist.

Mr I McP Pitt SC, & Ms S Brennan of counsel, instructed by Best Hooper solicitors. Evidence was called from:

• Mr R Wiese, engineer.
• Mr A Organ, ecologist.
• Dr T Walker, scientist.
• Mr D Brewin, agricultural consultant.
• Dr N O'Connor, scientist.
• Mr M O'Brien, traffic engineer.
• Mr S Calhoun, landscape architect.
• Mr R Milner, town planner.
• Mr A Biasci, town planner.

Mr P O'Farrell of counsel instructed by Norton Rose. Mr S Fiedler of Norton Rose solicitors on Days 4 & 8.

Application P1970/2010 - Applications by Healesville Environment Watch Inc. & Bill Boerkamp, and Friends of the Earth Inc., under Section 82 of the Planning and Environment Act 1987 [PE Act] seeking review of a decision by the Yarra Ranges Shire Council to issue a Notice of Decision.

Application P2233/2010 - Application by Eastern Golf Club Pty Ltd seeking review of conditions in the same Notice specifically Conditions 1(c), (k), (l), (m), (o), (r), (s) and (t); 8; 22; 25; 28; 40; 51; 60; 70 and 72.

Use and development of the land for a golf course comprising 27 holes, plus a shorter nine hole course, clubhouse, function centre for 150 persons, group accommodation, and turf farm of 11.7 hectares. The proposal is accompanied by a landscape masterplan and series of other reports and plans.

• Green Wedge Zone Schedule 4 [GWZ4].
• Significant Landscape Overlay - Schedule 4 [SLO4].
• Land Subject to Inundation Overlay (part) [LSIO].
• Wildfire Management Overlay [WMO].
• Environmental Significance Overlay-Schedule 1 (part) [ESO1].
• Erosion Management Overlay (part) [EMO].

Clauses 35.04, 42.01, 42.03, 44.01, 44.04, 44.06, 52.05, 52.06, 52.17 and 53.

Clauses 10, 11, 12, 13, 14, 15, 17, 19, 21.06, 21.09, 22.04, 22.06, 22.07, 52.06, 52.09, 52.10, 52.17, 52.29, 57 and 65.

The review site is on the west side of Victoria Road and is 240 hectares in area. It is bounded by the Yarra River, including Yering Gorge, to its west and partly sits in the floodplain. It is used for horse agistment, grazing and an equestrian centre. A large stand of native vegetation is in the western part of the site in addition to the Yering Cottages (12 one and two bedroom cottages) and a 100 person function centre. Two Section 173 Agreements apply to the land. Rural residential properties abut the eastern portion of the site.

10 November 2010 as parties were advised at the start of the hearing. An inspection of the site including the abuttal with the Yarra River was undertaken on 29 November 2010.

1. The Eastern Golf Club proposes to relocate from its current site in Doncaster to the review site in these proceedings. It applied to the Yarra Ranges Shire Council for a permit to establish a 27 hole golf course, smaller par 3 nine hole course, and turf farm (wholesale) on a site that is partly within the Yarra River floodplain. These are proposed on a site that has tourist accommodation cottages and a function centre for 100 persons. It is proposed to relocate, and enlarge, the function centre to 150 persons to be attached to clubhouse facility that would service the golf course. The existing function centre would be converted to an additional cottage. A caretaker's dwelling would be added in a former quarry near to the cottages while two existing dwellings on the site would be removed.
2. Two proceedings are before the Tribunal in relation to a decision by the Yarra Ranges Shire Council to determine to issue a permit subject to conditions. Conditions include those required by referral authorities such as Melbourne Water and the Department of Sustainability and Environment.
3. Opponents of the proposal, Healesville Environment Watch Inc., Bill Boerkamp, Friends of the Earth Inc., request the Tribunal to set aside the Council's decision. The permit applicant, Eastern Golf Club, has sought review of some conditions contained in the Notice of Decision issued by the Council. It is noted that some variations were agreed during the course of the hearing between the Council, Melbourne Water and permit applicant.
4. The Tribunal must decide whether to grant the planning permit and, if so, what conditions are required. The grounds relied upon by the parties in both proceedings require us to consider the following key questions:
   • Do the proposed land uses meet the statutory requirements including Clauses 35.04, 53 and 64 of the Yarra Ranges Planning Scheme?
   • Are the proposed land uses acceptable in terms of planning policy?
   • Has the proposal sufficiently dealt with the implications of its siting in the floodplain with respect to flood management?
   • Would the proposal have unacceptable environmental impacts in terms of the water quality of the Yarra River and Sugarloaf Reservoir?
   • Would the proposal represent an acceptable landscape outcome?
   • Would the proposal be acceptable in terms of traffic impacts?
   • Would the proposal be acceptable in terms of amenity impacts?
5. We address these matters in turn below having regard to the relevant provisions of the PE Act and the Yarra Ranges Planning Scheme.

Do the proposed land uses meet the statutory requirements including Clauses 35.04, 53 and 64 of the Scheme? [2]

1. There are several statutory tests with respect to the proposed land uses through the GWZ4 and Clause 57 as well as the provisions of Clause 53 of the Scheme. Mr Morris and Mr Walker submitted the tests are not satisfied and that the proposal is prohibited under the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan [RSP].
2. Having regard to these submissions, and evidence relating to them, before a permit could be granted, the Tribunal must be satisfied that:
   • the 'in conjunction with' requirements of the Scheme are met;
   • the 'in association with' requirements of the Scheme are met;
   • the proposal is not prohibited by the RSP; and
   • there are no procedural defects that should cause the application to fail.

Does the proposal meet the "in conjunction with" tests of Clauses 35.04 & 64?

1. The 'in conjunction with' requirements of section 2 of Clause 35.04 and Clause 64 apply to the function centre and group accommodation. In effect, a permit may be granted for a function centre only if it is to be "used in conjunction with Agriculture, Outdoor recreation facility, Rural industry or Winery".[3] While no permit is sought for group accommodation as there is already a permit for this use, the parties all proceeded on the basis that the same test applies.
2. For a use to be 'in conjunction with' another use, "there must be an essential association between the two uses" and "the use must have a genuine, close and continuing functional relationship with the other use".[4] The leading case on the meaning of these requirements is Jinalec Park Pty Ltd v Mornington Peninsula SC.[5] There, the Tribunal preferred a broad, purposive view which focussed on the uses in the context of the broader region and planning policy for the area. In particular, the Tribunal stated:

The key point in this provision is that decisions about Section 2 uses must be based on whether the proposal will produce acceptable outcomes in the context described.

Consideration of the term 'in conjunction with' must also lead to acceptable outcomes in the same context, which includes the purpose of the zone. This means the purpose of the zone as a whole, not just selected purposes. Thus where the zone purposes include reference to tourism and recreation, these are just as relevant as references to agriculture and the environment.[6]

1. In terms of scale, the primary use must remain a significant use of the land.[7]
2. Mr Morris invited us to depart from Jinalec Park on the grounds that it had been decided incorrectly. He also said Clause 64 derives from the Tribunal's decision in Bristow.[8] We do not accept Mr Morris' submission. While the purpose of the provision may be unclear having regard to the explanatory report for the relevant amendment, it was open for the Tribunal in Jinalec Park to make its findings about the purpose and operation of the Clause. This is particularly so having regard to the Supreme Court's earlier decision in Boucher v Dandenong Ranges Steiner School.[9]
3. The first limb of the 'in conjunction with' test requires "an essential association" between the two uses. In Jinalec Park, this was held to be a question of fact. It was held to be a "symbiotic" relationship and one that was a close (but possibly broad) association of an aesthetic, economic, practical or environmental kind providing mutual benefit.
4. Applying Jinalec Park to the function centre, we agree with the Council and permit applicant that there is a symbiotic relationship with the golf course. This is demonstrated in multiple ways. It is a close relationship in a physical sense as function centre patrons share access, parking and other facilities including in one building that contains the function centre and golf clubhouse. It is also functional and environmental, in the sense of waste water from the function centre being recycled for golf course use. It is also aesthetic in that function centre patrons can enjoy the landscaped outlook of the golf course. Patrons would also travel through the landscaped environs of the golf course to reach the function centre. It is economic as a single entity is proposed to operate both the function centre and golf course and function centre revenues will support golf course maintenance.
5. Applying Jinalec Park to the group accommodation, we consider there is a symbiotic relationship with the golf course as an outdoor recreation facility. There is shared management and access, the use of the cottages by members using the golf course and their guests, and income derived from both uses that would be mutually beneficial. There is also the landscaped quality of the golf course that would contribute to the amenity of the cottages.
6. In both circumstances, the primary uses being the function centre and group accommodation would be significant uses of the land.
7. The second limb of the 'in conjunction with' test requires a genuine mutual benefit and a close functional relationship. The function centre satisfies this requirement because, inter alia, there is a mutual benefit to the golf course in that members or patrons could enjoy golf and functions, and the function centre benefits from an attractive location. There is a close functional relationship through the sharing of facilities and joint management.
8. The group accommodation also satisfies the requirement for similar reasons. Our conclusion is not negated by scale as both are significant uses.

Does the proposal meet the "in association" tests of Clause 53?

1. The 'in association with' requirements apply to an outdoor recreation facility (in this case, the golf course)[10], a place of assembly (in this case, the function centre) and retail premises (other than a restaurant) (in this case, primary produce sales being the sale of turf).
2. The golf course, function centre and turf sales "must be associated with an agricultural activity being carried out on the land or provide recreation or tourist facilities in association with tourist accommodation".[11] The expression 'in association with' is not defined in the Scheme, the PE Act or the Interpretation of Legislation Act 1984. It therefore has its ordinary meaning. The ordinary meaning connotes a connection, a combination or a joining in a positive way.[12] In the context of the provision in the Scheme, we consider association requires a positive or beneficial relationship. It is not as demanding as the defined 'in conjunction with' test because there is no requirement for an 'essential' association and no need for a 'close and continuing functional relationship'.
3. Applying the test requires defining the scope of 'recreation or tourist facilities' and 'tourist accommodation'. These expressions are not defined in the Scheme.[13] The contentious item is a tourist facility. In the context of the RSP, to which Clause 53.01 is directed to implementing, we consider a tourist facility is land or buildings to which a person away from their normal place of residence is attracted for social, heritage, cultural, recreational or environmental or other like purposes.[14] We are satisfied that, for the purposes of Clause 53, the golf course is a recreation facility, the function centre is a tourist facility,[15] and the cottages are tourist accommodation.
4. We find that the golf course including the clubhouse is associated with tourist accommodation, being the cottages, for a range of reasons including shared management, the mutual benefit of golfers being able to stay near the golf course and cottage occupiers being able to play golf, and the revenue source for the golf course.[16]
5. We find that both the golf course and turf sales are associated with an agricultural activity, being the turf farm. Although 'agricultural activity' is not defined, it would include 'agriculture' as defined in the Scheme or an activity involving aspects of agriculture (as defined).[17] Growing turf in the form and scale proposed is an agricultural activity. Consequently, we find:
   • There is a direct association between the golf course and turf farm such as in terms of ongoing use of turf from the farm on the golf course, joint management of the facilities, shared office/maintenance facilities and shared equipment.
   • The turf sales are associated with the agricultural activity of growing turf. Turf will be grown and loaded for sale on the land, and an estimated 50% of turf grown will be sold wholesale and then to the public when the golf course is completed. There will be a continuing association between the turf sales and the golf course given turf will be used on an ongoing basis to service the golf course even though demands for turf will be greatest during the establishment of the golf course.
6. The function centre provides tourist facilities in association with tourist accommodation. Patrons of the function centre will be able to stay at the cottages. It is likely that opportunity would be exercised. Joint income and management streams are further indicators of the genuine association.

1. In this section, we consider Mr Morris' submissions (adopted by Mr Walker) that the proposal is prohibited by the tourism or floodplain management provisions of the RSP.

Land that is proposed to be used for a major tourist facility must ... be located within a ... Rural Policy Area (other than an Intensive Agricultural Policy Area) and be included within a zone that specifically provides for such uses.

1. The review site is located within Rural Policy Area 1. Mr Morris submitted that the golf course is a major tourist facility and the GWZ4 in which it is to be located does not specifically provide for a golf course. Consequently, he submitted the golf course is prohibited, unless and until the Scheme is amended to include the land in an appropriate zone such as a special use zone.
2. The submission is an approach to the interpretation of Clause 16.14 of the RSP with which we disagree for several reasons.
3. First, we do not accept that the RSP contains mandatory planning controls. Clause 53.01 of the Scheme is the means by which the RSP is given effect. Clause 53.01 does not purport to prohibit a major tourist facility in the manner suggested by Clause 16.14. Section 46F of the PE Act confirms that the RSP restricts the power of the Minister to only approve amendments to the Scheme that are consistent with the RSP. Section 46G also required works by public authorities to be consistent with the RSP. However, the PE Act does not provide that the RSP independently restricts private development. The RSP is a valuable strategic document[19] and relevant through Clause 11.04. We return to it again later.
4. A related submission by Mr Morris was that Clause 16.08 of the RSP prohibits the proposal. It provides that:

A diverse range of recreational and tourism opportunities are to be encouraged in appropriate locations in Rural Policy Areas (other than Intensive Agricultural Policy Areas), provided that they are in keeping with, and enhance, the existing overall character of the area and the maintenance of rural and agricultural pursuits, visual and environmental quality and residential amenity.

1. If we accept that the proposal is a 'recreational and tourism opportunity', is the proposal prohibited unless it is "in keeping with, and enhance[s] ... the maintenance of rural and agricultural pursuits..."? Mr Morris submitted the proposal does not 'maintain' any such pursuits because all existing pursuits will be ended and a new pursuit of turf production will start. At this point, it will suffice to say that we find Clause 16.08 is a policy and not a control. Clause 53.01 does not give effect to the policy by providing a control.
2. Second, and even if we are wrong on the above, we doubt that the proposal is a 'major tourist facility' for the purposes of Clause 16.14.[20] Although the planning report accompanying the permit application stated that the proposal was a 'major tourist facility', that does not make it one for the purposes of Clause 16.14. Even if the expression is broken into its three constituent parts (which we do not accept is a helpful approach) and is accepted as being 'major', could be used by a 'tourist' (in its wide sense), and as being a 'facility', that also does not make it a major tourist facility for the purposes of Clause 16.14. In the context of the RSP, in particular Chapter 16, a 'major tourist facility' is a large scale visitor attraction. Examples are Healesville Sanctuary and Puffing Billy Tourist Railway.[21] These substantial tourist facilities attract significant numbers of local, interstate and international visitors. Parts of the proposal will attract visitors but relevantly it is also a private golf club. We characterise the proposal as a major recreation facility and a tourist facility for the purposes of Clause 16.14. The golf course is in conjunction with, and offers, associated tourist facilities in the form of group accommodation and a function centre. It is an integrated package.
3. Even if we are wrong, we do not find the site's zoning to be an impediment because the proposed uses are permitted in GWZ4 and, importantly, the RSP policies are not mandatory and do not override the Scheme.

1. The RSP provides that "[d]evelopment within Rural Policy Areas may only occur on land (within a designated development envelope) which ... is not within a floodplain management area (except as allowed under Policy 10.02)".[22] The land is within a Rural Policy Area and is within a floodplain management area. The exception in policy 10.02 does not apply.
2. We do not accept Mr Morris' submissions that the proposal is prohibited because (for reasons explained above) the RSP does not operate as a separate planning control regime. It would admit of an absurd outcome that all minor development in a floodplain management area was prohibited. The notion of a prohibition is not adopted by the RSP itself when one considers the effect of Clause 10.03 of the RSP.

1. There are several other procedural matters that are appropriate to record arising from the parties' submissions:
   • The parties agreed with respect to the specific permissions required under each of the Clauses we have listed in the Information section of these reasons. We add the existing use rights provisions of Clause 63 were not relied upon by the permit applicant or objectors although they were referred to in some planning evidence. No permit application has been made under Clause 52.27.
   • There are no third party rights with respect to land in the LSIO but the parties agreed flooding is relevant in both proceedings given the other permissions that apply from which third party rights are not excluded.
   • A Cultural Heritage Management Plan was approved for the site. Advice was obtained from Heritage Victoria with respect to the Victoria Heritage Inventory.
   • The permit applicant referred the proposal to the Commonwealth under the Environmental Protection and Biodiversity Conservation Act 1999 and was advised that it is not a controlled action if undertaken in the manner set out in the decision.[23] That decision reflects pesticides referred to in Condition 60 of the Notice of Decision and, consequently, changes to the list of pesticides would, we were advised at the hearing, require further approval.
2. The parties referred to two other matters with respect to the processing of the permit application that we briefly address next:
   • The application was not referred to the Country Fire Authority under the provisions of the WMO. However, advice from the CFA was sought by the Council before the hearing. The CFA indicated it would not oppose the proposal subject to conditions.
   • The application was also processed by the Council without the views of the National Trust being obtained as referred to in SLO4. Again, we note that a party to the proceeding obtained written advice from the Trust which indicated the land is not within a landscape classified by the Trust. The Trust supported an historical archaeological assessment or survey with peer review.
3. In these circumstances, we are satisfied the procedural defects referred to in some submissions have been overcome by the further advice obtained.[24]

Are the proposed land uses acceptable in terms of planning policy?

1. Planning policy for the site and wider area has several important themes that emerge from the purpose of GWZ/GWZ4, the various Overlays that apply, relevant State and local policies, State Environment Protection Policy (Waters of Victoria) [SEPP], and the RSP. They require consideration of key matters[25] including:
   • The potential for the proposal to result in the loss, and fragmentation of, agricultural land.
   • The contribution the proposal can make to other green wedge and wider values such as recreation and tourism.
   • The protection of floodplains and water catchments including with respect to floodplain capacity and water quality.
   • The protection of environmental, habitat and biodiversity values.
   • The landscape values and scenic qualities of the area.
2. We do not consider these themes or values as identified in the policies and provisions that apply through the Scheme and other legislation are fundamentally in issue in this proceeding (other than the RSP that has been discussed above). The debate focuses on the proposal's response to them and the weighting that might need to be ascribed where there are any competing or potentially conflicting policies or outcomes. In such circumstances, Clause 10 requires the Tribunal must decide in favour of net community benefit and sustainable development.

How would the proposal impact upon the agricultural land resource?

1. We accept submissions by the project's opponents that the proposal would result in a loss of agricultural land even if the site currently has a relatively low intensity of use for horse agistment.
2. The loss would be substantial in terms of land in a single ownership with potential for continued or more intensive use even though the land represents a small proportion of all land within GWZ4.
3. In reaching this conclusion, we do not accept a submission by the Council that agricultural activities can not readily occur in a floodplain. Such use is clearly possible albeit there will be limitations on various activities. We also find there are no other significant physical constraints, such as the slope, except that the areas of native vegetation, restricted by agreement, would not be usable.
4. We do not consider a diminution of a large area of agricultural land, including land within a floodplain, is generally supported by Scheme policy or the RSP. Clause 21.04 draws attention to the importance of agricultural land to the Shire's economy, the desire to strengthen the agricultural role of the Shire and to retain farming in the ongoing management of green wedge areas.[26] It is policy to retain land in the GWZ4 area for grazing as the predominant land use. This is consistent with the primary purpose of the Rural Policy Area 1 area in the RSP to:

... maintain and protect its soils and water resources for a variety of broadscale agricultural and rural activities, to control land use and land management activities in a manner conducive to the maintenance of landscape character, and to protect and enhance the remaining areas of native vegetation, protect the native fauna and maintain and improve water quality.

1. The potential loss of productive agricultural land is also identified in the most recent strategic planning work of the Council - the Green Wedge Management Plan.[27] Pressures for alternative uses and rising land values are influences. This adopted Plan cannot be given the same weight as the Scheme but the themes are consistent with current State and local policy.
2. In submitting the conversion of the site to other uses is acceptable, the Council and permit applicant relied on evidence that the turf farm would produce higher returns than the current use of the land and that the lost land could be replaced by higher stocking rates on existing farms in the wider area. They also said there would be some ability for the whole of the land to revert to some form of agricultural activity. Evidence from Mr Brewin included that fragmentation had already occurred given adjacent rural residential uses, the nearby golf course at Yering Meadows, gun club and other like uses that are interspersed with grazing enterprises.
3. We have been mindful of these points. We agree that there could be the ability for the land to revert to some form of agricultural activity, although it is possibly unlikely. However, it remains our conclusion that the proposal would remove and fragment a large area of productive agricultural land.
4. Having said that, our finding must be considered in the context of the introduction of the turf farm on the site which is a legitimate agricultural activity with the potential to link to other businesses.[28] The finding must also be considered contextually insofar as the review site is located within a wider context where some fragmentation has already occurred. Moreover, there are other roles and strategic land use ambitions for green wedge land to be taken into account, as we address next.

How does the proposal respond to other green wedge provisions in the GWZ and Rural Policy Areas?

1. Other policies within the RSP, LPPF and the GWZ make clear that agriculture is not the only desired land use outcome for this area. The GWZ is different to the Farming Zone. It includes among its purposes "to recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational or tourist opportunities, and mineral and stone resources". In addition, Clause 21.04 notes the importance of green wedges for the protection of water quality, habitat and ecological processes, landscape values, and the role for recreation and tourism where linked or in keeping with agricultural and rural pursuits, visual and environmental qualities.
2. For reasons we discuss later, we consider the proposal can potentially achieve an acceptable environmental outcome and environmental benefits. This is relevant in the context of the achievement of these policy aims for the green wedge. In addition, as discussed above, there is no doubt that the proposed use includes a recreation facility and that, too, is potentially an acceptable use in the green wedge areas.
3. There is, however, disagreement between the parties as to whether the Scheme's intent is met given the scale of the recreation facility and having regard to tourism policies. Tourism and recreation uses are addressed in the LPPF where it is policy to promote small low intensity tourist accommodation and tourist facilities that "reinforce established heritage characteristics, relate to agricultural production on the land or provide facilities related to outdoor recreation in areas of natural beauty".[29] Opponents of the golf course and other components of the proposal said the proposal is not small or low intensity. We tend to agree having regard to the scale and multiple components but we also consider the proposal supports the aim of the same policy to ensure tourist facilities are linked with recreation or agriculture and maintain the character. Other parts of the local policy reflect the same themes:[30]

Tourism and recreation proposals demonstrate that they are consistent with at least one of the following: ....

• They are related to the promotion and sale of agricultural products from the land on which they are to be sited or from land in the surrounding area.
• They provide facilities to enable visitors to experience outdoor recreation activities in areas of natural beauty and which are in keeping with the maintenance of agricultural and rural pursuits, visual and environmental qualities and residential amenity.

1. Although the area is modified, notably the valley floor, it is an area with natural elements such as the hills and vegetation that have natural beauty as evident in the area's inclusion in SLO4. We are satisfied regardless of the proposal's description as for tourism and/or recreation, as a package it would enable members and visitors to experience outdoor recreation in a scenic area and continue an agricultural activity through growing turf on the land. That would be sufficient to satisfy the policy if the visual and environmental qualities and residential amenity are also maintained. Another policy includes similar matters and, relevantly, it seeks to "encourage" tourism and recreation uses that are compatible with conservation objectives, minimise adverse impacts on the amenity of local residents, and relate to their immediate environment, particularly the natural environment.[31]
2. If the proposal is a "major tourist facility"[32], then additional Scheme policies apply with respect to enhancing the Shire's predominately rural and green wedge character. Major tourist facilities are be to located:[33]
   • in established townships on sites which can provide convenient access to a full range of retail, community and other support services.
   • in rural areas on sites where the proposed facility will be associated with an agricultural activity being carried out on the land.

(Major facilities are defined as occupying a site of more than 2 hectares or which provide for more than 50 visitors at one time).

1. The area of the review site and proposed size of the function centre accord with the description of "major facility" in this Clause. Based on our earlier findings, the proposal would satisfy this local policy by being in a rural area and by being associated with an agricultural activity on the land.
2. Clause 16.08 of the RSP contains policy for recreation and tourism uses:

A diverse range of recreational and tourism opportunities are to be encouraged in appropriate locations in Rural Policy Areas (other than Intensive Agricultural Policy Areas), provided that they are in keeping with, and enhance, the existing overall character of the area and the maintenance of rural and agricultural pursuits, visual and environmental quality and residential amenity.

1. This, plainly, raises the same considerations. Is the proposal in keeping with and able to enhance the existing overall character of the area and the maintenance of rural and agricultural pursuits as well as visual and environmental quality? We return to some of these matters later. On the question of the "maintenance of rural and agricultural pursuits" we again refer back to our earlier findings with respect to the proposed turf farm and our conclusion that it is a legitimate agricultural pursuit and one that would complement the integrated package included in this permit application. The land area for the turf farm, of 11.7 hectares (excluding access, sales and administration areas), is a relatively small proportion of the entire site but, on the evidence, is a sizeable operation and potentially viable on its own.
2. Other golf courses have been proposed and assessed in the Yarra Valley, such as the now constructed Yering Meadows very close to the site that was the subject of two Tribunal proceedings. One resulted in no permit issuing while the latter resulted in the grant of a permit. The decisions refer to changes in the planning context between the decisions. The former (Bristow) was made in the context of the rural provisions and policies that applied. The latter[34] was made in the context of GWZ4 that had been applied. We were also referred to a further proposal for the relocation of the Chirnside Park golf course to the same area and the potential for this area to benefit from multiple golf courses.
3. Each permit application will always be decided on its own facts and circumstances as apply at the time of a decision. There is no express policy support for the area to be developed with a complex of golf courses. The most recent strategic planning for the green wedge by the Council identifies the pressures on the green wedge created by golf courses relocating from urban areas.[35] This work reinforces the vision for the green wedges as protection of the primary values - biodiversity, agricultural and landscape - with secondary activities such as recreation and tourism recognised as being attracted to these locations. [36] The policy seeks tourist developments to support the primary values. It expressly refers to a trend for golf courses to pursue sites in the green wedge and the need for a Council position "on major recreation facilities including golf courses". It notes the Clause 53 provisions can lead to tokenistic agricultural activities for the sake of responding to a planning requirement. We are conscious of the potential for tokenistic outcomes but, in the current case, the synergies are clear.

1. In conclusion, the proposal would alienate and to some extent fragment productive agricultural land. However, the proposal satisfies policies with respect to recreation and tourism in green wedges particularly given the association with the turf farm and existing accommodation.

1. There is another factor in a land use assessment that we have considered. This is the opportunity that would arise from relocation of the Eastern Golf Course to the site so that the current site would be vacated and available for development. We have very limited knowledge of that site and its potential however we accept submissions and evidence for the permit applicant that vacation of the land would provide the opportunity for urban development consistent with the land's zoning. This is not, however, an overriding influence in weighing up all relevant matters.

Has the proposal sufficiently dealt with the implications of its siting in the floodplain with respect to flood management?

1. The LSIO marks what we understand to be the 1:100 year flood level. While there was some discussion through submissions and evidence as to how that level was derived, notably the experience of the major 1934 flood, and whether modelling might result a lower level representing a 1:100 year flood, it is agreed between the parties that:
   • The designated flood level is RL70.4 metres.
   • The site is not within a declared potable water supply catchment but it is an important catchment that requires protection.
   • The site abuts Yering Gorge which is a point from which water backs up in heavy storm events and floods.
   • The site can flood at any time of the year.
   • Regular flooding will occur of the wetlands, golf course and turf farm including a significant part of these components at a 1 year ARI event.
2. As alluded to, modelling of flood levels is not agreed between the parties. We think it is appropriate to rely on modelling that is accepted by Melbourne Water. Even if that was not the case, it is self-evident that parts of the review site will regularly be inundated, sometimes extensively. Importantly:
   • The 1:100 year flood level adopted for design purposes is very significant as we discuss below.
   • The extent and frequency of inundation is also highly relevant such as with respect to the risk of inundation during the most critical construction phase which we also address below.
3. The extent and frequency of inundation is relevant to submissions that the use of the land for a golf course is unacceptable in principle, but we do not find in favour of an argument that the site should be rejected outright for a golf course because it is located within a floodplain. There are many examples of golf courses and recreation facilities in floodplains across Victoria.

Has the proposal sufficiently addressed retention of floodplain capacity?

1. Having regard to the evidence of Mr Wiese, we accept that a cut and fill balance can be determined. That can ensure that there is no loss of floodplain capacity at relevant flood levels and storm runoff intervals including taking into account the existence of water in wetland ponds (as was the basis of the permit applicant's assessment and evidence).
2. The initial studies for the permit applicant indicated there could be an increase in capacity in the context of the movement of large volumes of soil but any planning permit would require an updated cut and fill analysis to address changes in layout and more detailed design considerations.

How do floor levels and waste water treatment locations respond to the designated 1:00 year flood level?

1. Melbourne Water requested conditions with respect to buildings and works floor levels that were included in the Notice of Decision. These conditions, at Condition 61, were not sought to be reviewed by the permit applicant. They include acceptance of RL70.4 metres as the 1:100 year flood level for design purposes even though modelling for the permit applicant might suggest a lower level. The permit applicant confirmed acceptance of RL70.4 metres at the hearing. Variations to the design would be required to meet the requirements such as building floor levels being 600mm above the flood level, car parks at no greater than 350mm below the flood level, and fixed electricity/mechanical equipment set outside the floodplain.
2. However, during the hearing, Melbourne Water suggested variations to its conditions to enable buildings within the floodplain to be considered. This contrasts with the policy in the RSP which is more definitive that development should not occur with the floodplain. By the end of the hearing, outstanding matters included the following:
   • Part of the car park that is to the east of the clubhouse is shown at below RL70.1 metres, partly by several metres. It would need to be raised to RL70.1 metres.
   • Additional bunding might be required around the clubhouse given the lower floor is at RL69 metres and would be inundated.
   • We were told the proposal includes bunding around the maintenance building although that does not seem to be clearly shown on the earthworks or landscape plans. Those plans also show a second access within the floodplain. The design floor level for the shed is RL68.5 metres. We understand that Melbourne Water is willing to consider alternatives but we also note its preference for the maintenance facility to be outside the floodplain.[37]
   • The plans show fuel and chemical storage areas as well as mechanical plant and equipment within the 1:100 year flood level in both the maintenance shed and clubhouse. That would appear to contradict principles advanced by Melbourne Water unless it was willing to vary it position as a result of bunding around the facilities.
   • Plans show the 1:100 flood level contour in different positions. An example is comparing the overall masterplan with layout plan.[38] The earthworks plan also has the 100 year flood level under RL69 metres which we would understand was based on modelling for the permit applicant even though we have recorded the permit applicant's position at the hearing that it accepts RL70.4 metres as the flood level.
3. We have no details about works associated with the turf farm. We understand that the wholesale operation would be managed from the maintenance shed so that no structures are required in the floodplain. We also note from the planning report submitted with the permit application that a future application would be made with respect to access and parking on this part of the site. We think it would be preferable for these matters to be resolved as part of one application particularly because this may affect the cut and fill balance.
4. There are also outstanding issues with respect to the siting of waste water treatment facilities as referred to by Mr Walker notably the following:
   • The main waste water treatment facility is shown on the detailed plan for the maintenance shed to be below a RL70 metre contour.[39] That would not accord with Melbourne Water's conditions. The treatment facility would require works approval from the EPA. Given the opportunity to locate this facility outside the floodplain, we consider such an outcome is likely to be preferable even though there may be an engineering solution to retain it in the location shown on the plan.
   • Melbourne Water seeks stand-alone toilet facilities serving golf course users to be located as far as practicable from the River. We have no detail about proposed locations or the ability for such facilities to comply with Guideline 2 of "Planning permit applications in potable water supply catchment areas, May 2009"[40] such as with respect to setbacks from the River, wetlands and water bodies. There is no land capability assessment of which we are aware and none is required by permit condition in the Notice.
5. We are concerned about these outstanding matters.
6. There is a fundamental question as to the extent to which buildings of the type and scale proposed should be sited in the floodplain even if they can be engineered to limit water inundation.
7. It is not consistent with policy and usual planning principles to allow such works particularly given the opportunity to locate these buildings outside the 1:100 year flood level.
8. If we give weight to the position adopted by Melbourne Water at the hearing, we consider many of the outstanding matters may be able to be engineered and thereby resolved by changes to the plans also requiring a new cut and fill balance. However, the outcome of this series of required changes is not clear. We do not have information about consequential impacts such as the extent and grades of bunds that might in turn affect the golf course layout, landscape concept and treatment, erosion control, or the potential to site toilets around the golf course.

1. Arguably the most critical issue that arose through evidence for the project's opponents concerned emergency access during flooding. A flood response plan for the golf course addressed a range of matters including an alternative evacuation route using a cart path and maintenance path along the southern boundary and part of the eastern boundary. The plan suggested that a short section of the route would be inundated by only around 400mm at 1:100 year events.[41] However, Mr Sutherland's evidence demonstrated that the main access and proposed emergency access would both be well under RL70.4 metres - by up to 4.9 metres for the main access and up to 3.1 metres for the evacuation route. The latter would be below RL70.4 metres for a length of possibly some 530 metres.
2. This resulted in two proposals being presented through Mr Calhoun's evidence on day 7 of the hearing. One, which he did not prefer, was a bridge rising to around 3.2 metres, potentially several hundred metres in length, and 14 metres wide along parts of the site's southern and eastern boundaries. The other proposal involved raising the main access as shown in a sketch that was tendered. We note that currently there does not seem to be an access route for the cottages that would be above the 1:100 year level but the two proposals would enable evacuation from the cottages as well.
3. To what extent can the sketch be relied upon by us in an assessment and in deferring detailed design and siting to secondary consent as suggested by the Council and proponent? To give the sketch influential weight in terms of providing reliable design parameters for our assessment is problematic and inappropriate because:
   • The alignment is based on the road position shown in the application plans and does not appear to take account of revisions to accord with an agreement reached with an abutting property owner (referred to in Condition 1 a). Consequently, the road position, batters, bridge take-off points, and possibly elements of the golf course greens/tees, could vary from the concept in the sketch.
   • There is no detail about grades for the road/bridge or batters, mindful that elevating the eastern section of the car park would be required so as to be no less than RL70.1 metres.
   • There has been no traffic engineering input, no civil engineering input, or advice from any referral authority that might influence the form and/or position of the road and a bridge or to address the requirements for flood flow beneath the bridge. Mr O'Brien's preliminary opinion in cross-examination was that bridging the access road would not be cost effective.
   • We have no information about the design and materiality that might be adopted or the potential for landscaping in association with the works.
4. Dependent upon detailed design, and if we assume the route could achieve the necessary flood level without reducing floodplain capacity, this late revision to the proposal involves a substantial piece of infrastructure in the part of the site that is most proximate to abutting properties and visible from Victoria Road. It:
   • May give rise to an additional consideration under Clause 53 of the Scheme for a building within 100 metres of a dwelling on another site.
   • May have consequences for approvals already given under the Aboriginal Heritage Act 2006, Environmental Protection and Biodiversity Conservation Act 1999, and through Heritage Victoria.
   • Would change the landscape masterplan and consequently the visual assessment upon which the permit application and expert evidence have been based.
   • Could have potential amenity impacts for the nearby residential properties. For example, the planning report accompanying the permit application refers to the road as "being set below the surrounding ground level and buffered by mounds and vegetation so that headlights using the accessway at night will be captured and will not affect surrounding residents". [42] With the access elevated, we are unable to assess whether that conclusion can still be reached.
   • May require additional notice to referral authorities.
   • Should, given its proximity to the site's boundaries, be the subject of notice to adjacent property owners and occupiers.
5. Even though we could expect an engineering solution to this matter, we accept the submissions of Mr Morris and Mr Walker that there are uncertainties that are problematic procedurally and in terms of being able to form a conclusion as to whether this substantial piece of infrastructure would achieve an acceptable planning outcome.

1. There were some submissions that the volume of water required to service the project would be substantial and such use was questioned. The proposal includes re-use of Class B recycled water. The application sets out proposed sources of water supply. We do not consider this matter is central to the dispute.

What conclusions does the Tribunal reach with respect to floodplain management?

1. We are satisfied that the proposal could be engineered to ensure that there is no net loss of floodplain capacity across relevant intervals and that a cut and fill balance could demonstrate this based on a final design. We have concerns, however, with respect to the siting and protection of buildings and the car park in the floodplain and the insufficient response to an acceptable escape route.

Would the proposal have unacceptable environmental impacts in terms of the water quality of the Yarra River and Sugarloaf Reservoir?

1. There is no dispute between the parties that:
   • Water quality is important to protect for drinking water and habitat reasons. Aquatic ecology includes threatened and endangered fish species such as the Macquarie Perch, Murray Cod and Australian Grayling. Siltation can affect the ability of these communities to survive and breed.
   • The land will frequently flood although, as indicated above, the extent and frequency of flooding is not agreed. Regular flooding will occur of the wetlands and golf course with the potential for scour and erosion being low following establishment of the golf course. Flooding of much of the turf farm would also occur.
   • Construction is the most risky time when earth would be exposed and potentially subject to being washed into the River whereas outside flood events sediment loads from stormwater events could be contained and managed provided the network of waterways, ponds and wetlands is operated and maintained adequately.
   • There can be no "cast-iron" guarantees that there will not be runoff or accidents with respect to chemicals and biocides used on the site.
   • Staging is expected to occur although there is no specific staging plan at this time.
2. The catchment is not declared, and the status of documents such as the Planning permit applications in potable water supply catchment areas, May 2009 can be argued.
3. However, the parties agreed that it is relevant to have regard to the site's relationship to one intake for the Sugarloaf Reservoir, strong policy within the Scheme with respect to water quality, and the requirements of SEPP.
4. The main grounds relied on by Mr Morris and Mr Walker relate to the potential for sediment, pesticides and fertilisers used by the golf course, and treatment of wastes to runoff from the site into the Yarra River thereby placing Melbourne's drinking water and threatened species at an unacceptable level of risk.
5. In addition, they submitted there is potential for the irrigation and other operating systems to fail. Mr Morris and Mr Walker submitted this would be inappropriate as it would fail to give effect to SEPP, would be contrary to safe floodplain and catchment management practices, and would also be contrary to the precautionary principle.
6. These submissions were challenged by the proponent, Melbourne Water and Council based on expert evidence and the assessment of the proposal undertaken by Melbourne Water.

Can the potential for sedimentation, erosion and scouring be addressed?

1. We have considered the various points of dispute between experts called for the permit applicant and project's opponents. Some of these matters included the appropriate form of any baseline data for water quality in the River; the adequacy of surveys for threatened and endangered species; and risks to surface waters during storm and flood events including erosion and scouring.
2. The Construction Management Plan and Environment Improvement Plan were said by witnesses for the permit applicant to be appropriate to address all of these matters whereas witnesses such as Dr Deere and Mr Withers said they were inadequate with respect to water quality monitoring. Contrary to the evidence of Dr Walker and Mr Wiese, Dr Deere and Mr Withers said the design detail should be available at this time and not deferred to a later stage. Monitoring and review by Melbourne Water and the EPA was regarded as important by all witnesses.
3. There is, we find, the potential for sediment mobilisation during rainfall and flood events including during the construction phase that is likely to be relatively lengthy given the scale of the project. There may also be potential issues with respect to bunding dependent on how batters are formed and finished.
4. We also find, however, that the potential risks to water quality can be addressed through the detailed design of the site including drainage and wetland systems to the approval of the Council and Melbourne Water. The Construction Environment Management Plan and Environment Improvement Plan, approved by the relevant authorities, would be critical to the achievement of a satisfactory outcome.
5. The current drafts of those documents are not complete but we are persuaded by the expert engineering evidence before us that those documents can be refined, and their actions implemented, to ensure sediment is not transported downstream to the Yering Pump Station during normal operations and storm and flood events. Monitoring and review would be integral to this. We are satisfied a suitable program could be developed for approval by regulatory authorities such as Melbourne Water. These are matters which, in law and practice, may be appropriately dealt with by secondary consent.

Would the use of pesticides create unacceptable risks or outcomes?

1. The golf course and the associated turf farm would use a significant volume and range of biocides with the potential to affect water quality should there be contaminated runoff. The conditions on the Notice of Decision name three pesticides (biocides) that are authorised for use having regard to the assessment submitted on behalf of the proponent as referred to by Dr Walker. It is, however, apparent that additional pesticides/biocides are required for the golf course's operation particularly to the design quality intended. It was also apparent that there are problems with Condition 60 such as with respect to a failure to nominate application frequencies.
2. During the hearing, the permit applicant agreed to a tier 2 assessment for all biocides to be used on the site and Melbourne Water's revisions to Condition 60 that address the action levels sought through Dr Deere's evidence. This is significant because it effectively accepts the position put by Dr Deere including with respect to Guidelines to be applied.
3. We are also mindful of water quality monitoring undertaken by Melbourne Water and its submission that the risks to water quality posed by the development are low relative to the existing land uses in the catchment.
4. We do not, therefore, need to recite all of the analysis provided in expert evidence including with respect to background and detection levels, the requirements of SEPP, Planning permit applications in potable water supply catchment areas, Tribunal cases referred to, and policies such as the Australian Drinking Water Guidelines. It will suffice to say that if we had determined to grant a permit that the valid concerns about biocide and pesticides could have been addressed in a manner that we would have found acceptable. We would have agreed to this matter being dealt with by a permit condition requiring the risks of all proposed chemical products to be used on the site to be reviewed through a quantitative human health and ecological risk assessment and detailed conditions with respect to monitoring.
5. We accept Melbourne Water's and Dr O'Connor's positions with respect to the proposed monitoring regime which we consider, if developed and operated in the manner required, would ensure that the use of pesticides would not create unacceptable risks or outcomes. A wider regime of biocides requires further EPBC approval.

1. Mr Morris and Mr Walker submitted there is possibility of increased nutrient runoff from the site and for this to potentially be a tipping point for algal blooms in the Sugarloaf Reservoir or on-site. Relying on the evidence of Mr Bloink, they submitted this would pose an unacceptable risk.
2. Dr Walker and Mr Organ disagreed. Melbourne Water referred to the impacts on aquatic fauna as a consequence of the proposal that must be considered in the context of existing conditions in the catchment. It was satisfied that the risks would be low or acceptable and can be mitigated against through the Construction Environmental Management Plan, best practice stormwater quality infrastructure during construction and operation of the development, and management controls.
3. We agree with the objectors that there is potential for nutrient runoff. Our findings on this question are similar to those above. That is, we accept Dr Walker's and Mr Organ's evidence that, subject to a suitable management and monitoring regime being developed and operated in the manner required, the potential for nutrient runoff can be managed and would not create unacceptable risks or outcomes with respect to water quality.

What is the potential for spray drift to affect others?

1. While not the subject any significant discussion at the hearing, the potential for spray drift is relevant with respect to the proximity of residential properties to the east side of the golf course, near to the turf farm, and having regard to the location of the cottages. We understand that there are regulations with respect to this matter and we have assumed that they can be complied with. We also note reference to this matter in the draft Best Practice Commitments - Pesticides and Fertiliser Use at Eastern Golf Club. [43] If we had determined to grant a permit, this matter would have also been included in a pesticide/biocide management plan.

1. There was no particular dispute with respect to the removal of vegetation from the land. Surveys were undertaken to assess the presence, or possible presence, of flora and fauna including the Growling Grass Frog and River Swamp Wallaby-grass. We do not intend reciting the details of this material. We are satisfied on the evidence before us that the proposal would not adversely affect threatened flora or fauna and has the potential to enhance the land's environmental qualities as a consequence of the network of wetlands and extensive planting program. Re-instatement of a 30 metre riparian corridor abutting the Yarra River would be an important and positive outcome. That requires modifications to hole #16 to ensure that corridor, with rural style fencing, is secured from human impact.
2. A related matter raised through the objectors' submissions is the potential for a proliferation of pest fish. We agree with Melbourne Water that this potential as a consequence of the proposal must be considered in the context of existing conditions in the catchment where pest fish such as carp are present in many billabongs and dams.
3. This project is more likely to be managed in a way that fish in the wetlands and ponds can be controlled. We therefore find that subject to a suitable management and monitoring regime being developed and operated in the manner required, the potential for pest fish would not create unacceptable risks or outcomes.

1. As is the case with the issues discussed above, there is the potential for groundwater to be affected by the proposal. This might arise from sources such as recycled water used in irrigation. A condition requiring ground water monitoring is proposed by Melbourne Water and we are satisfied that a program could be developed and implemented.

1. A balance assessment of the proposal and evidence before us must take into account the potential environmental benefits and enhancements that could result from the proposal. In addition to the prospect of better management of runoff from the site as discussed previously, we accept arguments for the Council and permit applicant that the proposal would:
   • Result in a substantial increase in indigenous vegetation and a wetland network that would provide habitat and enhance the biodiversity values of the land.
   • Continue protection of the bushland area as is required by the Section 173 agreement.
   • Supplement the existing bushland that is protected by a Section 173 agreement.
   • Create a riparian zone along the Yarra River frontage (subject to variation to hole #16) and remove livestock from that area.
   • Provide for water quality monitoring and review regime that does not currently apply to the land.

What conclusions does the Tribunal reach having regard to applicable policies, legislation and the precautionary principle?

1. State and local policy places much importance on the environmental values of this area. The relevance of the precautionary principle is accepted by all parties.
2. We have been satisfied on the evidence presented, and submissions of Melbourne Water and the permit applicant agreeing to some changes in permit conditions, that, on the balance of probabilities there is not a threat of serious or irreversible damage to the environment if stringent permit conditions relating to construction and operation were complied with.
3. Opponents of the proposal say that conditions are not sufficiently developed or able to be implemented to safeguard the environment. There are always risks. However, we find these technical aspects of the proposal could be dealt with having regard to the evidence presented through these proceedings. There is no current assessment of inflows to the Yarra from the site and a more regulated and monitored regime offers benefits.

Would the proposal represent an acceptable landscape outcome?

1. The landscape and scenic values of the green wedge are recognised through various policies in the Scheme and by the inclusion of the site in SLO4. The Overlay refers to the expansive rural plains of the Yarra Valley with its majestic mountain backdrop which is a feature of the area in which the review site is located. As the Overlay recognises, the landscape is modified but the aim of the Overlay is to ensure the balance of natural and man made landscape elements is retained. Inappropriate visual intrusions are to be avoided. Key elements of the significant landscape in SLO4 include:
   • A broad open rural character which is dominated by the backdrop of mountains.
   • The flood plain contains numerous billabongs and other wetland features.
   • The protection and enhancement of remnant vegetation and wetland features along the river are necessary to ensure the long term retention of the landscape values of this area.
2. The proposal involves several low profile, long, buildings as well as a new caretaker's cottage in an existing quarry area that is located close to the entry to the Yering Cottages complex. The concept for the clubhouse/ function centre is for this complex to sit into a hill with a landscaped backdrop. Removal of cypresses that line the roadways within the site is required. Planting of a large amount of vegetation most of which would be indigenous is proposed including a riparian corridor along the Yarra River. The turf farm would present to Victoria Road.
3. Based on the landscape concept included in the permit application, the proposal would change the landscape and the manner in which the site reads as being part of the floodplain. It would affect the open rural views. However, the impact is not unacceptable as the generally low profile and open character would be retained. Moreover, aspects of the design would positively support the SLO4 elements such as the network of wetlands and ponds and extension of the bushland zone. The backdrop of the ranges would remain dominant.
4. We also note Mr Glossop's evidence that landscaping and building design are "well handled by the permit applicant".[44]
5. The caretaker's dwelling and revisions around the Yering Cottages would not have any significant landscape impact.
6. Elevating any of the buildings, or moving them to be above RL70.4 metres, could change the overall concept so that buildings and structures become more dominating particularly the maintenance shed and car park. Even so, we expect they could probably still achieve an acceptable outcome if the landscape treatment provides for some screening and can be developed to comply with CFA's conditions.
7. However, we do not have any degree of certainty about the length, height (structure plus elements such as balustrades) or design of a bridge and associated works associated with the modified internal road. It would need to be substantial given the breadth of the floodplain to be traversed (several hundred metres). As we have previously alluded to, it is not possible for us to assess whether this structure would have an acceptable visual impact in terms of the provisions of Clause 53, GWZ4 and SLO4 mindful that the structure may be seen from Victoria Road over the low lying open landscape to the south of the site even though we also appreciate that it likely to be setback some distance from that location.
8. There was some disagreement with respect to fencing changes required by conditions in the Notice of Decision but that was resolved between the Council and permit applicant at the hearing. We would prefer to limit high black mesh fencing that detracts from the landscape character.

Would the proposal be acceptable in terms of traffic impacts?

1. Traffic impacts and safety were concerns raised in the processing of the permit application by the Council but not pressed as issues by Mr Morris or Mr Walker. Mr O'Brien's evidence was that the proposal would be acceptable in traffic terms including with respect to the operation of Victoria Road. Conditions are included on the Notice of Decision to require various changes to the main access, noting dedicated turn lanes are proposed, and to parts of the internal network. We understand from Mr O'Brien's evidence that the access for the turf farm would also be acceptable mindful of its wholesale operation and the location of an existing farm gate which is proposed as the access point.
2. We find no reason to reject the proposal for traffic reasons.

Would the proposal be acceptable in terms of off-site amenity impacts?

1. The closest residential properties are to the east and south of the site. They are variously oriented toward the valley and hills, some with considerable planting around the dwelling and private open space.
2. Subject to conditions addressing matters such as hours of operation for the function centre, control over spray drift and chemical use, and noise emissions, we are satisfied that the proposed uses of the land for a golf course, function centre and turf farm would be acceptable in the context of the amenity of adjoining residents.
3. Two conditions included in the Notice of Decision refer to agreements reached with several neighbours, such as mounding and landscaping near to the Pumpa property boundary. We have taken these changes into consideration in reaching our conclusions. In considering the form of the access to be able to serve as an evacuation route, we have been mindful that changes proposed during the hearing might impact on agreements reached.
4. We find that the concept shown in the landscape masterplan is generally acceptable in terms of the relationship to abutting properties. It is, however, based on an approach whereby the road is lower than adjacent ground levels. We do not have sufficient detail about a modified internal road to make a proper assessment of its visual impact as a consequence of the required revisions for the evacuation route. The same is the case with respect to other design changes but we also note that the maintenance shed and clubhouse are setback considerably further from adjacent residences than the proposed elevated access structure.

1. There are many aspects of the proposal that are acceptable in terms of the policies and provisions we are bound to apply in assessing its planning merits. Golf course opponents have not persuaded us to reject the proposal on many grounds they argued such as inconsistency with planning policies and specific provisions that apply through the Scheme or the degree of risks to water quality ascribed to aspects of the project. However, they have persuaded us through submissions and expert evidence that:
   • More stringent permit conditions would be required than those in the Notice of Decision such as with respect to the use of biocides. With those conditions in place, and given effect, we find that there would be potential for the environmental values of the River to be enhanced compared with the existing unregulated use of the land for agricultural purposes and the lack of any riparian corridor.
   • Some important planning considerations remain insufficiently resolved, including an evacuation route during floods. An alignment for a substantial bridge and associated causeway elements tabled by the permit applicant toward the end of the hearing to address this matter is uncertain in its form and impacts. Design modifications are also necessary to address other Melbourne Water requirements.
2. Outstanding issues with respect to works within the floodplain are not minor and not without potential consequences. It is for these reasons that we have decided to set aside the Council's decision.
3. We have considered whether changes could be made by permit conditions. We are not persuaded that the potential scale and extent of the bridging structure, and modified floor levels for the car park and bunding, all focused around the part of the site that is closest to adjacent properties, should be deferred to be dealt with by permit conditions.
4. In reaching that conclusion we have given weight to the importance of the outstanding matters in terms of the policies and provisions that apply, the scale of works suggested in the sketch, and because any formal third party involvement would be prevented. We have also been mindful of other changes agreed through the hearing that mean, for example, additional EBPC approval would be required.

[1] In reaching our decision, we have considered all submissions presented by the parties, including expert evidence and all tendered documents, although we do not recite all of the contents in these reasons.

[2] This section raises questions of law and is decided by Member Code. The Presiding Member concurs with the findings.

[5] [2007] VCAT 1238.

[6] Jinalec Park Pty Ltd v Mornington Peninsula SC [2007] VCAT 1238 at [44]- [45].

[7] We find a casual observer would conclude the golf course, function centre (with 150 patrons) and cottages (12 one and two bedroom units) are of a significant scale. In Michael O'Sullivan & Associates v Mornington Peninsula SC [2007] VCAT 1937 at [91] scale was found not to be confined to a 'simple comparison between areas of land use'.

[8] Bristow v Yarra Ranges SC [2004] VCAT 1815.

[9] [2005] VSC 400.

[10] The golf clubhouse is a restricted recreation facility based on the Council's assessment. We doubt it needs to be separately characterised but nothing turns on such that alternative approach should it be adopted as the clubhouse would be regarded as part of the outdoor recreation facility which we find is associated with agriculture.

[13] 'Leisure and recreation' is defined as 'land use for leisure, recreation or sport' and includes an outdoor recreation facility (such as a golf course).

[14] Having regard to Clause 16 of the RSP, a tourist facility could include a major tourist attraction such as Healesville Sanctuary or Puffing Bill or tourist attractions such as Yarra Valley wineries or tourist destinations such as Mt Donna Buang or heritage features.

[15] The definition of function centre at Clause 74 is 'land used, by arrangement, to cater for private functions, and in which food and drink may be served. It may include entertainment and dancing'. It includes conference centre and reception centre, and therefore is not confined to functions such as birthdays, weddings, and wedding anniversaries. It could include a conference where delegates are from places some distance away.

[16] It is unnecessary for us to decide, but we also consider the golf course is associated with the 'agricultural activity' of growing turf (without having to be satisfied that growing turf needs to be a separate land use in its own right).

[17] In other words, it is unnecessary to decide whether or not the agricultural activity must be a use in its own right.

[19] Leighton Contractors v Yarra Ranges SC [2001] VCAT 280 at [79]- [80].

[20] This is distinct from 'major tourist facility' referred to in policy at Clause 21.04-2 of the Scheme which we discuss below.

[23] Appendix 1 to the statement of evidence of Mr Organ.

[24] DP Gibson dealt with the SLO4 matter in Yarra Valley Golf Pty v Yarra Ranges SC and Anor [2010] VCAT 1425.

[25] As relevant to the matters in dispute in these proceedings.

[27] Yarra Ranges Council [sic] Green Wedge Management Plan adopted 27 July 2010 [32] - [36].

[28] As demonstrated in expressions of interested tendered by the permit applicant from other operators to purchase turf wholesale.

[29] Cl 21.04 at Objective 5 Tourism in Green Wedges.

[31] Cl 21.04 under Objective 4 Tourism.

[32] We previously characterised the proposal for the purposes of Clause 16.14 of the RSP as a major recreation facility and a tourist facility. Even if we are wrong in that conclusion we have assumed the description of major tourist facility applies to the proposal for the purposes of Clause 21.04 because of the land size and size of the function centre that would cater for more than 50 visitors at one time.

[34] Croydon Developments Pty Ltd v Yarra Ranges SC [2006] VCAT 360.

[35] Yarra Ranges Council [sic] Green Wedge Management Plan adopted 27 July 2010 at page 30.

[36] Yarra Ranges Council [sic] Green Wedge Management Plan adopted 27 July 2010 at page 21.

[37] Page 2 of Melbourne Water's response to the conclave report of Mr Sutherland and Mr Wiese tendered on 18 November 2010.

[38] Pages 3 and 7 in the A3 Book of Plans as referred to by Mr Morris and Mr Walker.

[39] Eastern Golf Club Proposed Maintenance Facilities Victoria Road, Yering, Site Plan Town Planning, Project No. E10451, Sheet TP1 of 2, dated 3 September 2009, page 21 in the A3 Book of Plans tendered on the first day of the hearing.

[40] A proposed permit condition agreed between Melbourne Water, the Council and permit applicant.

[41] Flood Response Plan, 29 September 2010, at pages 8 of 29 and 9 of 29 as well as an appended plan.

[42] Page 50 of the report by CPG Australia dated October 2009.

[43] Draft by e*par dated 11 October 2010.

[44] Page 42 at paragraph 206 of Mr Glossop's statement of evidence.