Thursday 24 June 2004, Thursday 16 September to Wednesday 22 September 2004 inclusive, an inspection on Wednesday 15 September 2004, and Tuesday 23 November to Friday 26 November 2004 inclusive

[2004] VCAT 2584

It is ordered that the decision of the Responsible Authority is affirmed, and it is directed pursuant to Section 85(1)(a) of the Planning and Environment Act 1987 that a permit must not be granted.

Mr T Callander, Solicitor. Mr Callander called the following expert witnesses:

Mr A Jones, Flood Plain and Drainage Manager, for Corangamite Catchment Management Authority.

Ms S Brennan of Counsel, instructed by Arnold Bloch Leibler Solicitors, for Ms H Teichmann, Mr C Jevons and Mr J Birchall . Ms Brennan called the following expert witnesses:

1

This is an application by the Permit Applicants under Section 77 of the Planning and Environment Act 1987 for review of a decision of the Colac Otway Shire Council ("the Responsible Authority") to refuse to grant a permit.

2

These Reasons should be read with our Reasons for Directions dated Friday 9 July 2004 and Friday 24 September 2004.

3

As stated in our Reasons dated Friday 9 July 2004 we ordered, pursuant to Section 60(1) of the Victorian Civil and Administrative Tribunal Act 1998, that the Corangamite Catchment Management Authority, Ms H Teichmann, Mr C Jevons and Mr J Birchall be joined as parties.

4

As stated in our Reasons dated Friday 9 July 2004 we ordered that the permit application and the Application for Review be amended, pursuant to Section 127(1) and Clause 64(2) of Schedule 1 respectively of the Victorian Civil and Administrative Tribunal Act 1998, by substituting the names Anthony Richard James and Lee Anne James as the Applicants in both instances.

5

As stated in our Reasons dated Friday 9 July 2004 we amended the description of the proposal as contained in the permit application, pursuant to Clause 64(2), to read:

(a) Accommodation - Residential Buildings ("Anderson's Weir Eco Retreat").

6

As stated in our Reasons dated Friday 24 September 2004 we amended the permit application, pursuant to Clause 64(2), as follows:

a) Substituting in the permit application the plans provided under cover of the Rigby Cooke Lawyers letter dated 23 August 2003.

b) Substituting in the permit application Drawing Nos. SP03, SP02, E01, E02, RP01 and SLP01, which were tendered by Mr Callander on Tuesday 21 September 2004.

7

Mr Nelson presented the case for the Responsible Authority on the first day of the hearing (24 June 2004). Mr Jones presented the case for the Corangamite Catchment Management Authority on 24 June and 16 September 2004. The Tribunal and representatives for each of the parties inspected the subject land and Ms Teichmann's property on 15 September 2004. Ms Brennan presented the case for the Respondent Objectors between 16 and 20 September 2004. Mr Callander then presented the case for the Permit Applicants.

8

At the Costs Hearing on Friday 5 November 2004, Ms Brennan foreshadowed that she would be requesting to withdraw from the balance of the hearing following discussions at the recommencement of the merits hearing on a document tabled by Mr Callander "Environmentally Sustainable Initiatives proposed for Andersons Weir Eco Retreat" ("the ESD document").

9

On Tuesday 23 November 2004, Ms Brennan discussed the further expert reports from Mr Oppenheim on the ESD aspects of the proposal, which were provided to Mr Callander in advance. In our Costs Order dated Friday 12 November 2004, we stated that relevant witnesses, including Mr Oppenheim, could be recalled on the basis of the advice contained in these reports. On 23 November 2004, Mr Callander advised the Tribunal that he did not wish to take up this opportunity.

10

Ms Brennan then made a closing submission commenting on the remaining two expert witnesses to be called by Mr Callander and the draft conditions provided by the Responsible Authority, and sought leave to be excused from the balance of the hearing.

11

Mr Callander advised the Tribunal later that day that he sought to call two witnesses, Ms P Gibson-Roy of Construction Queen, who he said was the Project Manager of the proposal, and Mr Grant, the Executive Director of Geelong Otway Tourism. We considered that both witnesses would be in effect expert witnesses. We said that we were prepared to hear their evidence on the following basis:

(a) Statements of evidence being filed and served in accordance with Practice Note Planning and Environment List (No. 1) General Procedures,

(b) Other parties have the opportunity to file and serve statements in response,

(c) The matter being brought on for further hearing if any of the parties and/or the Tribunal sees fit, and

12

Mr Callander, on instructions, said that he would not call these persons, but would deal with any issues by submission.

13

Mr Nelson, in his written submission for the Responsible Authority, described the proposal as follows:

The proposal is to develop and use the site for tourist accommodation under the name of "Andersons weir Eco Retreat". The development is to comprise a double storey hotel/accommodation lodge comprising 12 double bedrooms and an associated guests lounge/dining area (although the kitchen is marked "future"), a manager's residence, swimming pool, gymnasium, spa, sauna and facilities for yoga and massage Each room will have a kitchenette. An earlier proposal to have the function room available to other than accommodation guests has now been abandoned. A liquor licence is sought only for the purposes of serving liquor with meals and to stock mini bars. The main building is to be constructed of a mix of rendered Hebel blocks and timber cladding clad in darker muted tonings. The main accommodation lodge is to be constructed on a central spur on the site to the north of Anderson Creek. A car parking area proposed to the north-west of the main building was to accommodate 30 cars but now, following deletion of the function room component, is proposed as a 20 car space area.

An additional element of the proposal is the construction of 4 two-storey two bedroom cabins to be located approximately 200 metres west of the main accommodation building each accommodating up to 4 people with bedrooms on the ground floor and kitchen/living and deck areas on the first floor. These cabins are also to be constructed of a mix of rendered Hebel blocks and timber cladding using darker muted tones. Parking for 2 cars will be accommodated adjacent to each cabin

14

Mr Nelson described the subject land as follows:

The appeal site is located on the south-west side of Tuxion Road, Apollo Bay approximately 1.6 kilometres west of the Great Ocean Road via Cawood Street. The appeal site has a frontage of 19.84 metres to Tuxion Road located at the north-east corner of the site. The site and surrounding land is undulating to steep, comprising the upper foothills of the Otway Ranges. Two watercourses traverse the site, the most southerly, Anderson Creek, flows through the site and a smaller tributary which joins Anderson Creek near the eastern boundary of the site flows from the north-west through the eastern half of the site.

The land is generally cleared save for a pine plantation located in the south-west portion of the land surrounding what is known as Andersons weir which was constructed by the then water supply authority on Anderson Creek to provide a water supply for Apollo Bay. It is understood that the use of Andersons weir as a water supply for Apollo Bay was discontinued in the 1950s. That part of the site that comprises the weir and a curtilage to the weir was owned by Apollo Bay Waterworks Trust, an early water supply authority for Apollo Bay. Its successor, Barwon Region Water Authority, sold the land comprising the weir and its curtilage to the then owner of the balance of the site in 2001.

15

The subject land is covered by the Colac Otway Planning Scheme and is in an Environmental Rural Zone which is the subject of Clause 35.02. Accommodation other than a dwelling is a Section 2 use, and this means that planning approval is required to use of the subject land for the purpose of Residential Buildings.

16

Clause 35.02-3 provides that a permit is required for buildings or works associated with a Section 2 use and for a dam.

17

The subject land is covered by Schedule 1, Otway Coastal Foothills, to Clause 44.01, Erosion Management Overlay. A permit is required to construct a building or construct or carry out works pursuant to Clause 44.01-1.

18

The subject land is also covered by Clause 44.06, Wildfire Management Overlay. A permit is required to construct a building or to construct or carry out works associated with a number of uses, including accommodation, pursuant to Clause 44.06-1.

19

Mr Nelson made reference to the following planning policies:

• Clause 15.01 Protection of Catchments, Waterways and Ground Water

•

Clause 15.07 Protection from Wildfire

•

Clause 15.08 Coastal Areas

•

Clause 15.12 Energy Efficiency

•

Clause 17.04 Tourism

•

Clause 21 Municipal Strategic Statement

•

Clause 22.01 Main Roads/Scenic Routes

•

Victorian Coastal Strategy 2002 (VCS)

1. The development is inconsistent with the Victorian Coastal Strategy.

2. Local road infrastructure is inadequately developed to accommodate the type and quantity of increased traffic consequent of (sic) the development.

3. The waste water, storm water and effluent cannot be adequately contained on site without detrimental effect on the water quality of Andersons Creek.

21

The Grounds of Application for Review were:

1 The proposal is consistent with all relevant policies objectives and decision guidelines under Colac Otway Planning Scheme.

2 The proposal is an appropriate use and development for the land.

3 The proposed development is consistent with the Victorian Coastal Strategy to the extent that the Victorian Coastal Strategy is relevant.

4 The proposal will not result in increased traffic in consequence of the development beyond the capacity of the local road infrastructure.

5 All waste water storm water and effluent can be adequately contained on site without detrimental effect on the wafer quality of Anderson Creek.

6 The proposal will enhance and have positive benefits for water quality, landscape, vegetation, flora and fauna.

7 The proposal will have positive benefits for tourism.

8 The proposal is an acceptable and preferred outcome in planning terms.

22

We consider that there are two questions to be answered in this Application for Review. They are:

(a) Do the planning policy framework and the planning controls support a development of this nature in this location?

(b) Is the proposal an appropriate design response to the subject land?

Do the planning policy framework and the planning controls support a development of this nature in this location?

23

The subject land is located some 1.6km from the township of Apollo Bay in the foothills of the Otway Ranges. It is 14.51 hectares in area, is undulating to steep, and is traversed by the Anderson Creek and a tributary of Anderson Creek. There is a weir on Anderson Creek which was formerly used for the Apollo Bay water supply. The land has been used for grazing and is cleared except for a pine plantation in the south-west corner in the vicinity of the weir. The Permit Applicants and Mr Dance, who gave expert landscape evidence for the Permit Applicants, advised that a reafforestation programme had begun on the subject land.

24

The subject land is in an Environmental Rural Zone. The purpose of the zone includes conserving and permanently maintaining flora and fauna species, soil and water quality and areas of natural scenic beauty or importance "so that the viability of natural eco-systems and the natural and historic environment is enhanced". The purpose also includes "to encourage development and use of land which is in accordance with sound management and land capability practices, and which takes into account the environmental sensitivity and the bio-diversity of the locality".

25

The fact that the subject land is in such a zone, together with the purpose of the zone and the environmental, design and siting issues included in the decision guidelines, emphasises that the site and the area have been assessed as being environmentally sensitive.

26

The subject land is covered by Schedule 1, Otway Coastal Foothills, to Clause 44.01, Erosion Management Overlay. One of the purposes of Clause 44.01 is "to protect areas prone to erosion, landslip or other land degradation processes, by minimising land disturbance and inappropriate development". The decision guidelines require consideration of, amongst others, the need to stabilise disturbed areas, the measures to manage concentrated run-off and site drainage, and whether the buildings or works are likely to cause erosion or landslip.

27

Reference is made to the Victorian Coastal Strategy 2002 ("VCS") in Clause 15.08, Coastal Areas that requires land use and development "to provide clear direction for the future sustainable use of the coast for ... recreation, conservation, tourism, commerce and similar uses in appropriate areas". This clause states decision making should be consistent with the VCS. The VCS, at page 4, broadly defines the Victorian Coast as including "land and inland waters within the coastal catchment". The subject land is clearly within the coastal catchment.

28

In the local planning policy framework, Clause 21.04-02 provides for promotion of settlements in the Otway coastal strip that recognise "a balance between opportunity for growth and retention of environmental and cultural qualities", including promoting development that is compatible with the VCS and the Otway Coastal Towns Study 1987, which is a reference document to Clause 21.04.

29

The Apollo Bay Framework Plan is at Clause 21.04-10, Apollo Bay, and clearly does not include the subject land within the residential area, nor is it included in a rural residential area. The strategy is to provide a range of residential development opportunities "to match the needs of the local community and visitors". Implementation of this strategy will be achieved by, amongst others:

•

Concentrating residential development within existing zoned areas.

•

Limiting further subdivision and development in the low-lying area between Apollo Bay and the surrounding hills.

•

Facilitating limited rural residential development only within those areas ... which are consistent with the Apollo Bay Framework Plan.

30

In regard to tourism, Clause 21.04-07 encourages tourism growth and ensuring the protection of the key environmental features that are the basis of the attraction of this area. The protection of key visual and environmental features is to be achieved by, amongst others:

•

Protecting the visual qualities of the Great Ocean Road and its adjoining coastal and rural landscapes. Consolidate tourism use and development into identified activity nodes along, or located off, the Great Ocean Road.

•

Requiring tourist developments to demonstrate compatibility with the immediate area including land capability, compatibility with surrounding uses and the provision of adequate infrastructure services.

•

Ensuring all new tourist developments adopt a high quality design approach and can demonstrate sympathy with the local environment.

31

One of the objectives of the VCS is to "manage tourism to maximise environmental, social and economic outcomes", and at paragraph 3.8.2, provides for nature based tourism developments "at suitable locations along the coast having regard to the principles for ecologically sustainable development outlined in [the VCS], and Victoria's Nature Based Tourism Directions and Opportunities for Victoria 2000".

32

The VCS at page 38 states that "the growth of existing coastal settlements presents additional challenges", and notes that land suitable for uses with specific requirements along the coastal strip is scarce and competition intense between different activities. On page 39 the VCS refers to undisturbed areas between settlements, and planned growth of coastal towns managed through the establishment of township boundaries in planning schemes, and the use of planning schemes "to avoid proliferation of development outside existing settlements".

33

The VCS at pages 42 and 43 talks about defining suitable or appropriate development on the coast. It states that "development pressure and infrastructure will be directed away from sensitive areas (most of the coast) and managed within defined existing settlements (activity nodes) and recreational nodes". The existing settlements range from coastal cities and towns to smaller coastal townships, and we find that Apollo Bay is clearly a large coastal town in the Otway region and the subject land does not form part of the town (as discussed in paragraph 29). With respect to recreational nodes, they are defined as areas that "exhibit a high-level of use and regional visitation generally for recreation and water related activity" and the VCS provides that they may be further developed while meeting sustainable development principles. We are of the opinion that the subject land does not fall within the definition of a recreational node.

34

The policy direction of both the local planning policy framework and the VCS is also found in the Landscape Setting Types for the Victorian Coast May 1998, which places the subject land in Landscape Setting 8, Great Ocean Road/Cape Patton-Elliott River to Anglesea. This landscape setting requires special consideration be given to addressing problems of inappropriate development and concentrating any development at existing nodes.

35

Ms Brennan tendered a copy of the Great Ocean Road Strategy, DSE 2004. This is not an Incorporated or Reference Document in the Planning Scheme, but we believe that it can be considered pursuant to Section 60(1)(b)(ii) of the Act. Direction 4 of this document encourages sustainable tourism and resource use. Ms Brennan submitted that reference to nature based tourism is directed to former timber communities in response to the phase out of logging in the Otways. We consider that Direction 4 of the document supports this submission.

36

We find that all levels of the planning policy framework, being State policies, the VCS, and the Municipal Strategic Statement send a consistent message - to manage inappropriate development between settlements along the coast. We are of the opinion that the subject land clearly falls in an area between settlements and, as such, development is to be avoided. We note that similar findings were made in the matter of Whitecrest Great Ocean Road Resort Pty Ltd v Colac Otway Shire Council that concerned the expansion of an existing facility at Wongarra. In their decision Judge Higgins and Ms Monk said:

We think it open to find therefore that the rural district of Wongarra falls within the category of an "area between settlements" which, under the Coastal Strategy and the Local Planning Policy Framework, are to remain largely undeveloped. This is not to say that the policy framework precludes the grant of a permit for the upgrade or expansion of an existing facility. Indeed, as noted above the MSS at Clause 21.04-02 refers to the opportunity for an exception to be made "where high quality design and minimal environmental impacts can be demonstrated" and we go on to consider this later in our reasons. However, the clear weight of policy is to avoid development between defined settlements.

37

Ian Ridgeway v Colac Otway Shire Council [2003] VCAT 1272 was an application for review of a decision of the Colac Otway Shire Council to refuse to grant a permit for three double storey dwellings at 2 Old Tuxion Road. Mr Callander sought to distinguish this decision from the proposal, which is for residential buildings and eco-tourism rather than dwellings. However, we consider that it is relevant to the Application for Review before us. In his Reasons Mr O'Leary said:

31. Where I consider this proposal fails is principally in regard to non-compliance with Clause 21.4-10 of the Local Policy and to a lesser extent the Victorian Coastal Policy. The particular area in Clause 21.4-10 referred to is the 'implementation to be achieved' section in that clause and in particular:

•

Concentrating residential development within existing zoned (sic) areas; and

•

Limiting further subdivision and development in the low lying area between Apollo Bay and the surrounding hills.

32. An examination of the Apollo Bay Framework Plan attached to Clause 21.04 clearly show the subject site outside the urban area of Apollo Bay, and a visual inspection of the site demonstrates its detachment from the urban area. It is, in reality, located along the lower reaches of the foothills. I consider therefore that the policy breach is fatal to the application. Whilst there are other policy initiatives supporting tourism activities, these should also be read in conjunction with Clause 21.04-10.

38

We agree with this decision, that the policy clearly discourages development outside the urban area of Apollo Bay and the subject land is located further up in the foothills behind Apollo Bay than the land considered by Mr O'Leary. We agree that there are other policy initiatives that support tourism activities and note that Mr Callander emphasised during the hearing the eco-tourism merits of this proposal. However, in light of the comments above and in light of the reasons outlined in the following section of our decision, we agree with Mr Nelson's closing submission.

39

Mr Nelson, for the Responsible Authority, submitted that what is proposed is a residential development with no necessary connection to the environment in which it is to be placed. He further submitted that there is no need for persons to live close to the proposed scenic walks on the subject land. The residential facility could be established within existing facilities of the Apollo Bay settlement, and the occupants already have access to the eco-tourism facilities in the region and/or what might be established on the site. He submitted that the improvements to the subject land could be made without the intrusion of the proposed accommodation facilities, the partially constructed access road and the buildings and other works that would disrupt and threaten the ecology and amenity of the area.

40

We consider that this submission by Mr Nelson is well made, and is consistent with what we have said above. It is our conclusion that the subject land is not suitable for a development of this nature.

41

Ms Brennan made reference to the decision of the Tribunal in Mitchell v Shire of Corangamite [2003] VCAT 515 (24 April 2003) (the Moonlight Head decision) as part of the evidence in chief presented by Ms Hansen, as Ms Hansen had been involved in the proposal. Mr Callander sought to rely on the decision and we note that, in their reasons, Mr Gould and Ms Fong said:

82. Further to these common elements, the Moonlight Head Eco-hotel has the potential to become a distinct and identifiable destination in its own right, especially for medium to high yield tourism markets that are not represented in the region, has the potential to lessen the amplitude of seasonal visitation to the Great Ocean Road, would likely improve the viability of existing local attractions and attract new businesses. Due to the involvement of the internationally acclaimed architect who holds the renowned Pritzker Architecture Prize, the hotel could well become a destination because of its design. (This prize was awarded recently to Joern Utzon, Architect for the Sydney Opera House).

83. Mr. Binder's evidence was that Council's planning scheme seeks to encourage the promotion of tourism related development. It, however, does not exclude tourism development in non-urban areas. Instead, it contemplates high quality tourism developments in association with the heritage and landscape values of rural areas. Although the proposal is not in a township, the strength of the proposal is that it is linked to a quiet nature-based rural environment. The attraction is its remoteness, similar to other eco-hotels which are located in remote and natural landscape environments throughout the world. During cross-examination, he also gave his view that this development would have employment benefit which would hopefully assist in the spread the economic benefits across the shire, and retain young people in nearby townships because of the availability of this substantial employment opportunity.

103. Review applicants were all concerned with the precedent of a large development in the area and that it would be difficult for Council to refuse similar types of development.

104. We have no hesitation in re-iterating the Tribunal's approach to reviewing applications: that each is considered on its merits. To us, every site is unique, subject to different influences, opportunities and constraints. Support for this proposal does not translate to compulsion to approve another. This is not to dismiss that other landholders may not try to emulate this proposal. If they are prepared to be as thorough as the current application, taking almost every aspect one can think of in terms of the environment into account, there is no reason why such application cannot be considered. That application would be subject to the same rigorous assessment by the various authorities and agencies, consultation with the community through the permit application process, and the responsible authority. It is only through such a process that a proposal can be properly tested. It is folly to suspect that either Council or VCAT is bound by a precedent to approve a development simply because one has been approved, especially if the one approved is found to be a poor example.

42

We consider that Moonlight Head development can be distinguished from the subject application for review because the Tribunal clearly said that it had "the potential to become a distinct and identifiable destination in its own right". We also note and adopt the statement that "each (proposal) is considered on its (own) merits".

Is the proposal an appropriate design response to the subject land?

43

In addition to our consideration of the policy framework, we have considered this proposal on its own merits. As stated earlier, the subject land is 14.51 hectares in area, is undulating to steep and is traversed by the Anderson Creek and a tributary of Anderson Creek.

44

Mr Hollioake, a Consultant Geotechnical Engineer, gave evidence on behalf of the Permit Applicants about the suitability of the subject land for wastewater treatment, the construction of an access road and the construction of the main residential building, car park and four individual cabins.

45

Mr McDonald, a Consultant Geotechnical Engineer, who was called as an expert witness for the Respondents/Objectors, described the subject land as "tricky" having regard to the stability of the land and wastewater management. He commented on the condition and implications of the partially constructed access track, and his comments were supported by our observations on our inspection in the company of the parties. We note that Mr Hollioake agreed that there are a number of landslip features and evidence of landslip on this site. However, he stated that the ridgeline where the main residential building is proposed is a very stable area.

46

Mr McDonald gave evidence that a high level of seepage together with a slope angle of 13o to 15o in the area of the proposed cabins leads to a probability of further slope movement within the top metre, leading to a requirement for special design of foundations, which Mr Hollioake agreed with.

47

We consider, based on the evidence and our own observations, that the area of the subject land suitable for development is the ridgeline where the main residential building is proposed. The siting of the cabins is sensitive and development in both of these areas may only occur with very careful attention to design detail.

48

It is proposed that the development provide a complete ecological and tourism experience for the guest, and this is reflected in the evidence of Mr Hunt, a Consultant Traffic Engineer who was called as an expert witness for the Applicants for Review/Permit Applicants. The evidence of Mr Hunt was that each of the guest rooms within the main building would attract one vehicle per room and each of the four cabins would attract up to two vehicles per cabin. Mr Hunt's evidence assumed that up to 60% of the guests would arrive within the peak hour on the Friday and 80% of guests would depart within the peak hour on the Sunday. There will be 12 movements in the Friday peak hour and 16 movements the Sunday peak hour, equating to 0.75 vehicle movements per accommodation units during the Friday arrival peak and one vehicle movement per accommodation unit during the Sunday departure peak. Mr Hunt's evidence was that for design purposes average daily generation rates of three vehicle movements per accommodation unit per day with peak flows outside arrival and departure periods of around 0.3 movements per unit per hour are anticipated.

49

We are of the opinion that the pine plantation and the weir on the Anderson Creek are the only existing features on the subject land that could be considered as part of this "complete ecological and tourism experience" for future guests. The majority of this experience would however be provided as part of the proposed development. In this respect, reliance is placed on the proposed reafforestation (which, despite the optimism of Mr Dance, will take some years to be really significant); the walking tracks and footbridges over the streams; and the environmentally friendly aspects of the proposal including the design of the buildings themselves, the wastewater treatment, the solar electricity and hydroelectricity, solar hot water, etc.

50

We were told that people would take lunch hampers and presumably spend much of their day traversing the walking tracks. We consider this to be fanciful, having regard to the relatively small size of the subject land. We consider it more likely that people would use the accommodation provided as a base. They may spend some time on site, but if they are also more likely to go further afield, by motor vehicle, to enjoy the coastline and the Otway Ranges hinterland.

51

We said at paragraph 47 above that we consider, based on the evidence and our own observations, the subject land is suitable for such a proposal only with very careful attention to detail.

52

The two building sites (the main building and the cabins) are the only two 'development' areas available on the subject land, and it was the submission of Mr Callander that the building site coverage was the order of only about 0.2%. This in itself highlights the difficult and sensitive nature of the subject land.

53

It was the evidence of Mr Potts, the Consultant Environmental Scientist who was called as an expert witness for the Applicants for Review/Permit Applicants, that the topography, landslip and water courses require detailed assessment, management and control.

54

It was accepted that the partially constructed access road varied significantly from the planning application plans and substituted amended plans with respect to both the horizontal and vertical alignment. It also demonstrated poor construction techniques, particularly spoil "pushed over the side", rather than using acceptable construction techniques such as benching. These issues can all be corrected, but they demonstrate a lack of care in the development of this "tricky" site.

55

It would appear that the waste disposal area would be located relatively close to the main residential building, and also close to the minimum buffer clearance from the creek. We note that Mr Potts said, in response to cross-examination by Ms Brennan, that he would have prepared the Environment Improvement Plan (EIP) differently, he would have looked at different systems and not used a worm farm, and he would have required additional soil tests to those required by Mr Hollioake. Mr Potts also said that the treatment process had been chosen not by him, but by the Applicants for Review/Permit Applicants or Construction Queen. This evidence is of concern to us, including the proximity of the waste disposal area to the main residential building.

56

We note that there were ongoing errors in the plans. Revised plans were filed and served in August, in response to our directions following Day 1, and further revised plans were provided in September to correct errors in the August plans.

57

Mr Callander tendered a document "Environmentally Sustainable Initiatives proposed for Andersons Weir Eco Retreat" (the ESD document) which seemed to be prepared largely in response to the evidence of Mr Oppenheim, the Consultant Architect called as an expert witness for the Respondents/Objectors to review the environmentally sustainable design aspects of the proposal.

58

We think it appropriate to quote from our Reasons for our Costs Order, dated Friday 12 November 2004 as follows:

13 We have come to the conclusion that costs should be awarded to the Respondents against the Applicants, for the following reasons:

(a) We made Directions dated 9 July 2004, following Day 1 of the hearing, for filing and serving of a set of the plans which form part of the proposal. This was because it was unclear on Day 1 just what plans did form part of the proposal.

(b) Revised plans were duly filed and served under cover of a letter dated 23 August 2004 from Rigby Cooke Lawyers.

(c) It became apparent on Day 3 of the hearing, ie. the second day of the resumed hearing Thursday 16 September 2004, that the August plans contained errors, which we considered were significant.

(d) Mr Callander advised the Tribunal that these matters were being addressed and that further revised plans were being prepared. It was apparent that Mr Callander was doing his best to accelerate this process. Those further revised plans were tendered on Day 5, or the fourth day of the resumed hearing, Tuesday 21 September 2004.

(e) We amended the permit application to take account of the August and September plans on Wednesday 22 September 2004. This was Day 6 of the hearing, or the fifth day of the resumed hearing.

(f) Mr Callander, shortly before we adjourned the hearing on Wednesday 22 September 2004, sought to tender a document regarding proposed Environmentally Sustainable Initiatives (the ESD document). Ms Brennan and Mr Nelson, for the Responsible Authority, opposed tendering of this document without knowing what it contained. We refused to receive it and made Directions that the parties make submissions on whether we should receive it.

(g) It also became apparent during the hearing that the internal road as partially constructed varied from the plans both with respect to the horizontal and vertical alignments. It also seems to us that the Respondents/Objectors should have a reasonable opportunity to respond to such changes, by submissions and/or evidence.

(h) It seems to us that the Applicant for Review/Permit Applicants were making changes as the hearing proceeded. Some of these changes seemed to be in response to the evidence called for the Respondents/Objectors, including after witnesses had been excused. It also seems to us that the Respondents/Objectors should have the opportunity to respond to such changes by submission and/or evidence.

(i) Mr Callander raised issues as to knowledge of grounds of the Respondents/Objectors. It is relevant however that the expert reports for the Respondents/Objectors were filed and served under cover of a letter dated 18 June 2004, well before those witnesses gave evidence.

(j) We consider that the onus is on the Applicants for Review/Permit Applicants to provide accurate and timely information, and the Respondents/Objectors cannot be blamed for not picking up errors immediately.

(k) If the Respondents/Objectors are to properly respond to matters raised during the hearing after their witnesses have been excused it is only fair that they be able to seek further advice from, and maybe recall, relevant witnesses, and that any such costs should be borne by the Applicants for Review/Permit Applicants.

59

In response to our Costs Order and associated directions, Mr Oppenheim prepared two reports, one with respect to the September plans, and one in response to the ESD document. Ms Hansen, the Consultant Planner called as an expert witness for the Respondents/Objectors, provided a letter, commenting on the September plans. Ms Brennan tendered these documents when the hearing resumed on Tuesday 23 November 2004. The two reports had previously been served on the other parties.

60

Mr Callander did not require that Mr Oppenheim be recalled for cross-examination. He spoke to an extensive written submission, in which he responded to and challenged the additional evidence of Mr Oppenheim and Ms Hansen. We consider that the appropriate way to have challenged, at least Mr Oppenheim's evidence, would have been to have exercised the opportunity that was available for cross-examination.

61

In light of the concerns we have outlined in this section of our decision, we consider that the proposal is not an appropriate design response to the subject land. Ms Brennan submitted in her closing submission:

You will be invited to have confidence that the permit applicant can responsibly and diligently manage the demands of the waste water system, do the necessary remedial earthworks, implement the various ESD techniques, prepare and construct in accordance with accurate plans. But what is the permit applicant's record in this regard? Thus far, there have been inaccurate, incomplete plans, construction of a driveway inconsistent with the four sets of plans produced to date, and an ad hoc and piecemeal approach to fixing problems and meeting the challenges to the site.

... it is submitted that the Tribunal should be extremely cautious about the grant of approval subject to conditions enabling the permit applicant to correct or resolve the myriad of outstanding issues.

62

We consider that the submission of Ms Brennan in this respect is well made. We also consider it worth repeating a comment we made in our Costs Reasons dated Friday 12 November 2004, as follows:

15 We consider that the subject proposal can be distinguished from the proposal in Golden Ridge Investments Pty Ltd. The subject proposal includes buildings, roads and car parking on a sensitive piece of land where ESD features are an integral part of the proposed Eco Resort. The proposal in Golden Ridge Investments Pty Ltd concerned a building where ESD features could be incorporated in the design, and the Tribunal in fact included an appropriate condition.

63

We clearly distinguished this proposal from the proposed development in Golden Ridge Investments Pty Ltd. We do not consider that in the subject proposal it is appropriate to require fundamental ESD features by condition.

64

In conclusion, we consider that this proposal would be clearly at odds with the purpose of the Environmental Rural Zone. It would also be at odds with the Victorian Coastal Strategy, in that it is a form of residential development outside the Apollo Bay Township. Whilst the subject land is relatively degraded it is also undisturbed. This development, if it were to proceed, would be a development of residential buildings outside the township of Apollo Bay, and we consider that this would be inappropriate.

65

We do not believe that, on this relatively small site, there is the potential for a development which would provide a total environmental experience, but that it would be a base for such an experience in the wider Otway area.

66

For the above reasons this application is disallowed. It is appropriate for a permit not to be granted, and we so order.