The decision of the Responsible Authority is set aside. A permit is granted and is to issue for works being the filling of a depression at 286 Anstruther Street, Echuca. The development is to be in accordance with the endorsed plans and subject to the following conditions:

1. Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale (1:100), fully dimensioned and three copies must be provided. The plans must show:
   1. A feature survey plan indicating the existing levels and proposed finished levels to AHD;
   2. the layout of the works, the size, depth and extent of the earthworks (fill).
2. 2. The layout of the works, the size, depth and extent of the earthworks (fill) as shown on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.
3. Prior to the development commencing, earthwork volume calculations which are to the satisfaction of the Responsible Authority in consultation with the North Central Catchment Management Authority must be submitted to and approved by the Responsible Authority. When approved, the calculations will be endorsed and will then form part of the permit. The calculations must demonstrate that volume of fill does not exceed the volume of cutting. Earthworks carried out on site must accord with those calculations. All fill must be obtained from on the subject site no new or additional fill may be added to the site.
4. No vegetation must be removed, damaged or destroyed as part of the addition of the fill to the satisfaction of the Responsible Authority.
5. All works must be undertaken in a manner that minimises soil erosion, and any exposed areas of soil must be stabilised to prevent soil erosion, to the satisfaction of the Responsible Authority.
6. Construction must follow sediment control principles outlined in 'Construction Techniques for Sediment Pollution Control' (EPA 1991).
7. No polluted and/or sediment laden run-off is to be discharged directly or indirectly into nearby watercourses including the Campaspe River.
8. The dam is to be filled in accordance with the original condition imposed by the NCCMA, being that the filled surface level will be no more than the surface level on the outer perimeter of the depression, 94.00 AHD. No further fill is to be placed on the land as part of this permit.
9. The fill, stockpiled along the northern boundary is to be used for the filling, and if needed, any other material to be used to fill the depression is to be cleaned and maintained soil.
10. The applicant is to plant 24 native trees and shrubs on the property as a net gain offset.
11. The applicant shall treat the termite nests with stillenox to mitigate the impact of termites on the trees.
12. The applicants will notify the council and the NCCMA of any proposed works or development on their property in the future.
13. The applicant will provide the NCCMA and the council with photographs of the finished works, which will be accompanied by a plan showing the finished surface levels prepared by a licensed surveyor.
14. This permit will expire if the following circumstance applies:
    • The development is not commenced within two years of the date of this permit.
    • The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Mr. Peter William Hill in person of Omega Land Systems.

1. A review of the refusal of the Campaspe Shire to issue a permit for filling of a depression or dam at 286 Anstruther Street, Echuca.

1. At the commencement of the hearing Mr. Beazley raised the issue of summonses made by Mr. Hill on three of the responsible authority's councillors to appear at this hearing so that he could question them about the process of his application through the council. Mr. Beazley requested that summons be set aside and the councillors who were present be allowed to leave the hearing. In support of his application he tabled a previous decision of the Tribunal composed of Ms. Jeanette Rickards and Mr. Laurie Hewet in Cahill v. Greater Shepparton CC [2006] VCAT 925 (25 May 2006) where the applicant in that review also summonsed three councillors of that responsible authority. The Tribunal in that matter ruled that:

The Tribunal is given power to review a decision of the responsible authority but it is not given power to review how the responsible authority arrived at its decision.

1. The Tribunal further explained that it is "To stand in the shoes of the responsible authority" and hear the application fresh.
2. That is exactly my position. As I explained to Mr. Hill, while it may be of interest for me to hear how the council arrived at its decision it would in no way assist me in determining this matter. This is a de novo matter and it is up to the parties to argue on its merits and their relationship to the policies and provisions of the planning scheme and any other relevant legislation. Therefore, the summonses to witnesses are set aside. Again, I quote from the Cahill decision:

On the basis that the evidence sought to be adduced from the witnesses is not relevant to the matters for which the Tribunal is required to consider but rather are considered to fall within what could only be termed a "fishing exercise".

1. Two of the three councillors then left the hearing.

1. This is on a large lot that has frontage to both Anstruther Street and Lord Court with a large abuttal to the Campaspe River. It has an area of approximately 0.557 hectares. There is a house on part of the land.
2. The land is part of 16 lot subdivision that is almost 20 years old. It is covered by a covenant allowing for only one dwelling per lot and cannot contain a dwelling because, since the covenant was first imposed, the larger lot was subdivided into two lots. This is the second and there is already an existing dwelling on the first.

1. This is to fill a depression in the site in order to make it more aesthetically pleasing. The site has a gentle fall towards the river. As there are three mature Red Gums within the depression, the filling will raise the level around the trunks of these species by several hundred millimetres. The filling itself will be about 670mm in the deepest part of the depression. It is noted that approximately half of this depression has already been filled.
2. The application was received in January 2007 and notice was given to abutting owners as well as the Department of Sustainability and Environment (DSE). It was referred under s.55 of the Act to the North Central Catchment Management Authority (NCCMA). The DSE was concerned that filling of the depression or dam would result in erosion and soil being built up around the mature trees, that may cause their death. It was concerned that the applicant had not addressed cl.50.09-2 of the scheme in taking care of the three step approach to protection of native vegetation.
3. The CMA was of the opinion that there is:

There is sufficient high land between the dam and the river bank to be used to raise the level of the dam so that the whole area is self draining after rainfall.

1. It stated the designated flood level of the site is 95.45 metres AHD giving a flooding depth of 1.25 metres.
2. Two objections from nearby property owners were received and these stated amongst other things that the land is a natural depression on the property subject to flooding. Vegetation will be severely affected by the fill and the area is a dam and forms part of the river flood plain.

1. The land is zoned Urban Floodway under which a permit is required to construct a building or construct and carry out works. It is also partly within a Residential 1 zone that is covered by a Land Subject to Inundation Overlay. There is a local flood plain development plan developed under cl.37.03-4 of the scheme that must be considered in the assessment of any application. The application is also affected by the relevant clauses of the state and local planning policy frameworks, the MSS and local policies. There are a number of clauses within these provisions that seek to protect flood plains from inappropriate urban expansion and ensure that remnant vegetation is adequately protected.

1. The parties at the hearing tabled their written submissions, photographs, plans and a great deal of other documentation and these are all contained in the Tribunal file. At the end of the hearing I indicated that I would grant a permit subject to conditions after having heard the submissions of the parties. I indicated that I would require the planting of vegetation in excess of the 8 trees offered by Mr. Hill and while I acknowledge Mr. Walker's submission that the net gain offsets in the guidelines put out by DSE should used, I had the feeling that these are far too excessive and have determined that a quantity of 24 trees and shrubs would be reasonable.
2. My rationale for this was based on the submission and advice of Mr. Hall, the flood plain officer, who stated that in the overall scheme of things the filling of this small depression would have absolutely no affect whatsoever on the ability of the flood plain to contain a 1% event. While I understand Mr. Walker's concerns about the health of the three trees that are contained within the depression, I also accept Mr. Hill's tabled letter from a senior biodiversity planner of DSE dated 26 September 2007 which stated:

The River Red Gum is a unique tree species because it transports oxygen absorbed by the leaf to its roots. This natural adaptation is precisely the process that allows it to survive long periods of inundation by flood water when other trees would succumb. It also makes it more tolerant of any unnatural increase in soil levels. An example of the River Red Gum's tolerance to this soil treatment is found at the small park on the north side of the Causeway, and east of the Goulburn River (Shepparton end) where the copses of trees have now survived more than 20 years after having metres of soil built up around their trunks. This gives us some confidence that the embankment trees will survive.

1. This is a small depression that has been half filled. I agree with the CMA's Mr. Hall that the filling should come from the spoil stock piled within the property and essentially no filling should be brought from outside the site. The soil must be well compacted in layers to ensure that it will not be eroded during a flood event.
2. It seems that this property has been extensively filled, up to 3 metres in the past, according to Mr. Hill. I have no reason to doubt his submission. He produced an extensive range of photographs that clearly show there are a number of large Red Gums in nature strips and on residential properties that have had extensive filling against them.
3. I have not repeated all the information put before me as I concentrated on what I believe to be the major issues. During the hearing I counselled Mr. Hill on a number of occasions about arguing the merits rather than giving me a run down on the extensive history of this matter. I understand from the file that Mr. Hill has been before other divisions of the Tribunal on various occasions over matters such as the covenant on the land. I have not referred to any of these matters in my decision.
4. If this had been a very large depression requiring deep fill then I would have had a different approach. However, this is a very small depression, the fill goes from nothing to just over 600mm at its deepest and therefore there will be no impact on the surrounds or the general flood plain capacities. Also, I am heartened by the letter from the biodiversity planner of DSE and am sure that under normal circumstances, the River Red Gums within the depression will not suffer from having some fill placed against them. Therefore, I affirm my oral advice that a permit will be granted subject to conditions.
5. I include the conditions provided by Mr. Hill in an edited form.