Figure 4 - Stormwater Outfall - Grant Lane[6]

Figure 5 - Concept Development Plan - Grant Lane[7]

1. All lots include a building envelope and effluent disposal area, as shown on Figures 6 and 7.

1. The application includes the removal of native vegetation (grasses and ground cover) in the road reserves of Boorhaman Road, Boorhaman East Road and Grant Lane for the drainage works. This equates to 0.391 hectares of native vegetation.

1. Having undertaken an inspection of the review site, the township and other townships in the municipality, and taking into consideration all the submissions and evidence, we find the key issues in this matter are:
   • Does the subdivision adequately address stormwater management?
   • Does the proposal respond to its zoning and policy context?
   • Does the subdivision respond to the character of the township?
   • Will the subdivision have adverse impacts on agricultural activity in the abutting Farming Zone ('FZ')?
   • Will the subdivision and associated works have environmental impacts?
   • Does the proposal address water supply and effluent disposal?
   • Will the subdivision cause traffic impacts in the surrounding area?
2. The primary reason we have refused this application relates to stormwater management. Based on the information before us, we find the respondent has not appropriately addressed this matter. We are not satisfied that the proposed drainage reserve has been sufficiently sized to allow for overland flows from its contributing catchments, and it is unclear which catchments the respondent proposes to direct to the detention basin. This may have a material effect on existing adjacent lots along Boorhaman Road and East Boorhaman Road during a significant rainfall event.
3. Ordinarily, this matter could be addressed in the detailed design phase. However, we do not consider that we have adequate, consistent information before us that explains this arrangement and how it will operate.
4. Council requires the existing open drain within lots 10 to 15 to be reconstructed to direct stormwater flows into the proposed detention basin.[10] This was not adequately addressed by the respondent's expert, Mr Swan, in supplementary evidence at the hearing despite several orders to do so.
5. On this basis, we find there is insufficient information or evidence to satisfy us that the required storage volume provided by contributing catchments can be adequately accommodated in the footprint nominated for the drainage reserve. We consider that alternative design options, and changes to the preliminary design of the drainage reserve and layout of the subdivision, raised by both Council and Mr Swan are beyond the scope of what is before us and cannot be adequately addressed by permit condition and in the development plans.
6. As Council has submitted,[11] an increase in stormwater storage may result in a larger drainage reserve than proposed. Should the drainage reserve be expanded to the west, existing Lot 1508 may back on to the detention basin, where currently the substituted plans indicate that lot is back-to-back with a residential lot. This would be a material change in the layout and design of the subdivision and is not what is before us. Therefore, we have decided to refuse this application on the grounds that stormwater management has not been adequately addressed.
7. Apart from stormwater management, the parties' submissions addressed the key issues listed above. We have therefore also made findings on these issues to provide clarity for the parties.
8. We agree with Council that the creation of an additional 37 residential lots in this township will be transformative, particularly given the existing size of the township and that the review site abuts farmland to the east and north. Whilst the applicants consider this fails to respond to the prevailing township character, we find it to be an acceptable response to the open, low scale rural aesthetic of the township. We will outline our reasons further in our decision below.
9. We appreciate that residential use of this land will impact the way the applicants conduct their farming practices on the adjoining land. However, the land is within a TZ that is designed to accommodate residential development. We are satisfied that the subdivision layout, road network and building/effluent envelopes, which include setbacks to the adjoining farmland, adequately consider the interface with adjoining FZ land.
10. Our detailed reasons follow.

1. In accordance with our order of 28 February 2025, we substituted plans in accordance with Practice Note - PNPE9 - Amendment of plans and applications. This included an amended Land Capability Assessment, Biodiversity Assessment, SQMS and SMP.[12]
2. We also amended the address of the review site to include the road reserves of Grant Lane, Boorhaman Road and Boorhaman East Road.[13]

1. Our order of 28 February 2025, required the respondent's hydrological engineer Mr Swan, to provide the following supplementary evidence:
   • Information indicating how the proposal, specifically stormwater on site detention, responds to climate related hazards in accordance with Clause 13.01-1S - Natural hazards and Climate Change, and Clause 15.01-3S - Subdivision Design in the Wangaratta Planning Scheme. This includes how the SQMS, prepared by North East Survey Design (Revision 7), meets the objectives, strategies and policy guidelines of these clauses.
   • Information indicating how the on-site detention basin design and volume respond to Sections 16.2 and 18.3 of Council's Infrastructure Design Manual. This includes:
     • The relevant provisions of the Australian Rainfall and Runoff - A Guide to Floor Estimation 2019, Water Sensitive Urban Design Engineering Procedures published by Melbourne Water, Urban Stormwater Best Practice Environmental Management Guidelines 2006 published by the CSIRO and where relevant, Australian Standard AS3500.3 Stormwater Drainage.
     • The 1% AEP storm event of 24-hour duration, with no outfall condition and with a maximum discharge rate to the drainage system as specified by the authority (typically 1.2 litres/second/hectare).
   • Confirmation that the required detention storage volume is based on the 1% AEP storm event, considering climate change, 24-hour duration with no outfall condition.
   • Whether the required on-site detention storage, with a suitable freeboard, has sufficient space on substituted plans to accommodate the projected volume. Volumetric calculations and cross sections can be used in support of this evidence.
2. Our orders of 28 May 2025, required Mr Swan to provide the following further supplementary evidence:
   1. Confirmation of the required detention storage volume, based on:
      1. Rainfall intensities corresponding to year 2070 climate change Shared Socio-economic Pathway SSP3-7.0.
      2. 1% AEP storm event, 24-hour duration with no outfall condition as per IDM Section 18.3.
      3. Catchments internal to and external to the subject site as generally indicated by Council's position. The external catchments being existing Lots 1558, 1548, 1544, 1542 facing Boorhaman Road and Lots 1524, 1522, 1512, 1508, 1496 facing East Boorhaman Road or part thereof, and the catchment adjacent to the proposed drainage reserve to the east. The latter catchment is shown in North East Survey Design's SQMS dated 12 December 2024 in Figure 2-1.
   2. Advice as to whether the drainage reserve has enough space, as shown on the substituted plan, to accommodate the required storage volume with a suitable freeboard, based on the general arrangement shown in the respondent's supplementary evidence 'Preliminary Design Plan' version 1 dated 21 May 2025 by North East Survey Design, including the Reduced Level ('RL') of the pedestrian access (shown at RL141.00) and side slopes measured to be 1 vertical : 6 horizontal. The Tribunal acknowledges that the proposed swale within Lots 10 to 15 is capable of detaining a relatively small storage volume.
   3. If (b) cannot be achieved, a description of what measures would be required to provide sufficient volume such that the storage with a suitable freeboard can be achieved within the drainage reserve as shown on substituted plans.
3. Parties were given the opportunity to provide supplementary submissions responding to the further advice/supplementary evidence of Mr Swan that will be outlined in our findings below.

1. Having conducted the site inspection, we requested the respondent provide a feature and level survey and earthworks (cut and fill) plan (if available). This was required in accordance with our orders of 15 May 2025 and was received on 22 May 2025.

1. The existing 20 residential lots within the township range in size from 2,400 square metres to 9,700 square metres. The respondent submits most of these were created by previous smaller subdivisions (3-5 lots), including on the periphery of the review site.

1. Properties abutting the review site are shown in Figure 8.

Figure 8- Aerial Photograph of abutting sites to the review site[15]

1. Features of the existing residential lots include larger lot sizes, generous setbacks, generally single storey dwellings, large outbuildings and open, informal gardens with minimal canopy trees.

1. The site is within the TZ that has purposes to provide for residential development and a range of commercial, industrial, and other uses in small towns and to encourage development that is responsive to the neighbourhood character of the area.[16] In accordance with Clause 32.05-5, the subdivision must meet all the objectives and standards of Clauses 56.03-5, 56.04-2 to 56.04-5, 56.05-1, 56.06-2, 56.06-4, 56.06-5, 56.06-7 and 56.06-8 to 56.09-4.
2. Specific decision guidelines for subdivision in the TZ are consideration of the Municipal Planning Strategy ('MPS'), the Planning Policy Framework ('PPF'), the pattern of subdivision and its effect on the spacing of buildings and the objectives and standards of Clause 56.
3. Particular Provisions relevant to this application include Clause 52.17 - 'Native Vegetation'. Other provisions include Clause 65.01 that contains considerations such as:
   • The orderly planning of the area.
   • Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.
   • The extent and character of native vegetation and the likelihood of its destruction. Whether native vegetation is to be or can be protected, planted or allowed to regenerate.
   • The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.
4. The provisions of Clause 65.02 relate to subdivision and require consideration of matters such as:
   • The suitability of the land for subdivision.
   • The existing use and possible future development of the land and nearby land.
   • The availability of subdivided land in the locality, and the need for the creation of further lots.
   • The effect of development on the use or development of other land which has a common means of drainage.
   • The density of the proposed development.
   • The area and dimensions of each lot in the subdivision.
   • The layout of roads having regard to their function and relationship to existing roads.
   • The staging of the subdivision.
   • If the land is not sewered and no provision has been made for the land to be sewered, the capacity of the land to treat and retain all sewage and sullage within the boundaries of each lot.
   • Whether, in relation to subdivision plans, native vegetation can be protected through subdivision and siting of open space areas.
5. The MPS, at Clause 02.03-1 (Settlement), classifies Boorhaman as a 'Rural Township' in Table 1 - Settlement Hierarchy which is described as having:

more limited development infrastructure and potential for incremental growth due to their lack of infrastructure, particularly water, drainage and reticulated sewerage.

1. Other clauses in the MPS that are relevant to our decision include:

• Clause 02.04 (Strategic Framework Plan) shows Boorhaman as a 'Settlement' and not a 'Rural Township'.
  • Clause 02.03-4 (Natural Resource Management) identified the agricultural sector a significant economic industry and social resource in the municipality. It states:

Rural uses in rural areas operate on a 'right to farm' principle, allowing existing agricultural land uses to legally operate and continue irrespective of adjoining or nearby uses. Potential amenity impacts need to be minimised between agricultural uses and rural lifestyle uses, particularly in higher agricultural productivity and versatility areas.

This clause also states that groundwater is an important environmental and economic resource.

• Clause 02.03-6 (Housing) notes under 'Rural Lifestyle' that Council seeks to manage housing in its towns by supporting the development of a diverse and affordable housing stock that meets the varying needs of the local population and directing rural residential style housing to land zoned for rural living or low-density residential around serviced townships.
• Clause 02.03-9 (Infrastructure) states that the lack of reticulated sewer and water supply systems in rural townships restricts development opportunities and can adversely affect the quality of groundwater. It says that Council is seeking to plan and deliver infrastructure that aligns subdivision and development to the capability of land to accommodate drainage and effluent and to ensure residential, rural residential and other land uses are conditional on the provision of drainage systems that are adequate to meet the needs of users.

1. Relevant policies in the PPF include:
   • Clause 11.01-1S (Settlements) contains strategies to limit urban sprawl and direct growth into existing settlements and to ensure regions and their settlements are planned in accordance with their relevant regional growth plan.
   • Clause 11.02-1S (Supply of Land) has an objective to ensure a sufficient supply of land is available for residential, commercial, retail, industrial, recreational, institutional and other community uses.
   • Clause 11.02-3S (Sequencing of Development) has an objective to manage the sequence of development in areas of growth so that services are available from early in the life of new communities.
     • Clause 15.01-3S (Subdivision) has an objective to ensure the design of subdivisions achieves attractive, safe, accessible, diverse and sustainable neighbourhoods.
   • Clause 15.01-5S (Neighbourhood character) contains an objective to recognise, support and protect neighbourhood character, cultural identity, and sense of place.
   • Clause 16.01-1S (Housing Supply) contains an objective to facilitate well-located, integrated and diverse housing that meets community needs.
2. Environmental policies in the PPF that are relevant to our decision include:
   • Clause 12.01-1L (Protection of Biodiversity) provides a strategy to site and design subdivision and development on a land capability basis to identify, protect and enhance existing native vegetation, including by avoiding its clearance.
   • Clauses 12.01-2S and 12.01-2L ('Native Vegetation Management') contain objectives to ensure that there is no net loss to biodiversity because of the removal, destruction or lopping of native vegetation.
   • Clauses 13.03 and 13.03-1 (Bushfire Planning) requires consideration of risk of bushfire in the design of subdivisions with the use of techniques such as perimeter roads.
   • Clause 13.01-1S - (Natural hazards and Climate Change) requires development to minimise the impacts of natural hazards and adapt to the impacts of climate change through risk-based planning. This is to be achieved by siting and designing developments to minimise risk to life, health, property, the natural environment and community infrastructure from natural hazards.
3. Rural policies and interface policies in the PPF that were identified by the applicants to be relevant to our decision include:
   • Clause 13.07-1S (Land Use Capability) - Whilst this clause does not apply to residential uses, it has an objective of some relevance as it has a strategy to avoid locating incompatible uses in areas that may be impacted by adverse off-site impacts from commercial, industrial and other uses.
   • Clause 14.01-1S (Protection of Agricultural Land) has an objective to protect the state's agricultural base by preserving productive farmland. It states this is to be achieved by protecting strategically important agricultural and primary production land from incompatible uses.
4. The provision of infrastructure, stormwater drainage and water supply are addressed in the following policies:
   • Clause 14.02-2L (Water Quality) includes strategies include to protect groundwater quality from effluent disposal systems and other urban and agricultural uses.
   • Clauses 19.03-2S (Infrastructure Design) and 19.03-2L - This clause contains strategies to require development infrastructure to be provided as part of any rezoning or development that would result in intensification of development. There is a policy guideline to consider the Infrastructure Design Manual (Local Government Infrastructure Design Association, 2020) or an approved precinct structure plan for new subdivision and development.

DOES THE SUBDIVISION ADEQUATELY ADDRESS STORMWATER MANAGEMENT?

1. For context, the proposed drainage arrangement is re-stated here. The proposal is comprised of a drainage reserve located in the south-east corner of the review site. It has an area of 1.59 hectares and contains a detention basin that is dry, except when it fills due to a rain event. The respondent's SQMS[17] and SMPs include the provision of a pump station at the detention basin that feeds a pressurised buried drainage outfall pipe that runs along road 3, Sandford Road, Boorhaman Road and then along Grant Lane to an existing open swale.
2. The respondent's SQMS concludes that:

This report has identified an effective Stormwater Management Strategy for the proposed development. Through the use of swale drains and a detention basin which incorporate Water Sensitive Urban Design ('WSUD'), in additional to minimal pit and pipe drainage, the stormwater generated from the proposed development site can be conveyed to the nominated point of discharge.

The stormwater management strategy for this development will not only help manage the stormwater from the new development, but will also provide drainage infrastructure and drainage relief to an area that is currently in need.[18]

1. The respondent says that his proposal adequately addresses issues associated with drainage and stormwater flows. He says the design does not increase flooding on neighbouring properties and provides for water quality treatment in accordance with best practice guidelines. He submits that the SQMS provides a clear and detailed approach to manage stormwater and the Without Prejudice Conditions ensure that there are additional design checks and requirements prior to construction of the development.
2. The respondent relies on the evidence of Mr Swan who says:
   • The SQMS and SMP provide a detailed understanding of the drainage issues at the site and demonstrates an appropriate response;
   • Council's Notice of Decision conditions provide appropriate certainty that the drainage works can be delivered in accordance with the Strategy and that there will be appropriate oversight of the design process; and
   • The development does not discharge water to other properties and will not increase flooding on neighbouring land. It is likely that there will be a reduction in flooding, particularly to land along the southern boundary of the site; and
   • The drainage system provides for water quality treatment that meets the Best Practice Environmental Management Guidelines and includes reuse arrangements consistent with EPA Guideline 1739.1
3. In response to our order dated 28 February 2025 (reproduced in paragraph 31), Mr Swan provided a supplementary expert evidence statement dated 30 April 2025 ('supplementary expert evidence'). The relevant points are summarised below:
   • The external catchment area was excluded from the calculations as the topography indicates this area will not reach the basin (it will pond in the farmland to the south).
   • Based on 2070 climate change, shared Socio-economic Pathway SSP3-7 rainfall intensities and IDM design requirements, the required detention volume is 17,690m3[19].
   • The depth of the detention basin of storage capacity 14,000m3 would be approximately 1.9 metres and would be approximately 130 metres long and 70 metres wide.[20]
   • The area set aside for the drainage reserve is sufficient to allow for the incorporation of a basin that contains the 1% AEP 24-hour flows under existing conditions and would have the capacity to retain higher volumes through deeper excavation, up to and included the expected volumes with no pump outlet at (year) 2100. The exact dimensions and volumes of the basin are a matter for detailed design once Council's expectations are understood.
4. In response to our order dated 28 May 2025 (reproduced in paragraph 32), Mr Swan provided additional advice dated 30 May 2025 ('additional advice'). The pertinent evidence includes:
   • The required detention volume remains unchanged from the supplementary expert evidence.
   • The detention storage volume does not require increasing due to the contribution of external catchments.
   • Confirmation that the drainage reserve provides sufficient area to cater for the required volume, subject to detailed design.
5. In closing, the respondent says he relies on Mr Swan's supplementary expert evidence, which is that:
   • The SQMS has been developed with appropriate consideration of the requirements at sections 16.2 and 18.3 of the Infrastructure Design Manual ('IDM');
   • The area of the drainage reserve is sufficient to support the design approach in the SQMS and allows for the construction of a basin with a volume of 14,000m3, equivalent to the 1% AEP 24-hour flood. This design approach uses a performance standard significantly greater than the existing drainage performance standard for Boorhaman or that would be required by the IDM.
   • A 14,000m3 basin provides for a basin that can cater for the 24 hour 1% AEP design flows at (year) 2070 without any adverse impacts, assuming a functional pump outlet.
   • The area in the drainage reserve is sufficient to provide for a basin with greater storage volumes, up to an including a no outlet case for any assumed 1% AEP climate change event by increasing the depth of the basin.
   • The benefit of the additional basin volume is only necessary in future climate conditions assuming pump failure. The Council NOD conditions indicate that the expectation is that the drainage system should operate in 1% AEP rainfall event to collect and convey stormwater to Grant Lane.
6. Accordingly, the respondent submits that there are no stormwater management and inundation issues to warrant the refusal of the proposal.
7. The applicants submit that the scale and intensity of the proposed subdivision means that stormwater matters must be managed in part, off-site via the proposed drainage system along Sandford Road, Boorhaman Road and Grant Lane to the Ovens River, causing adverse impacts on sensitive native vegetation, and habitat disturbance for endangered species (including removal of native vegetation). They say the proposal fails to adequately address, and/or is inconsistent with flooding policy, stormwater drainage, flow and water quality. On review of Mr Swan's supplementary expert evidence and additional advice, they conclude[21]:
   • It is clear from the feature and level survey ('preliminary cut and fill plan')[22] that the external catchment area comprises water derived not solely from the farmland to the east (i.e. Damian O'Keefe's property). This is because water from catchments to the west and south of the site is captured by the swale drains along Boorhaman Road, and Boorhaman East Road, and taken east along Boorhaman East Road to drain into the external catchment area.
   • The preliminary cut and fill plan provides new detailed information about the contours of the land along the whole of the eastern boundary of the site. It clarifies that water flows naturally from the east onto the site along the entire eastern boundary, not just in the south-east corner. This water appears not to have been accounted for in Mr Swan's assessment of water from external catchment area.
   • The proposed SMP remains insufficiently resolved and no permit should be issued.
8. Mr Heath is primarily concerned with potential inundation of his property and the land adjacent to it as a result of a significant storm event. In response to Mr Swan's additional advice, Mr Heath remains concerned as to whether the external catchments would be directed to the detention basin or not and whether this would impact flood levels on adjacent properties and the road network.
9. Council recognises that whilst the site is not encumbered by any flood related overlay or planning control, it and its immediate surrounds, have historically been subject to localised flooding in rain events. It says factors such as the flat topography, extensive catchment, rudimentary drainage infrastructure and piecemeal development over time have all contributed to denying the area of a functional drainage outfall in extreme weather events.
10. Council considers that the development is not likely to be adversely impacted by localised flooding but will act to improve the existing drainage conditions in the immediate surrounds. It submits that it has reviewed the proposed methodology for stormwater detention, treatment and drainage and considers it is appropriate, subject to detailed design.
11. On review of Mr Swan's supplementary expert evidence and additional advice, Council concludes:[23]
    • Final and accurate detention volumes cannot be ascertained based on the plans and stormwater management calculations thus far provided. An accurate calculation and determination of detention volumes requires additional plans and engineering computations to be provided. Such information is an expectation and requirement of detailed design stage. It is incumbent upon the permit applicant/holder to formulate such designs.
    • The suitability, including capacity and footprint of the basin as shown in the preliminary cut and fill plan is contingent upon several factors not least of which being the required detention storage volume (as per above). Basin design must incorporate numerous features, some of which are not provided for at this preliminary level of detail. Further detailed design and computations, including definitive understanding of the basins required detention storage volume, would be required in order to accurately provide a response to this question.
    • Should detailed design demonstrate that an increase in the basin reserve be required, it is broadly considered that expanding the extent of the drainage reserve into lot 15 would be feasible. Alternatively, additional volume could be provided by increasing the depth of the proposed basin.

1. Relevant policies that we have considered in relation to stormwater management include the following:
   • Clause 02.03-9 (Infrastructure) states that Council seeks to plan and deliver development infrastructure improvements by ensuring that residential, rural residential and other land uses are conditional on the provision of drainage systems that are adequate to meet the needs of users.
   • Clause 56.07-4 (Standard C25 - Stormwater management) requires a stormwater management system must be:
     • Designed and managed in accordance with the requirements and to the satisfaction of the relevant drainage authority.
     • Designed to meet the current best practice performance objectives for stormwater quality as contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999).
     • Designed to ensure that flows downstream of the subdivision site are restricted to pre-development levels unless increased flows are approved by the relevant drainage authority and there are no detrimental downstream impacts.
     • The design of the local drainage network should ensure stormwater is retarded to a standard required by the responsible drainage authority.
   • Clause 15.01-3S (Subdivision design) states as a strategy that:
     • Creating an urban structure that responds to climate related hazards.
2. It is common ground that the stormwater detention basin and associated infrastructure is required to be designed in accordance with Council's Infrastructure Design Manual ('IDM')[24]. Amongst other requirements, the IDM Section 18.3 requires:

Retarding (detention) basins with outfall to relevant authority drains are required to be designed for the 1% AEP storm event of 24-hour duration, with a no-outfall condition.

1. Mr Swan's evidence indicates that with a calculation compliant with these IDM requirements, including an allowance for an external catchment of size 4.95 hectares, no outfall condition, and no allowance for climate change or freeboard, a storage volume of at least 16,146m3[25] would be required. In oral evidence Mr Swan estimated the detention basin to be between 1.0 and 1.5 metres deep.
2. The Tribunal notes that the figure of 16,146m3 is stated in the SQMS for the 24-hour, 1%AEP storm, with no allowance for climate change or freeboard, but with an external catchment of 4.95 hectares and an outflow rate of 100L/s [26]. These assumptions do not fully align with the assumptions in Mr Swan's evidence. Based on these estimated figures, we are not satisfied that the detention basin depicted in the substituted plans is representative of what the site could achieve, even without climate change, no outfall and freeboard considerations.
3. On this basis, we requested further information, as detailed in our order dated 28 February 2025. On receipt of Mr Swan's supplementary expert evidence, he was recalled for re-examination. Mr Swan advised that on the basis that external catchments were excluded (contrary to his earlier evidence and the SQMS), consideration of the IDM design requirements and climate change (year 2070 climate change under SSP3-7 climate pathway are adopted), a storage volume of 17,690m3[27] would be required.
4. Mr Swan provided a conceptual sizing of the detention basin for 14,000m3 of storage which was approximately 130 metres long, 70 metres wide and 1.9 metres deep. This is larger and deeper than his original evidence and the plans substituted in this hearing and is a smaller storage volume than 17,690m3 stated above, which excluded external catchments in any event.
5. The supplementary expert evidence, whilst addressing the items contained in our order, did not fulsomely explain why the external catchments were not considered in his evidence. With specific reference to climate change, the Tribunal accepts Mr Swan's evidence on the revised rainfall intensities.
6. A preliminary cut and fill plan was then submitted by the respondent in response to our order of 15 May 2025. It shows a drainage connection (blue line) between the external catchment to the west, which includes existing easements E-1 and E-2. It also shows the swale connecting these easements grading towards the detention basin, as shown in Figure 9.
7. The clear intent of the preliminary cut and fill plan was to also drain these external areas to the detention basin.
8. We consider that this catchment, and the external catchment immediately east on the farmland, should be included in the catchment analysis, as they were (in part) in the SQMS. Further, the contours on the preliminary cut and fill plan indicate that there may be a significant external catchment immediately east of road 3 (north of the drainage reserve) that drains towards the site.
9. The Tribunal is not satisfied that our concerns have been addressed as these catchments should have been fulsomely considered in the SQMS, the expert evidence, and the subdivision design.

Figure 9- Excerpt of cut and fill plan[28]

1. Our view is also cognisant of Council's Without Prejudice Condition 27 that states:

Prior to the issue of a statement of compliance the permit holder must satisfy the Responsible Authority that:

(e) The existing open drain within lots 10 to 15 has been reconstructed to direct stormwater flows into the proposed basin

this stormwater strategy will also benefit the land surrounding the development as there is currently limited drainage infrastructure in the area. This development will work to provide an outlet for stormwater for the proposed development and existing development that has occurred over the years and will assist in addressing some of the localised drainage issues.[29]

1. Considering the above, we requested a further explanation from Mr Swan regarding his additional advice which states that there will be a reduced flood level on existing lots due to a smaller catchment inundating easements E-1 and E-2. He did not support the drainage connection, as shown on the preliminary cut and fill plan, or account for external catchments, as requested in our order. He maintains his opinion that the drainage reserve provides sufficient area to cater for the required stormwater volume generated from the development and considers that accounting for any external catchment is not necessary.
2. The Tribunal agrees with Council that external catchments should have been considered as part of the application. This was also stated in the SQMS and the arrangement shown on the preliminary cut and fill plan.
3. On review of this submission, we are not satisfied that the detention basin sizing and its associated footprint has been adequately considered. We received no submissions that indicate how a detention basin of storage volume 17,690m3 that was posited by Mr Swan, would be accommodated in the drainage reserve, or submissions addressing the additional volume resulting from freeboard or inflows from external catchments.
4. We find the proposal does not meet the intent of the SQMS, which is to provide 'drainage infrastructure and drainage relief to an area that is currently in need'.
5. We agree with Council that in detailed design, a solution satisfying the design requirements may be achievable. This may include deepening the detention basin on the existing drainage reserve, or increasing the size of the drainage reserve, or a combination of the two. However, the Tribunal has not been provided with consolidated, comprehensive and integrated documentation that gives us the confidence to conclude that a satisfactory outcome has been identified.
6. We are not satisfied that the footprint of the detention basin shown within the drainage reserve in the substituted plans can be constructed as shown. We are concerned that, after the design criteria discussed above are fulsomely addressed, whether it can be located wholly with the nominated drainage reserve. Should the drainage reserve be expanded to the west, as suggested may be necessary by Council, existing lot 1508 would then be back-to-back with the detention basin, rather than a residential lot, which is shown in the substituted plans.
7. Whatever changes that may be required may have commensurate unknown effects on abutting properties. We are not persuaded that resolution of the drainage reserve footprint is appropriate to leave to conditions.
8. We find the consequences of not adequately addressing the management of stormwater in the event of a significant flood event could adversely affect the development and/or adjacent properties. It is for these reasons that we have refused the application.

DOES THE PROPOSAL RESPOND TO ITS ZONING AND POLICY CONTEXT?

1. Our following findings respond to the other issues raised in the hearing.
2. The applicants submit Boorhaman is not a township that is expressly named as supporting population growth in the WPS. They say that given it is classified a 'Rural Township' in Clause 02.03-1, growth is expected to be incremental as it has more limited development infrastructure, such as no reticulated sewerage or potable water.
3. They argue that settlement and housing policies in the MPS state that proposals of this kind are directed to residential growth areas and Rural Living ('RLZ') or Low Density Residential ('LDRZ') zones in townships and rural townships which are serviced by infrastructure. This includes Clause 02.03-9 (Development Infrastructure) that states the lack of water supply systems in Rural Townships restricts development opportunities and can adversely affect the quality of ground water. They argue the proposal is misaligned given the lack infrastructure, such as water supply.
4. Mr Milner agrees with this proposition and considers the proposal does not constitute orderly planning. He says the proposal fails to properly account for the more than doubling of the housing population in the township with no more than hope that some facilities may follow in due course. He considers the nearly uniform layout of the lots are only sufficient for lifestyle purposes and that high value farming land abutting the review site may be affected due to off-site amenity impacts related to their farming operations.
5. Mr Milner notes that there is some confusion in the MPS as Clause 02.04 (Strategic Framework Plan) identifies Boorhaman as a 'Rural Settlement' instead of 'Rural Township'. He concludes that policy for rural settlements is therefore applicable, which includes supporting low density residential development in Rural Townships (in the 0.4 to 2 hectare size range) depending on whether reticulated sewerage is available.
6. Mr Milner considers a more responsive design would be to have fewer and more diverse lots to address the 'paucity' of infrastructure and to provide for different lifestyles, including hobby farming at the zone interface. He concludes that small, incremental, growth of larger lots on the review site would be a more appropriate given the absence of public infrastructure.
7. Council submits that the strategic directions in Clause 02.03-2 do not provide definitive support nor opposition to increased residential use of land in a Rural Township such as Boorhaman. It says the proposal is consistent with the objectives of Clause 16.01-1S (Housing Supply) as it facilitates a diversity of housing options as it will cater for a market seeking a semi-rural lifestyle on larger lots within a township.
8. The respondent submits the starting point is the TZ zoning of the land that has a key purpose to provide for residential development and other forms of urban development. He argues the applicants' arguments regarding incremental growth are at odds with the strategic vision and expectation for the development of the township. He says that is it is inevitable that land in the TZ will be redeveloped, and the policy objectives will bring significant change. He says this is encouraged and anticipated in the WPS, including adjacent to a FZ. He submits the proposal will provide new housing for the immediate term and future needs of the residents that will be delivered in stages. Mr Glossop agrees with this proposition and says the zoning effectively nominates the land to accommodate future growth of the township.
9. The respondent submits Mr Milner's evidence should be given limited weight as he has given primacy to the existing farming operations in the FZ over the strategic context of the land in a TZ. Whereas the applicants and Mr Milner gave some weight to rural residential development policies[30], he says these are not applicable as the site is not in LDRZ, RLZ or Green Wedge Zone ('GWZ').
10. The respondent relies on the evidence of Mr Glossop who considers the strategic context of the review site is to direct residential development away from 'Rural Settlements' where there is no residentially zoned land and into townships that are higher up on the settlement hierarchy, including into 'Rural Townships'.

1. Boorhaman is classified a Rural Township in Clause 02.03-1 (Settlement) which is identified as having more limited development infrastructure and potential for incremental growth due to the lack of infrastructure. This is particularly the case for this township as it does not have reticulated sewerage or potable water.
2. The parties presented varying interpretations of the strategic context and whether there is encouragement for residential development on the review site. The applicants say that it should be limited given the infrastructure constraints whereas the respondent argue it is encouraged given its zoning.
3. We agree with the applicants that the WPS does not expressly identify Boorhaman as a township which supports population growth, as compared to higher order settlements, such as Townships, that have development plans and a strategic vision and co-ordinated approach to population growth.
4. We also agree with Council that the strategic direction in the WPS does not definitively encourage or discourage population growth at this location. We note the purpose of the TZ does not encourage housing at higher densities (such as the Mixed Use Zone) but 'provides for' residential development. In this case, the zoning of the land nominates the review site is suitable for residential development and therefore can accommodate additional housing in the township.
5. There were also varying interpretations on what policies are applicable given there is some confusion in the MPS at Clause 02.04 (Strategic Framework Plan) that identifies Boorhaman as a 'Settlement' instead of 'Rural Township', as noted in Clause 02.03-1 (Strategic Directions). Mr Milner and the applicants consider this allows for consideration of a wider range of policies under 'Rural Settlements' as they say the site is in a rural area. These policies include allowing for a small amount of residential development to occur incrementally in rural areas and settlements and supporting low density development.
6. We are not persuaded by the applicants' arguments to widen the scope to include policies for Rural Settlements because Boorhaman has been specifically identified as a 'Rural Township' in Clause 02.03-1 and the site is in a TZ. This zone is designed to facilitate use of the land for dwellings, which is as-of-right in this zone. This clause also states that policies under 'Rural Settlements' are for hamlets with no residentially zoned land, which is not the case before us.
7. Mr Milner suggests that a more responsive design could be fewer lots, which could include hobby farms at the edge of the review site that abuts the FZ. We note that any agricultural use of the land would require a planning permit in a TZ which is not specifically encouraged in this zone. There are other zones, designed for this role, including the RLZ, which has a purpose to provide for residential uses in a rural environment.
8. The applicants and Mr Milner are concerned the proposal will triple the size of the township with only limited services. They say State and local housing policy seek to develop housing in well located areas, where infrastructure and services already exists, thus protecting high quality agricultural land.
9. Given the absence of services and shops (apart from the hotel), we assume existing residents of Boorhaman must travel to Wangaratta for services, shopping and education. We accept the respondent's argument that development of this land should not be stifled due to the lack of public services and infrastructure. We also consider that any future residents of the subdivision will be aware of what is provided in the township and the proximity of Wangaratta when deciding whether this is the right location for their home.
10. We note the subdivision has addressed infrastructure issues as it has been designed to provide its own water supply and wastewater system in each lot. The subdivision is also proposed to be constructed in four stages which will mean the increase in population will be staggered over time. We note that there is nothing in the WPS, such as the Precinct Structure Plan, that states development should be delayed pending the development of future infrastructure or services. As previously noted, the site is in a TZ that contemplates the review site can accommodate residential development.

1. The applicants argue that agricultural policy is aligned with residential/housing policies as it seeks to protect high quality agricultural land by limiting residential development or directing it to existing settlements in a RLZ or LDRZ. They referred to Clause 14.01-1S (Protection of agricultural land) that contains a range of strategies, such as protecting important agricultural land from incompatible uses and ensuring that any subdivision does not adversely impact on the agricultural activities carried out in the land or general area. They also cited Clause 02.03-4 that seeks to protect the viability of agriculture by maintaining productivity, protecting the primacy of rural land for agriculture and minimising potential amenity impacts between agricultural uses and rural lifestyle uses.
2. They argue the proposal is a rural lifestyle development of a scale and intensity that is too great for this area and there will be reverse amenity impacts on adjacent farming operations. They say this type of development is best directed to existing settlement or existing RLZ or LDRZ rather than a rural area where farming operates on the principle of 'right to farm'.
3. Mr Milner agrees and considers that local planning policy settings clearly give primacy to protecting agriculture activities and operations in areas of high-quality soils.
4. The respondent questioned the relevance of these policies given the TZ applies. He submits that the WPS does not afford agricultural activities primacy over development in a TZ. He says those farms adjacent, or nearby the review site, exist next to land zoned for urban development. He says that it is inappropriate to unnecessarily sterilise the review site to protect how existing farms may have operated, or currently operate, prior to urban development. Mr Glossop agrees with this proposition and considers that agricultural policies should not be applied to residentially zoned land.

1. We acknowledge that there is a raft of policies and strategies in the WPS that seek to protect productive farmland and the applicants passionately believe that the 'right to farm' on their land will be adversely affected by the proposal. We will address reverse amenity impacts of farming activities on adjoining residential land more fully in our findings below.
2. However, we note that Clause 14.01-1S also includes a strategy to limit new housing development in rural areas by directing housing growth into existing settlements. We consider this proposal fulfils this strategy as it is a subdivision of land within the existing TZ settlement, and it therefore will not reduce productive agricultural land in the FZ. Therefore, we will give some weight to the agricultural policies in the context of its location in a rural setting. However, these policies will not be given primacy over existing settlement policies that relate to the TZ.

DOES THE SUBDIVISION RESPOND TO THE CHARACTER OF THE TOWNSHIP?

What is the existing character of the township?

1. Council notes the area exhibits utilitarian traits as the township serves a wide rural community with basic infrastructure as there has been no streetscape renewal or gentrification. It says the residential area has an open style character, due to the generous setbacks between dwellings that have long range vistas of flat and open grazing and cropping land beyond the township.
2. Mr Milner considers Boorhaman is an isolated township that has attributes of a village given it has only 20 dwellings. He says this town is contained in an open flat landscape by farmland, large paddocks and the golf course. He says the 'discrete pockets of lower density residential development form an integral part of experience of the village's rural composition and character.'[31]
3. He also considers the conduct of the diverse agricultural activity on the land surrounding the town is an important part of the village's character and amenity. He notes there is a distinction between the older and new parts of the town, north and south of the main roads. He says there are smaller lots and older dwellings to the south and larger lots with newer dwellings to the north.
4. Mr Glossop observed that the pattern of development in the core of the township south of Boorhaman East Road is constrained by the triangular shape of the land between Boorhaman Road and Keat Avenue. He considers the adjoining lots to the review site have a more regular pattern.

1. Based on our site inspection, we agree with Council that the township exhibits utilitarian traits as it serves the wider rural area. The generally flat topography provides opportunities for long views over the adjoining farmland. We consider this sense of openness is displayed in the existing dwellings in the township which are on larger lots, with generous frontage and side setbacks, and open fencing. These dwellings also tend to have larger outbuildings and open and informal gardens.
2. As part of our site inspection, we also visited other townships in the municipality. We note that each have their own distinct character that is influenced by the number of existing dwellings, topography, road configuration, presence of shops and other services. Therefore, we consider Boorhaman is unique and this is factored into our findings on neighbourhood character.

Respectful or responsive to neighbourhood character

1. Prior to discussing our findings regarding neighbourhood character, we will address the changes in the wording of the purpose in the TZ that occurred due to the gazettal of VC 267 and VC 276. These amendments came into operation on the 6 March and 2 April 2025. We gave the parties the opportunity to address us on this matter in supplementary submissions.
2. The amendments introduced a suite of amendments to Clause 55 of the Planning Scheme which apply to applications for construction of two or more dwellings, and to the residential zones, including the TZ at Clause 32.05. The change relevant to this application is the amendment of the wording of the fourth purpose of the TZ from:

To encourage development that respects the neighbourhood character of the area.

To encourage development that is responsive to the neighbourhood character of the area.

1. The applicants argue that in terms of context, the terms 'be responsive to' or 'responds to' are used in multiple locations in the Planning Scheme to refer to neighbourhood character or the site. They say this includes Clause 56 which provides that the purpose of residential subdivision is to:

Achieve residential subdivision outcomes that appropriately respond to the site and its context for:

The word responsive in the zone purpose should be interpreted consistently with the use of respond in cl 56 and more broadly as those words apply to neighbourhood character and site context. They are intimately related. Indeed, the response to site context and character in cl 56 will inform the response to neighbourhood character.[32]

1. They also say Clause 56.03-5 (Standard C6- Neighbourhood Character) is relevant as it expressly states that subdivision should:
   • Respect the existing neighbourhood character or achieve a preferred neighbourhood character consistent with any relevant neighbourhood character objective, policy or statement set out in this scheme.
   • Respond to and integrate with the surrounding urban environment.
2. The applicants submit that for the proposed subdivision to demonstrate a responsive design to neighbourhood character, it must be understood and documented through Clause 56.01 and the context description process. This view is shared by Mr Milner who considers the amendment:

draws a clearer link and places enhanced certainty upon the relationship between the neighbourhood character purpose of the zone and the provisions of Clause 56.01.[33]

1. He considers it is necessary to be satisfied that the subdivision design is responsive to the identified features that inform the neighbourhood character. He is critical of the Design Response and says it is a minimal response to neighbourhood character considerations or the features of the site and context.
2. The respondent argues the change to the purpose of the zone is a deliberate one, when considering the express purpose of the amendments is the relaxing and liberalising of the response to neighbourhood character for all applications under the zone. He says the explanatory report is clear that the amendments are intending to facilitate more housing, allow greater densities, limit third party engagement and restrict broader neighbourhood policy considerations.
3. The respondent submits that 'respect' and 'responsive' require consideration of neighbourhood character but 'respect' places greater weight than having to provide a 'response to' it. This view is shared by Mr Glossop who considers:

There is a real difference in town planning terms between the words 'responsive' and 'respects', with the former meaning something that is done as a reaction to something (in a positive way) whereas respect can mean that a development must 'fit in'. In my view, greater design latitude is allowable where the zone purpose simply seeks responsive design compared to a design that is respectful.[34]

1. The respondent considers Mr Milner's interpretation of 'is responsive to' has little credibility. He says the amendment is not seeking to align the broad intent of the amendment with the provisions of Clause 56 as this is the opposite of what the amendment is seeking to achieve. He says there is no proper basis given the design response application requirements are already in those provisions. He says, 'design response' is not interchangeable with 'responsive to neighbourhood character.'
2. The respondent submits:

Whilst it is accepted that Clause 55 does not technically apply to this application for subdivision to be assessed under Clause 56, it is submitted that the changes made by Amendment VC267 and VC276 provide clear guidance from the State Government and under the Planning Scheme about what is deemed to be an acceptable residential development outcome for multiple dwellings on sites and zones such as the Township Zone and make it abundantly clear about the ambit of discretion in relation to neighbourhood character and broader policy considerations which are no longer intended to be considered in the new planning regime.[35]

1. Mr Glossop agrees and says the amendments have significantly changed the rules for infill development. Therefore, if the proposal was for development first, and then subdivision, and it was lodged after gazettal of the amendment, the dwellings could be sited in a manner that is closer to boundaries than proposed in the subdivision. He also highlighted that Council's discretion is more limited and that it cannot consider matters, such as neighbourhood character or land use compatibility, where developments meet the deemed to comply standards.

1. As this application is for subdivision in a TZ, the key assessment tool remains Clause 56. Therefore, apart from the change in the zone purpose, the amendments do not change the way we must consider this application.
2. We acknowledge that the explanatory report to the amendments does not include reasons for the change in the wording of the purpose of the zone.
3. We are not convinced that there is a direct correlation between the use of 'respond' in Clause 56 and 'responsive' in the zone purpose. However, we agree with the applicants that a response to the site context and character is required to inform the response to neighbourhood character.
4. We also acknowledge that Clause 56 is applicable, and this includes consideration of the objectives of Standard C6 which is to respond to neighbourhood character.
5. The main issue is whether there is greater design latitude as the zone purpose now seeks a responsive design instead of a respectful design response to neighbourhood character.
6. We agree with the respondent that the suite of amendments to the WPS are designed to facilitate greater housing, and this includes a reduction in the discretion to consider neighbourhood character for developments that meet the deemed to comply standards in Clause 55.
7. However, we are not considering a multi-dwelling development where Clause 55 is applicable as this proposal is for subdivision only. Therefore, the respondent's argument that a more intensive development outcome that excludes consideration of township character, would be, and could be, deemed to be acceptable, are not directly relevant to our decision.
8. Our following analysis of neighbourhood character is based on the planning scheme as it is at the time of making our decision which includes whether the proposal is responsive to the neighbourhood character of the area. Our findings are based on an assessment on whether the proposal is both respectful and responsive to neighbourhood character.

1. Council submits the creation of a 37 lot subdivision in a settlement of 20 dwellings will be transformative of this part of Boorhaman, and the township more broadly. It considers that contemporary housing will likely evolve to be consistent with the emerging character of the neighbouring lots. It submits that:

Conversely the scale of the development and number of resultant dwellings will result in significant change to the locality as a whole. Modern infrastructure and the extensive aesthetic works (street trees and landscaping) forming part of the proposal will likely contrast jarringly with existing development.[36]

1. Council says the existing neighbourhood character is not overtly defined, consistent or readily identifiable. It considers the subdivision will allow for development and growth that is not disrespectful or inconsistent with policy.
2. The respondent submits that the layout and size of the lots is influenced by the lack of reticulated sewer and water. He notes there is no overlay controls that state this site has a valued character nor any local policies that identify a preferred neighbourhood character.
3. He relies on the evidence of Mr Glossop who considers the proposal will sit comfortably within the broader context of the township and the immediately abutting residential lots are the relevant 'yardstick' to assess neighbourhood character. He acknowledges the additional dwellings will influence the character of this part of the township, but they will be located behind a row of existing dwellings facing Boorhaman Road and Boorhaman East Road. He says this:

will effectively create its own internal neighbourhood character, which is designed around the internal circular road.[37]

1. The applicants argue the proposal responds poorly to the expectations of the WPS for a responsive subdivision in terms of its layout and design. They say the area is fundamentally farming and while there is urban character emerging on the perimeter of the review site, it is not in line with the existing or intended character of the township. They say recent subdivisions/dwellings are from the same title and should not be used as benchmark for character in the township. They agree with Council that the proposal will be transformative.
2. Mr Milner agrees and submits that the intensity of the subdivision is not responsive to the existing neighbourhood character. He says the consistency of lot sizes, and a street layout, will introduce a low density 'suburban' character to the village. He also says the inclusion of curvilinear road alignments has no precedents in this township. He considers a more responsive design would be a smaller subdivision with fewer, larger lots that responds to, and has some sense of, 'infusion' to the farmland.

1. We note there is no existing or preferred neighbourhood character objectives or statements in the WPS for the township. However, we must consider strategies in Clause 15.01-3S (Subdivision Design) which are to provide for a variety of lot sizes and creating urban places with a strong sense of place that are functional and attractive. We also note that Clause 56.03-5 includes a neighbourhood character objective to respond to neighbourhood character.
2. We are not persuaded by the applicants' argument that the character of the area is fundamentally farming, and that policy requires only a small amount of incremental change on larger lots. The review site is not in the FZ but in a TZ and therefore it is reasonable to use the recent dwellings/subdivisions in the township near the review site as an appropriate 'yardstick'. These provide an indication of the type of residential development that has recently been constructed in the township with similar lot sizes and constraints, such as a lack of water and sewerage. However, our consideration is not just limited to nearby properties but considers the township as a whole and its interface with the adjoining farmland.
3. In terms of density, we acknowledge that based on pure mathematics, an additional 37 dwellings in a township that only contains 20 dwellings will be transformative. However, when considering the proposed lot sizes (4,854 - 8,955 square metres), we consider them to be comparable to the established lots nearby that range from 2,400 square metres to 9,700 square metres.
4. We are also cognisant of the fact that each lot needs to accommodate its own on-site effluent disposal field and provide potable water and dedicated firefighting static water supplies. The building envelope plans demonstrate this can be achieved whilst also providing reasonable frontage setbacks (i.e. 10 metres) to roads. We consider the lots will provide enough space for the siting of a single dwelling, shed and buffer planting along the frontage and side boundaries. This is similar to the recent development of residential lots nearby.
5. We do not share Mr Milner's concerns about the introduction of a 'low density suburban' character adjacent to farmland. Whilst the review site is at the edge of the TZ, we observed that residential development in a TZ, adjacent to a FZ, is not an unusual occurrence in other townships in the municipality.
6. We consider the subdivision will not be jarring or discordant and the layout does not need to provide a transition/infusion to the adjoining farmland, as suggested by Mr Milner. We consider the use of an internal ring road and straight roads along the north (Sandford Road) and east (road 3) boundaries acceptable as they will provide a suitable buffer to the adjoining farmland.[38]
7. This is consistent with other subdivisions that have recently been approved by Council, such as a nine lot subdivision at 36 Pryse Road Tarrawingee that has a road frontage abutting farmland. We acknowledge that this is a much smaller subdivision than the proposal before us, but it gives us an indication of what it is like to have newer subdivision adjacent to a zone boundary with a FZ.
8. Whilst we acknowledge that the curvilinear nature of proposed roads 3 and 4 do not have precedents in Boorhaman, we find that it is not inconsistent within the context of the broader existing road network and is typical of subdivisions of this size. Boorhaman Road itself has a 'dogleg' south of the review site and local roads such as Back Estcourt Road and Keat Avenue are 'off grid'. We find that the curvilinear roads are acceptable.

WILL THE SUBDIVISION HAVE ADVERSE IMPACTS ON AGRICULTURAL ACTIVITY IN THE ABUTTING FARMING ZONE?

1. The applicants argue the subdivision will compromise their ability to farm safely and effectively. They say their operations will impact new residents and lead to complaints about noise, odour, smoke or spray. They submit the impacts on their farming operations, and the reverse amenity impacts of those operations, are too great. They say the scale and intensity of the proposal is inconsistent with the policy expectations for the site.
2. They rely on the evidence of two lay witnesses[39] who are the operators of an abutting farm to the north and west and a farm on the southern edge of the township, approximately 200 metres from the review site. The witnesses explained that their families have been farming sheep, cattle, wheat, oats, canola, soybeans, maize and lucerne in Boorhaman for generations. They say this area contains high quality durable soils that are suitable for a variety of crops due to the climate and the availability of water from the deep lead aquifer that provides irrigation for parts of their farms.
3. They explained that their operations currently result in dust and odours from biosolids, manure, chemicals and smoke from stubble burn off that will impact the amenity of new residents. They also say that there will be noise from the operation of scare guns and heavy machinery throughout the day and night.
4. Both witnesses are deeply concerned the subdivision will have adverse impacts on their farming operations due to:
   • Adherence to the requirements for buffers of 60-100 metres to dwellings and waterways when spraying and spreading chemicals and biosolids. They say this will result in a loss of productive land within the buffer;
   • Dangers from more cars using the main roads in Boorhaman which will impact moving sheep from paddocks in and around the township. They say this will result in the loss of sheep and cattle dogs due to accidents;
   • Loss of sheep and lambs from domestic dog attacks;
   • Increased biosecurity risks from unauthorised people entering their land;
   • Rubbish dumping and potential theft of farm machinery;
   • A large increase in the number of residents to be notified of burn-offs and fox baiting; and
   • Potential shallow bore water conflicts about water usage for irrigation in dry periods.
5. The applicants submit that there is an expectation to avoid conflicts and adverse impacts. However, if they do arise, they need to be managed or addressed through measures, such as land use separation and siting. They consider the proposed buffers in the subdivision layout are inadequate and contrary to the expectation of the zoning and policy.
6. Mr Milner agrees and considers that local policies give primacy to protecting agricultural activities and operations rather than enabling the siting of dwellings and a density of subdivision that has the potential to compromise farming practices. He says that planning policy about dwellings in rural areas acknowledge that conflicts exist, whether the dwellings are in a rural zone or township zone.
7. He considers the appropriate approach is a site responsive design and development siting that is informed by acoustic, air quality safety, health and amenity considerations. He says this can be achieved by designing subdivisions with larger lots at the farming interface, minimising the number of direct neighbours, minimising the opportunities for public intrusion/trespass and conditioning the use of the land so that domestic animals are prohibited in proximity to livestock.
8. Council acknowledges that the northern and western interfaces with rural land potentially, and even likely, will introduce some measure of land use incompatibility and potential adverse impacts. It submits that while the review site is not in a rural zone, agricultural matters are pertinent but tempered due to the review site's direct interface with actively farmed land. It says this is a common challenge in rural localities.
9. Council considers the proposed layout is acceptable as it avoids residential lots directly abutting farmland and provides setbacks between farmland and sensitive uses through the use of perimeter roads and building envelopes in the subdivision design. It says these measures, as far as practicable, seek to establish setbacks between the farming land and future residential development to mitigate against adverse impacts. It states:

These mitigation measures are not realistically expected to be a panacea for all land use incompatibilities arising from the proposal. They are however considered to provide a reasonable outcome in the context of the site and zoning.[40]

1. The respondent submits the WPS does not include any objectives or policies that encourage the inclusion of a buffer zone directly adjacent to the FZ, such as a RLZ.[41]. He does not dispute that consideration needs to be given to the appropriateness of the subdivision as it interfaces with the FZ and the impact that existing agricultural activities may have on future residential use of the lots. He says these farms exist next to land zoned for urban development and therefore expectations in relation to impacts that may arise, and the level of change that might occur from development, needs to be tempered. He submits that residential subdivisions and housing directly adjacent to existing farms is common across Victoria.
2. The respondent submits that the evidence of the lay witnesses should be given limited, if any weight. He says they are not independent or impartial and have a vested and personal interest in opposing residential development of the review site. He also says that no independent expert evidence has been provided to confirm these assertions. He submits there already exists a broad range of separate legislative requirements that impose regulations on the use of chemical sprays and fertilizers on crops, irrespective of whether dwellings are constructed on this site or not and the control of noise and air quality. He says there are also local laws and legislation to prevent trespass on farmland, including by domestic animals.
3. The respondent submits the proposal has sought to manage interface issues by including a 20-metre-wide road reserve[42] along the north-east boundary to create a setback from the FZ. This includes street tree planting along both sides of the road. He also says the 10 lots along the north-eastern interface are generous in size (i.e. approximately 5,000 square metres) and include building envelopes that have a 10-metre front setback.
4. Mr Glossop agrees that reverse amenity impacts may come into play when there is a conflict between the amenity expectations of future residents and the operations of the adjoining farmland. He says, however, this must be contextualised as it is not unusual for land zoned TZ to abut FZ land in a rural township. He says the subdivision layout, with perimeter roads and landscaping, will create a setback to the FZ.
5. Mr Glossop notes Condition 12 (g) of the Without Prejudice Conditions requires creation of a Section 173 Agreement to acknowledge farming activities associated with the surrounding FZ and potential off-site amenity impacts. He does not support this type of condition because it leads to confusion among landowners and considers a properly designed subdivision is a preferable outcome.

1. Clause 02.03-4 (Natural resource management) recognises that non-agricultural activities have the potential to undermine the viability of the rural sector. It contains a strategy to avoid and minimise adverse impacts on rural productivity. There are also amenity policies in the WPS that have some relevance to this application given the direct interface of the TZ to the FZ. These include Clauses 13.05-1S (Noise management) and 13.06-1S (Air quality management) that contain objectives to assist the management of noise effects and air quality on sensitive land uses.
2. We acknowledge that there may be amenity impacts on future residents from activities conducted on adjacent or nearby farms as the review site abuts a FZ. As described by the lay witnesses, this may include emission of noise, dust, odour, smoke or chemical/biosolid sprays. The issue before us is whether these amenity impacts will be so unreasonable that it will result in new resident complaints which will require curtailment of farming operations (i.e. the applicants' 'right to farm').
3. As previously outlined in our findings, we disagree with Mr Milner that agricultural policies should be given primacy to protect agricultural land over the siting and density of residential development. The review site is in a TZ that contains a purpose to provide for residential development. We do not say that these amenity impacts should be disregarded but are taken into consideration with a range of other policies and objectives in the WPS.
4. We agree with the respondent that it is incumbent on the adjoining and nearby farmers to comply with a range of legislative requirements for the use of chemical sprays and fertilizers, noise and air quality near sensitive uses, such as dwellings. These require certain buffer distances and conditions to be met to prevent or minimise amenity impacts. There are also local laws regarding containment of domestic pets on properties and road rules that must be obeyed by future residents.
5. Whilst Mr Milner and the applicants want a reduction in the number of lots and increased setbacks/buffers, we are satisfied that the layout provides adequate setbacks adjacent to the farmland. This includes a 20 metre wide road reserve along the north-eastern boundary (road 3) and a 10 metre wide frontage setback to the north-eastern lots shown on the building envelope plan. The north-western boundary of the site also abuts Sandford Road and there is an 8.5 metre side setback to this boundary.
6. We have considered the layout and building setbacks in its context which includes TZ land adjacent to a FZ. Based on our site inspection of other developments in other townships, we consider that it is not an unusual occurrence in the municipality. We also consider that future residents will be aware that they are purchasing land that is adjacent or near productive farmland that could impact their residential amenity.
7. We agree with Mr Glossop that inclusion of a Section 173 Agreement advising of potential off-site amenity impacts is not the answer but a responsive layout that includes some buffers is a preferable way to deal with the issues raised by the applicants.

WILL THE SUBDIVISION AND ASSOCIATED WORKS HAVE ENVIRONMENTAL IMPACTS?

1. The applicants submit that Council's assessment against the relevant environmental and native vegetation policies fails to consider any expert assessment of the conservation values on the site and roadside vegetation and the extent of vegetation to be removed. They say Council accepted the respondent's word that there will be no impact on remnant roadside vegetation. This includes consideration of the impacts on any threatened species or habitat on the site or road reserve.
2. The applicants submit there are deficiencies in the original assessment[43] that were identified by the respondent's expert witness, Mr Mueck. These included discrepancies between conservation values of vegetation in particular areas assessed in the original assessment and the extent of native vegetation removal.
3. The applicants have concerns about the adequacy of the surveys regarding the presence of Sloane Froglet.[44] They say they have heard the frogs in the roadside drainage swale in Boorhaman Road and there are public records[45] of the species in the locality. They say the respondent's assessments have underestimated the impacts of the drainage works on roadsides along Boorhaman Road and Grant Lane from the construction/boring works and use by local farmers for farming operations.
4. Council argues that whilst vegetation and biodiversity will be impacted, complete avoidance of loss is unrealistically inhibitive of development. It submits that the proposal sufficiently demonstrates adherence to the principles of 'avoid and minimise' in the latest plans as it relocates shared paths, realigns roads, uses boring techniques and alters intersection treatments in or near areas of high value native vegetation. It says the extent and type of vegetation to be removed is not considered likely to be detrimental to amenity of the area and all losses are proposed to be offset.
5. The respondent argues the amended plans demonstrate his recognition of environmental and native vegetation policy objectives in the WPS. He relies on the evidence of Mr Mueck who has reviewed the original ecological assessment reports.
6. Mr Mueck considers the roadside reserves in Boorhaman Road and Boorhaman East Road adjacent to the site have low conservation values, as identified in the Draft Roadside Conservation Management Plan (2021).[46] He says this includes patches of native vegetation in Boorhaman East Road, Grant Lane and Sandford Road that are in poor condition. He acknowledges that there is potential habitat for some threatened flora and fauna likely to occur in the study area[47] and has ranked the likelihood of occurrence ranging from negligible to high.[48]
7. Mr Mueck conducted his own assessment of current extent of native vegetation patches[49] and concluded that his assessment of the study area is consistent with the original ecological assessment. However, he considers that the original assessment of threatened flora species should be treated with caution, as their targeted surveys were conducted at a particular time and they have omitted some species that would have been flowering prior to survey being conducted. He provided his own list[50] of plant species recorded in the study area as part of his evidence.
8. Mr Mueck reviewed the amended plans and proposed construction methods and concluded that refinement of the proposal has reduced its impact on native vegetation. This includes removal of the footpath along Boorhaman Road, relocation of the main access entry to Sandford Road, reduction in the length of footpath along Boorhaman East Road, use of directional boring and other measures to ensure there is no impact on any patches of native vegetation which qualify as a listed community in the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
9. He considers the strategic placement of any directional boring works in Grant Lane and for the proposed footpath could avoid threatened species if pre-construction threatened species surveys were conducted. He says this tool is often used to reconfigure works at particular locations.
10. When questioned about the Sloane Froglet, Mr Mueck says the existing conditions on the review site would provide poor quality habitat for any frog species and the potential inclusion of the drainage pond within the development will provide superior habitat for such species.

1. Whilst there is no native vegetation on the review site that requires a planning permit for removal in accordance with Clause 52.17, intersection treatment works at Sandford Road/Boorhaman Roads and Boorhaman Road/road 1, construction of a shared path along Boorhaman East Road and drainage works along Sandford Road, Boorhaman Road and Grant Lane require a planning permit in accordance with Clause 52.17 and the Vegetation Protection Overlay Schedule 2 ('VPO2').
2. The main issue is whether the extent of impact on the native grasses and other species in the road reserves is in accordance with the purposes of Clause 52.17 which is to avoid and minimise the removal, destruction and lopping of native vegetation. Other relevant policies in Clauses 12.01-1L and 12.01-1S (Protection of biodiversity), 12.01-2S (Native vegetation management), 52.17 (Native vegetation) and 12.01-2L (Native vegetation management) also seek to ensure that there is no net loss in biodiversity due to the removal of native vegetation.
3. We must also consider the decision guidelines at Clause 4.0 of the VPO2 that requires demonstration:

that the need for works has been reduced to the minimum extent that is reasonable and practicable given the circumstances of the proposed works.

1. We acknowledge that Mr Mueck has conducted a peer review of the original ecological reports and provided his own assessment of the native vegetation patches on the review site and road reserves. We also note some of his assessments differ from those in the original reports.
2. We acknowledge that there will be some impacts on native vegetation, but a balance is required to facilitate development of residential land within the TZ. We accept his evidence that the amended proposal has been designed to minimise the extent of impact on native vegetation.
3. We are satisfied the amended plans strike the appropriate balance provided safeguards (conditions) are in place to ensure that further pre-construction surveys of threatened species are conducted, as recommended by Mr Mueck. We note that the Without Prejudice Conditions include native vegetation offsets based on a conservative estimate of the total area of native vegetation, as calculated by Mr Mueck.
4. We also note the proposed landscaping within the review site and along the road reserves will contribute to the landscape character of the township and assist in maintaining biodiversity of the area.

DOES THE PROPOSAL ADDRESS WATER SUPPLY AND EFFLUENT DISPOSAL?

1. The applicants submit that the capacity of rainwater tanks will be inadequate which will lead to more domestic bores being sought on existing domestic/stock bore capacity in dry periods.
2. The applicants say that the mean rainfall for Boorhaman is 580mm.
3. It was agreed by all parties that the local bore water was not potable. In correspondence with Council concerning a previous planning application on the review site, Goulburn Murray Water, the relevant Water Corporation, states that it cannot guarantee the quality of bore water for any purpose.
4. Mr Milner agrees that reliance on possibly rain and bore water creates a potential for competition and conflict with agriculture to access this resource. These concerns were amplified by the lay witnesses that there will be potential for conflict between new and existing ground water users.
5. Council submits that future development will be required to be self-sufficient for the purposes of potable water which will be attained through installation of rainwater tanks. It says this will be reinforced through permit condition.
6. It says that risks associated with over-reliance on groundwater for domestic purposes can be addressed by requiring on-site rainwater tanks and a dedicated water supply for firefighting purposes as a condition of approval. Council considers that the proposal adequately addresses the objectives of clause 14.02-2S Water Quality.
7. The respondent argues that competition for water and bore water licences is not a relevant consideration and the Tribunal does not have jurisdiction to consider these matters. He says that he is not seeking bores and if future owners did, it would be subject to different legislation under the Water Act 1989 (Vic).

1. Clause 02.03-4 (Natural resource management) highlights the importance of groundwater as an important economic and environmental resource. We are aware the site is not within a declared Special Water Supply Catchment listed in Schedule 5 of the Catchment and Land Protection Act 1994 (Vic).
2. Clause 35.05-3 requires that 'each dwelling or small second dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply, with appropriate storage capacity'.
3. As previously discussed, Boorhaman does not have a reticulated potable water supply, and it is agreed by all parties that the available bore water is not potable.
4. We note the Without Prejudice Conditions include the requirement for each lot to have rainwater tanks for a dedicated potable water supply of minimum capacity 100,000 litres to independently service the requirements of the associated dwelling. We consider that this minimum capacity satisfies the 'appropriate capacity' requirements of Clause 35.05-3.
5. The Tribunal notes that similar sized tanks have been installed on Lots for a recent subdivision in Tarrawingee. The explicit minimum capacity of 100,000 litres should lessen reliance of individual lots on shallow groundwater. We acknowledge that in dry periods, potable water may need to be delivered to site to replenish these tanks.
6. We also note the Without Prejudice Conditions include a Section 173 Agreement that a rainwater tank be provided to dedicated potable water supply.

1. Council submits the Land Capability Assessment ('LCA') demonstrates the land can accommodate the effluent disposal in the subdivision in accordance with relevant guidelines.[51] It says the Without Prejudice Conditions and effluent envelopes can be enforced as part of a Section 173 Agreement to ensure future development is in accordance with the LCA.
2. The respondent submits the revised LCA was prepared based on the amended plans that includes an assessment against the current 2024 EPA guidelines. He says wastewater will be treated by an appropriately sized and located EPA certified secondary treatment system. He also says that separate permission will be required from Council under the Health Act 1958 (Vic) for the wastewater system.
3. Further advice[52] from the respondent's environmental consultants indicates that based on the feature and level survey plan, preliminary cut and fill plan which were submitted after their initial assessment, and the Without Prejudice Conditions, their initial assessment would not materially change.

1. Clause 02.03-9 (Infrastructure) recognises the availability of infrastructure is required to support growth. It says this can be achieved by:
   • Aligning subdivision and development to the capability of land to accommodate drainage and effluent.
2. Clauses 14.02-2S and 14.02-2L also contain strategies to protect groundwater quality from effluent disposal systems and other urban and agricultural uses.
3. We are satisfied the effluent envelopes provide sufficient space within each lot to accommodate a suitably sized wastewater system. We consider these systems will not present undue risk to groundwater subject to adherence to the recommendations of the LCA and inclusion of appropriate permit conditions.
4. The Tribunal notes that each lot requires Council permission in accordance with Environment Protection Regulations 2021 (Vic) under the Environment Protection Act 2017 (Vic).

WILL THE LAYOUT OF THE SUBDIVISION CAUSE TRAFFIC IMPACTS IN THE SURROUNDING AREA?

1. The applicants submit that the proposed subdivision will result in increased traffic on roads which will have implications for movement of sheep for the farmers. The lay witnesses are concerned that there will be a major impact to livestock and working dog safety crossing and being moved along roads Boorhaman Road and Boorhaman East Road, particularly during shearing, lamb marking and crutching times. This also applies to Finnen Road and Back Estcourt Road.
2. They also say their farming operations will be impacted by increased traffic movements in the township given the large size of farm machinery using these roads. They consider current speed limits of between 80-100 kilometres per hour on abutting roads will exacerbate these problems.
3. Mr Milner acknowledges their concerns and says the proposal will significantly increase private vehicle trips because residents will need to drive approximately 20 kilometres (to Wangaratta) to access services, facilities and to meet their weekly needs.
4. Council considers the existing external roads are capable of safely accommodating any additional traffic movements from the proposal. They advised that the most recent traffic counts data for Boorhaman Road, a sub-arterial road, indicated that there is an average of 327 vehicle movements per day (in both directions), which included 17 heavy vehicles. It forecasts future movement of approximately 770 vehicles per day after completion of the subdivision.
5. Council also advised that the internal road network is sufficient to service the number of lots and future traffic generation.[53] It is, however, concerned about the provision of a one-way exit onto Boorhaman Road. It says this intersection layout is not supported and that alternative options could provide for a safer and overall improved outcome.
6. The respondent argues that the existing road network has sufficient capacity to accommodate the increase traffic generated by the proposed subdivision.

1. Based on Council's prediction of 770 vehicle movements per day, we are satisfied the existing road network has the capacity to accommodate the increased vehicle movements, post subdivision. This view is based on the most recent traffic counts data provided by Council and is informed by the indicative traffic volumes provided in clause 56.06.
2. We acknowledge that the proposal is likely to increase conflicts between vehicles and farming operations. Whilst understanding the farmers' concerns about the potential for traffic accidents, it should be acknowledged that the road network is primarily designed to accommodate all road users. Both new residents and nearby farmers will have to adjust their road use behaviour and farming practices respectively to accommodate the needs of each other given this rural setting.
3. We note that guidance on the use of roads for stock crossings is provided by the Department of Transport and Planning Manual for Traffic Control at Stock Crossings (June 2015).
4. In terms of the road layout of the subdivision, we consider that further details of the road and intersections need be submitted to Council for consideration in detailed design. This is normally dealt with by permit condition.

1. Clause 56 requires consideration of a range of objectives and standards that have regard to lot design, urban landscape, access and mobility management, site management and utilities.
2. We have not provided in-depth findings against Clause 56, except for Standard C6 (Neighbourhood character). We have reviewed Mr Glossop's assessment and consider the proposal responds positively to the relevant objectives and standards of Clause 56.

1. Council has included a condition for a monetary contribution to public open space. It says this is required given the absence of a strategic plan requiring open space in township.
2. We note that the respondent has not contested this condition, and the applicants did not raise it in their grounds of review.

1. The review site contains two drainage easements (E-1 and E-2) along the south-western boundary and south-eastern boundary respectively. They follow the existing land contours and are designed to provide flood storage and protect surface level infrastructure. These easements will be affected by the proposed subdivision.
2. Clause 52.02 (Easements and reserves) contains a decision guideline to consider the interests of affected people.
3. Council submits that there will be a need to alter/remove these easements in response to this subdivision.
4. Our findings above relating to stormwater management address the implications to these easements.

1. Clause 71.02-3 - Integrated Decision Making of the Planning Scheme, requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development. It is central in reaching a conclusion. We note that planning does not seek ideal outcomes, or outcomes which respond positively to every relevant policy. Rather, acceptable outcomes are the measure by which planning decisions are to be made.
2. The main issue is stormwater management. Throughout the proceedings we requested further information and evidence from the respondent's expert to demonstrate which catchments have been considered and preliminary calculations that support the size and volume of the detention basin shown on the substituted plans.
3. We are not satisfied that the proposed drainage detention basin, and by extension the drainage reserve, have been sufficiently sized to allow for all contributing catchments to the design scenario required by Council. It is not clear whether, after a more detailed analysis, there will be a material effect on existing adjacent landowners. We consider this is a significant issue and that it is not appropriate to address via permit conditions.
4. In relation to the other issues, we have considered whether the proposal will produce an acceptable outcome having regard to the relevant purposes, objectives and policies in the WPS. Whilst we agree the proposal will be transformative, the land is within a TZ that is designed to accommodate residential development. We acknowledge the site is located at an interface with farmland but are satisfied the layout and setbacks will provide an acceptable buffer to this land use.
5. For the reasons given above, the decision of the responsible authority is set aside. No permit is granted.

[2] Townships visited included Peechelba, Tarrawingee, Everton, Whorouly, Milawa and Oxley.

[3] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[5] Concept Development Plan, Project M7526 Version 6.

[8] Envelopes Plan, Project M7526 Version 1.

[10] Condition 27 (e) of the Without Prejudice Conditions.

[11] Council submission response to VCAT order dated 28 May 2025.

[12] Refer to [20]-[24] of order of 28 February 2025 for full description of changes to application plans.

[16] VC267 amended the purpose of the TZ from encouraging development that 'respects' neighbourhood character to 'is responsive to' neighbourhood character of the area. Submissions were received from the parties to this amendment that will be discussed in our findings regarding neighbourhood character.

[17] North East Survey Design, Stormwater Quality Management Strategy, Revision 7, dated 12 December 2024.

[19] Supplementary expert evidence statement dated 30 April 2025, Table 2.

[20] Supplementary expert evidence statement dated 30 April 2025, page 10.

[21] Further submission on behalf of Damian O'Keefe and Ors, pages 2 through 4.

[22] Preliminary Design Plan Version 1 dated 21 May 2025.

[23] Council submission in response to Item 4 of VCAT order of 28 May 2025, pages 1 and 2.

[24] The policy guideline for Clause 19.03-2L states consideration, as relevant, the Infrastructure Design Manual (Local Government Infrastructure Design Association, 2020). It is also a policy document for this clause.

[26] SQMS Figure 4-2 Storm duration 1440 min (24 hours).

[27] Mr Swan supplementary expert evidence Table 2.

[28] Preliminary Design Plan, M7526, Version 1, dated 21 May 2025.

[30] Including reference to Rural Residential Development Practice Note 37.

[31] Supplementary evidence of Rob Milner, [30].

[32] Applicants' further submissions, [38].

[33] Milner Planning Advisory Supplementary Expert Planning Evidence, [16].

[34] Glossop Town Planning Addendum Town Planning Evidence Statement, [26].

[35] Respondent further submissions, [32].

[37] Glossop Town Planning Evidence Statement, [69].

[38] We will discuss the amenity implications of the road buffer in our findings below.

[39] Mr Brendon O'Keefe and Mr Damien and Mrs Meagan O'Keefe are the applicants.

[41] Mr Milner provided evidence that Amendment 007 in 2002 rezoned the land abutting the review site from RLZ to FZ. This amendment did not include any change to the boundaries of the TZ.

[43] Ecolink Consulting - Biodiversity Assessment, Boorhaman East Road, Boorhaman Road, Victoria (July 2024 and December 2024).

[44] Sloanes Froglet is classified as endangered under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and Flora and Fauna Guarantee Act 1988 (Vic).

[45] Victorian Biodiversity Atlas, Victorian Government, 13 February 2025.

[46] Written by Rural city of Wangaratta.

[47] Appendix 4 of Mr Mueck's evidence provides a tabular list of flora species recorded or otherwise within 5 kilometres of the subject land sourced from the Australian Government Protected Matters Search Tool or Victorian Biodiversity Atlas.

[49] Mr Mueck is registered with the Department of Energy, Environment and Climate Change (DEECA) as an accredited assessor for Victoria.

[51] EPA Guideline for Onsite Wastewater Management 2024.

[52] Whitehead & Associates letter dated 23 May 2025.

[53] Council notes the LDRZ-R class roads (as defined in Section 12.4 of the Local Government Infrastructure Design Manual) are designed to accommodate 1000 vehicles per day ('vpd') whereas it is anticipated the subdivision will generate 370 vpd. It says the new internal roads will be constructed to a standard far exceeding the anticipated usage.