Victorian Civil and Administrative Tribunal|2025-10-15

The applicant submits that the previous dam wall failure sustained damage to their property due to silt, rocks, debris and the sediment build up at the interface of the properties.
We make no findings regarding the alleged dam damage, as:
1. erosion is outside of out scope of review, consistent with the decision of Myers.
2. The Water Act 1989 (Vic) appropriately seeks to conserve, manage and promote the equitable use of water resources, protect waterway environmental qualities, and water resource management. It has a legal framework for water rights and entitlements, ensuring responsible water service delivery.
3. it has not been demonstrated to us that there is a direct connection between the proposed subdivision and the dam damage.
Our site inspection allowed us to observe the topography of the land and the precarious slope at the interface of the property owned by the applicant and the subject site, particularly on the western side. The proposal makes no changes to the land conditions nor changes the use of the land.

Capability of the existing land to allow an additional dwelling

Finally, we find the approach of the council in justifying this application on the basis that it would avoid a new dwelling on the existing smaller lot to be flawed, and therefore one which does not lend support to the proposed subdivision. This is because neither of the two assumptions that the council proceeded upon, are certainties. One is outside the control of the council. The other is a discretionary process and the outcome of which is generally, but conditionally, discouraged based on the policies within the planning scheme.

Will the subdivision impact economic viability?

The applicant submitted that the proposed subdivision will create lots that will make agricultural pursuits on the subsequent lots unviable in terms of profitability, based on the likely types of agricultural production that could occur on this land, having regard to its agricultural qualities.
Mr Suckling's evidence was that the viability depends on what type of agricultural pursuit is proposed on the land, and that at present, the size of the land would be unviable for grazing.
Little detail was put to us as to how the subdivision would impact viability one way or the other. Therefore, this issue has not been of any material consequence to our decision.

For the reasons given above, the decision of the responsible authority is set aside. No permit is granted.

[1] All appearances were via an online platform.

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Hillbrick v Baw Baw SC [2025] VCAT 907 (15 October 2025)

Hillbrick v Baw Baw SC [2025] VCAT 907