1. The decision of the responsible authority in relation to permit application no. 09-175 is set aside.
2. A permit is granted in relation to land at Lot 1 PS329324 Adams Road, Wangandary. The permit will allow use and development of a dwelling generally in accordance with the endorsed plans and subject to the conditions contained in Appendix 1 to these reason.

Mr R Watters, Barrister instructed by Jeff Francis Business & Property Law

Application under Section 77 of the Planning and Environment Act 1987

Significant Landscape Overlay (Schedule 1 - Warby Ranges) (cl.42.03)

Clause 35.07-4 (construct a building and carry out works)

Clause 42.03-2 (construct a building and carry out works )

Clause 44.06-1 (construct a building and carry out works)

The subject land has a total area of 25.53ha. It is irregular in shape and has a frontage to Adams Road. It contains 3 dams and 3 sheds. The land is located approximately 10km north west of Wangaratta and abuts the Warby Ranges zoned Public Conservation and Resource. All but two surrounding lots in the Farming zone have existing dwellings.

An inspection was conducted with the parties on 23 June 2010.

Gippsland Coastal Board v South Gippsland SC & Ors (No 2) (Red Dot) [2008] VCAT 1545; Masten Bennett & Associates v Nillumbik SC [2010] VCAT 900 (21 May 2010); Hocking v Northern Grampians SC [2006] VCAT 318; Civentech v Shire of Indigo [1999] VCAT 427; Sargeant v Corangamite SC [2005] VCAT 264 (16 February 2005)

1. This is an application for review of the decision of the Responsible Authority to refuse to grant a permit for the use and development of a dwelling on the subject land.
2. The applicant proposes to construct a four bedroom dwelling in a cleared area of the land approximately 300m from the entry point to the land on Adams Road. Three existing sheds are located on the land as well as three dams. A 100,000 litre water tank is to be installed to collect run off from the roof of the dwelling. Apart from the cleared area of the land where the dwelling is to be located, the remainder of the land consists of open woodland similar to what exists on adjoining land in the Warby Ranges which is contained in the Public Conservation and Resource zone.
3. The applicant proposes to upgrade the driveway on the subject land to a width of 4m and 15 tonne capacity with passing bays every 200m and a turning circle adjacent to the dwelling and water tank.
4. The subject land is located approximately 10km from Wangaratta. The main access to the land is via Adams Road (Adams Track), a rural access road. This is a gravel road maintained by the Council for a distance of 1.1km from the intersection of Gerrett Road, to approximately 385m short of the access to the subject land.
5. The whole of Adams Road has a gravel surface but the section of Adams Road from where it is not maintained by the Council is described as being approximately 4m in width, with limited passing opportunities due to the remnant native vegetation along the roadside. Adams Road continues through the Warby Ranges past the subject land and is described as a winding track with several crests. At a distance past the subject land it intersects with the Devenish Wangaratta Road.
6. The Responsible Authority in refusing to grant a permit submits the use of the land for a dwelling is contrary to the objectives of the State and local policy framework and the Farming zone and will increase the risk to life and property from wildfire events. The Responsible Authority highlighted that its concerns related not simply to access to the dwelling within the subject land but to access to the subject land from the road network.
7. The Tribunal considers the following issues are required to be address:
   • Whether the proposal is inconsistent with the provisions of the Farming zone and the policies in clause 17.05, 21.05 and 22.01 of the planning scheme;
   • Whether the proposal is inconsistent with the objectives of the Wildfire Management Overlay and the policy in clause 15.07 in the planning scheme; and
   • Whether appropriate access can be provided to the dwelling pursuant to clause 35.07-2;

Whether the proposal is inconsistent with the provisions of the Farming zone and the policies in clause 17.05, 21.05 and 22.01 of the planning scheme;

1. One of the purposes of the Farming zone is to 'ensure that non-agricultural uses, particularly dwellings, do not adversely affect the use of land for agriculture'. The policy contained in clause 17.05 also seeks to ensure that the 'State's agricultural base is protected from the unplanned loss of productive agricultural land due to permanent changes of land use'.
2. The land is identified as being of moderate agricultural versatility in the reference document under clause 21.05 "An assessment of the Versatility of Agricultural Land in the Rural City of Wangaratta, April 2000".
3. The applicant submits the land is not appropriate for the conducting of agricultural activities and instead wishes to use the land for a rural lifestyle. The Responsible Authority acknowledges the land is not being used at present for agricultural purposes and has limited agricultural potential.
4. The land was part of a larger piece of land and was subdivided from the main property in 1993. The remainder of the property which abuts the subject land to the north contains a dwelling, is used for some grazing and contains an orchard.
5. Given the recognised moderate agricultural versatility of the land, and with a large amount of the land comprising open woodland of remnant native vegetation it is unlikely that the land could be used for any viable agricultural activities.
6. The Responsible Authority expressed concern regarding the use of the land for rural lifestyle purposes submitting it would have the potential to create future land use conflicts between surrounding agricultural uses and the aspirations and expectations of rural lifestyle practices.
7. Whilst clauses 21.05 and 22.01 both highlight that there is a need to recognise there may be amenity impacts between rural activities/agricultural production and dwellings in rural areas in the context of this application I consider it is unlikely to arise.
8. The land is in a small pocket of the Farming zone surrounded on three sides by the Public Conservation and Resource zone. The abutting property within the Farming zone is a small lot as are the other nearby lots within the zone. The area appears to already be in many respects used for rural living. There is very limited agricultural activity occurring in the area and any such activity appears to be limited to some grazing and some orchards. It is not expected that any conflict will arise relating to the nearby agricultural use of land.
9. Whilst the application is inconsistent with the policy contained in clause 21.05, to use land for agricultural purpose with dwellings to be linked to such use, it is difficult to give this policy great weight in the context of the condition of the land as being of moderate agricultural versatility and to a large extent covered in remnant native vegetation. It is not expected that this should be cleared to allow for the land to be used for an agricultural activity.
10. Given also the use of the nearby properties the proposed dwelling will not have any impact on the objectives of the policies contained within clause 22.01 to ensure that dwellings do not undermine or have an adverse impact on agricultural activities in the area.

Whether the proposal is inconsistent with the objectives of the Wildfire Management Overlay and the policy in clause 15.07 in the planning scheme

1. The Wildfire Management Overlay (WMO) applies to the land. The purpose of the WMO is:

To identify areas where the intensity of wildfire is significant and likely to pose a threat to life and property.

To ensure that development which is likely to increase the number of people in the overlay area:

• Satisfies the specified fire protection objectives.
• Does not significantly increase the threat to like and surrounding property from wildfire.

To detail the minimum fire protection outcomes that will assist to protect life and property from the threat of wildfire.

1. The policy contained in clause 15.07 relates to 'Protection from Wildfire' and encourages Responsible Authorities to consider in planning decisions affecting wildfire risk environments, fire hazards, to avoid intensifying the risk through inappropriately located or designed uses or developments.
2. An application to construct a building or carry out works within the overlay 'must be accompanied by a statement which demonstrates that all fire protection requirements for water supply, access, buildings and works, vegetation and any other relevant matter have been considered and incorporated'.
3. The applicant provided a WMO declaration form that indicated the predominant vegetation within 100 metres of the proposed dwelling is category 2 vegetation (shrub and heath and medium forest). The applicant also provided a Wildfire Development Plan.
4. The permit application was referred to the Country Fire Authority (CFA) who provided consent to the grant of a permit provided the recommended CFA conditions were incorporated on a permit. Such conditions relate to water supply, access, vegetation management and buildings and works requirements. It also includes the requirement that the Wildfire Management Plan, submitted by the applicant, be endorsed as part of the permit.
5. It was acknowledged that the Wildfire Development Plan meets the requirements of the WMO. The Responsible Authority however submitted, allowing the development and use of a dwelling on the land would increase the risk to life and property from wildfire events, and referred in particular to one of the purposes of the overlay.
6. The Responsible Authority referred to the bushfire tragedies and the Royal Commission findings which had not been completed at the time of hearing but have since been finalised[2]. The Responsible Authority submitted as the policy context in which development within WMO's should be considered remains uncertain the Tribunal should proceed with caution when considering the application. This was equated in similar terms to the application of the precautionary principle relating to development in coastal areas[3].
7. The Royal Commission in its final report identified that there are deficiencies in the mapping of bushfire risk, including that low, medium and high levels of risk should be identified. The recommendations included that people should be discouraged from settling in high risk area and from living in areas where it is not possible to have the minimum defendable space without the excessive costs for biodiversity.
8. I am not aware as to whether this particular area is known to pose an unacceptably high bushfire risk but accept that it is in an area prone to bushfire risk. The Responsible Authority was satisfied with the design of the dwelling, the ability of the applicant to provide a required water supply and that the access from the front boundary of the property to the dwelling could be appropriately designed to accord with the requirements of the CFA and the objectives in the WMO. In this respect it appears that the authorities consider that there is a defendable space that can be created and maintained around the dwelling.
9. The Tribunal in a recent decision Masten Bennett & Associates v Nillumbik SC [4] in considering an application for a 16 lot subdivision at St Andrews on land that had been partially burnt in the February 2009 bushfires stated:

The position that a permit should not be granted for any form of subdivision because of the potential for risk associated with wildfire is an extreme one to take. We accept that the site is in an area where there is risk, however, what we are required to do under the provisions of the WNMO, is to assess the risk and to make a judgment call as to whether it is acceptable. The WMO requires that the matter be referred to the CFA and its views considered. Further, it is relevant that under the WMO, the proposal is not prohibited. There is discretion to be exercised as to whether a permit should be granted.

1. What however was of particular concern to the Responsible Authority and which has lead to the refusal is that they do not consider the access along Adams Road is appropriate. In this respect they submitted under the WMO access considerations included access to the property from outside the property boundaries. It was also submitted that it was inappropriate to introduce an additional dwelling and people into an area of significant wildfire risk where minimum safety objectives and outcomes have not been met because the external access to the property does not meet the standard for access by emergency vehicles.
2. Apart from this particular issue, which is addressed below, I am unable to conclude that the use and development of a dwelling in this location is inconsistent with the WMO. In relation to the availability of water for the landowners and emergency services there are three dams on the property and it is proposed to install a tank which is of adequate size. Such water can readily be accessed by emergency services. The applicant proposes on the subject land an appropriate 4m wide driveway with a 15 tonne capacity with passing bays every 200m which provides direct access for emergency vehicles. The dwelling is to be sited in a cleared area of land with minimal trees in close proximity and there was no indication that the applicant would be unable to comply with the requirements of the CFA regarding the management of vegetation within 10 metres of the dwelling as well as in outer zones.

Whether appropriate access can be provided to the dwelling pursuant to clause 35.07-2

1. Both the WMO and the Farming zone provisions require that access to the dwelling must be via an all-weather road with dimensions adequate to accommodate emergency vehicles. Such requirements relate to such access appropriately being provided on the subject land. The WMO also refers to 'appropriate access to, and surrounding, the property and the water supply must be provided to allow emergency and other vehicles to traverse with ease and safety'. This therefore enlivens a consideration as to whether there is appropriate external access to the subject land. Nowhere in the provisions does it refer to a requirement regarding the quality of access on a public roadway.
2. Both parties recognised that the 385m section of Adams Road from where the Council maintained section finishes to the entrance to the applicant's property is narrow and provides for limited passing due to the roadside vegetation. At the time of inspection it was in reasonable condition due to relatively dry weather although I expect with some rain it would have several potholes. I however do no believe the roadway would be impassable, although a four wheel drive vehicle may be necessary in some circumstances. It is noted that the CFA did not indicate there was a need to upgrade the road to ensure its vehicles could gain access to the property although I understand that the main focus of the CFA is usually on the appropriate access being provided within a property rather than the condition of the public road.
3. I observed and was advised that the Council only maintained Adams Road from its intersection with Gerrett Road to just past the entrance to 108 Adams Road which is the adjoining property. A dwelling is located on this property.
4. My observation is that Adams Road is a public road that is required to be maintained by the Council. It appears the Council only maintains the road to a particular level to the entrance to the last dwelling and it is understandable that if there are no more dwellings then it may not be necessary for the Council to maintain the road from that point on to the level it is maintained from Gerrett Road.
5. I do not equate the context of this application with that referred to in Hocking v Northern Grampians SC [5] in that matter access to the land was via a track through the national park which was narrow, rough and sandy and could only be traversed by a four wheel drive in certain sections. The road way to the subject land is well maintained and used by nearby dwellings there is only a 385m section that may not be up to the standard of the remainder of the maintained section. Nor can Adams Road be equated to a forestry track as in Civentech v Shire of Indigo[6].
6. In both of the above cases either Parks Victoria or the Department of Natural Resources and Environment opposed any upgrading of the tracks. In this matter it is the responsibility of the Council to maintain roads in its municipality for access to properties. It is a reasonable expectation by the owner of the subject land that the road would be maintained by the Council in front of the property. The Warby Ranges are not a national park and Adams Road is not a forestry track.
7. I consider that in the circumstances of this application provided there is some upgrading of the section of Adams Road to the applicant's property that the application should be allowed.
8. It is considered that there is a sufficient link between allowing the proposed development and a requirement that the applicant should contribute in some way to the upgrading of the 385m of Adams Road to the entrance to the applicant's property.
9. The Responsible Authority has recommended in draft conditions extensive upgrading of this section of the road including that it be designed to allow emergency vehicles and all weather access with a minimum trafficable width of 4m clear of encroachments and the provision of at least one passing bay a minimum of 20m in length and 6m wide.
10. As stated above, whilst it is not unreasonable to require the applicant to make a contribution to the upgrading of the road as the applicant will be a beneficiary of such upgrading, it is unreasonable as it is a public road to require such upgrading to the extent indicated by the Responsible Authority.
11. The applicant indicated it would accept a condition similar to that imposed in Sargeant v Corangamite SC [7] which required that a report be prepared by a civil engineer detailing works required for all weather road access and that such works be completed prior to commencement of the construction of the dwelling.
12. I consider this would be an appropriate outcome in the circumstances of this matter but consider that any such condition should read as follows:

Prior to the commencement of the development, the permit holder must submit to the Responsible Authority a report prepared by a suitably qualified and experienced civil engineer (or other person to the satisfaction of the Responsible Authority) detailing works required to upgrade Adams Road to an all weather road a minimum of 4m in width from the Council maintained section in front of 108 Adams Road to the entry to the subject land (approximately 385m). Once to the satisfaction of the Responsible Authority, the works must be completed, at no cost to the Council, in accordance with the report prior to the commencement of the construction of the dwelling hereby permitted on the subject land.

1. Given the section to be upgraded is a short distance (385m) and there will be, when upgraded the ability to pass either in front of 108 Adams Road or at the entry to the subject land, I do not consider it necessary to require the provision of a passing bay in this section. If the Council considers this would be desirable then it is a matter for them to provide as ultimately they have the care and control of Adams Road.

Do any other matters warrant rejection of the proposal?

1. The Significant Landscape Overlay Schedule 1 applies to the land. This recognises the Warby Ranges as a prominent and significant feature in the area which dominates the landscape to the north of the Hume Freeway and from Wangaratta and can be seen from many parts of the municipality.
2. A permit is required under this overlay to construct a building and carry out works. The overlay seeks to ensure that development is not inappropriately sited and designed to compromise the visual amenity and tourism values of the Warby Ranges.
3. The dwelling is to be located in a cleared area some distance from the public road. It is to be constructed with a colourbond roof and straw bales walls. Within close proximity to the proposed dwelling there already exists several dwellings with outbuildings which it was indicated have detracted from the landscape in this area.
4. It is considered that given the location of the dwelling, and the external fabric to be used it is unlikely to have any adverse impact on the landscape character of the area. The dwelling will not be visible from the public road or from view points within the wider area.

1. I have indicated above a condition I consider more appropriate relating to the upgrade of a section of Adams Road. Subject to the above condition being substituted for draft condition 4 the other conditions suggested by the Responsible Authority appear to be appropriate.

1. Whilst the application is inconsistent with the policy contained in clause 21.05, to use land for agricultural purpose with dwellings to be linked to such use, it is difficult to give this policy great weight in the context of the condition of the land as being of moderate agricultural versatility and to a large extent covered in remnant native vegetation. Given also the use of the nearby properties the proposed dwelling will not have any impact on the objectives of the policies contained within clause 22.01 to ensure that dwellings do not undermine or have an adverse impact on agricultural activities in the area.
2. It is considered that given the location of the dwelling, and the external fabric to be used it is unlikely to have any adverse impact on the landscape character of the area. The dwelling will not be visible from the public road or from view points within the wider area.
3. I am unable to conclude that the use and development of a dwelling in this location is inconsistent with the WMO. In relation to the availability of water for the landowners and emergency services there are three dams on the property and it is proposed to install a tank which is of adequate size. Such water can readily be accessed by emergency services. The applicant proposes on the subject land an appropriate 4m wide driveway with a 15 tonne capacity with passing bays every 200m which provides direct access for emergency vehicles. The dwelling is to be sited in a cleared area of land with minimal trees in close proximity and there was no indication that the applicant would be unable to comply with the requirements of the CFA regarding the management of vegetation within 10 metres of the dwelling as well as in outer zones.
4. I consider that in the circumstances of this application provided there is some upgrading of the section of Adams Road to the applicant's property that the application should be allowed.
5. The application for review is allowed. The decision of the Responsible Authority is set aside and a permit is granted for the development and use of the subject land for a dwelling subject to conditions.

The permit allows use and development of the land for a dwelling generally in accordance with the endorsed plans and subject to the conditions

1. The development permitted by this permit as shown on the endorsed plan(s) and/or described in the endorsed documents must not be altered or modified (for any reason) except with the prior written consent of the Responsible Authority.
2. Prior to the commencement of development, the owner of the subject land must, at no cost to the Responsible Authority, enter into an agreement (in a form satisfactory to the Responsible Authority) with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987. This agreement must provide that :

The owner must provide evidence to Council annually that;

(a) all conditions required by the Country Fire Authority are being complied with, and

(b) access standards required by condition four (4) are being complied with.

An application must be made to the Registrar of Titles to register the section 173 agreement on title to the subject land under section 181 of the Act.

1. All external materials and trim of the approved dwelling must be of a non-reflective nature. Cladding materials must be coloured or painted in muted shades or in colours satisfactory to the Responsible Authority.
2. Prior to the commencement of the development, the permit holder must submit to the Responsible Authority a report prepared by a suitably qualified and experienced civil engineer (or other person to the satisfaction of the Responsible Authority) detailing works required to upgrade Adams Road to an all weather road a minimum of 4m in width from the Council maintained section in front of 108 Adams Road to the entry to the subject land (approximately 385m). Once to the satisfaction of the Responsible Authority, the works must be completed, at no cost to the Council, in accordance with the report prior to the commencement of the construction of the dwelling hereby permitted on the subject land.
3. Prior to the commencement of the development, a planning permit must be obtained for any removal of native vegetation required to meet the conditions of this permit.
4. Prior to the commencement of the development, the applicant must obtain a permit from Council for an access crossover, and this crossover is to be constructed to the standards specified and to the satisfaction of the Responsible Authority. The minimum distance from the edge of shoulder to the gate is to be 12.5 metres. If required the gate is to be set back into the property from the property boundary to achieve the minimum dimension.
5. Prior to the issue of the Certificate of Occupancy, all internal access roads must be constructed, formed and drained to avoid erosion and to minimise disturbance to natural topography of the land to the satisfaction of the Responsible Authority.

1. A static water supply must meet the following requirements:
   • (a) a minimum of 10,000 litres on-site static storage must be provided on the lot and be maintained solely fire fighting;
   • (b) the water supply must be located within 60 metres of the dwelling;
   • (c) fire brigade vehicles must be able to get to within four metres of the water as indicated on the wildfire development plan;
   • (d) the water supply must be readily identifiable from the building or appropriate signage (see Appendix A: Figure 1) must point to water supply. All below-ground water pipelines must be installed to the following depths:
     • (i) subject to vehicle traffic - 300 mm
     • (ii) under houses or concrete slabs - 75 mm
     • (iii) all other locations - 225 mm
     • (iv) all fixed above-ground water pipelines and fittings, including water supply, must be constructed of non-corrosive and non-combustible materials or protected from the effects of radiant heat and flame.
2. If the static water supply is above ground the following additional standards must apply:
   • (a) all above-ground static water supply must provide at least one 64 mm. thread/25 mm x 50 mm nominal bore British Standard Pipe (BSP), round male coupling (see Appendix A: Figure 2);
   • (b) all pipe work and valving between the water supply and the outlet must be no less than 50 mm nominal bore;
   • (c) if less than 20 metres from the building, each outlet must face away from the building to allow access during emergencies.

1. Access to the dwelling must be designed to allow emergency vehicles access. The minimum design requirements are as follows:
   • (a) curves in driveway must have a minimum radius of ten metres;
   • (b) the average grade must be no more than 1 in 7 (14.4%) (8.1º) with a maximum of no more than 1 in 5 (20%) (11.3º) for no more than 50 metres;
   • (c) dips must have no more than a 1 in 8 (12.5%) (7.1º) entry and exit angle.
2. If the driveway from the road to the dwelling and water supply, including gates, bridges and culverts, is greater than 30 m long, the driveway:
   • (a) must be designed, constructed and maintained for a load limit of at least 15 tonnes';
   • (b) be all weather construction; and
   • (c) must provide a minimum trafficable width of 3.5 metres, and
   • (d) be clear of encroachments 4 metres vertically (see Appendix A: Figure 3).
3. If the driveway is longer than 100 metres, a turning area for fire fighting vehicles close to the dwelling must be provided by either:
   • (a) a turning circle with a minimum radius of 10 metres; or
   • (b) the driveway encircling the dwelling; or
   • (c) a "T" head or "Y" head with a minimum formed surface of each leg being 8 metres in length measured from the centre point of the head, and
   • (d) four metres trafficable width (see Appendix A: Figure 4).
4. If the length of the driveway is greater than 200 metres, passing bays must be provided. Passing bays must be 20 metres long and must be provided every 200 metres, with a trafficable width of six metres (see Appendix A: Figure 5).

1. The Wildfire Development Plan 31/08/2009 must be endorsed as part of the Permit.
2. The vegetation management areas as indicated on the Wildfire Management Plan must be maintained to the following standard:

A distance of 10 metres around the proposed dwelling must be maintained to the following requirements during the declared 'Fire Danger Period' to the satisfaction of the Responsible Authority.

• Grass must be no more than 100mm in height.
• Leaf litter must be less than 10mm deep.
• There must be no elevated fuel on at least 50% of the area. On the remaining 50% the elevated fuel must be at most, sparse, with very little dead material.
• Dry native shrubs must be isolated in small clumps more than ten metres away from the dwelling.
• Trees must not overhang the roofline of the dwelling.

Vegetation in outer zones, as specified in the wildfire development plan must be maintained to the following requirements during the declared "Fire Danger Period' to the satisfaction of the responsible authority.

• Grass must be no more than 100mm in height.
• Leaf litter must be less than 20mm deep.
• There must be no elevated fuel on at least 50% of the outer zone area.
• Clumps of dry native shrubs must be isolated from one another by at least ten metres.

1. Building construction to a minimum Bushfire Attack Level (BAL) of BAL- 19 in accordance with AS3959-2009.

1. This permit will expire if:
   • (a) The development is not commenced within two years of the date of this permit;
   • (b) Provided (a) is complied with the development is not completed within four 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.

Non-flammable features such as tennis courts, swimming pools, dams, patios, driveways, or paths should be incorporated into the vegetation management plan, especially on the north and western sides of the proposed building.

Features with high flammability such as coir doormats, firewood stacks should not be located near the dwelling during the fire danger period.

There is a requirement under the Building Regulations 2006 to undertake a site assessment and determine a BAL in accordance with AS 3959-2009. CFA has undertaken a site inspection in accordance with Building in a Wildfire Management Overlay: Applicant's Kit (CFA 2007). The BAL determined above is the minimum construction standard CFA believes necessary to achieve an adequate level of wildfire safety for the prescribed vegetation management conditions. Application of AS 3959-2009 for the purposes of the Building Regulations 2006 may determine that a higher BAL is required. CFA is unlikely to support any application made to the Building Appeals Board to reduce the safety requirements of this level of construction.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] 2009 Bushfire Royal Commission Final Report, July 2010

[3] Gippsland Coastal Board v South Gippsland SC & Ors (No 2) (Red Dot) [2008] VCAT 1545

[4] [2010] VCAT 900 (21 May 2010)

[5] [2006] VCAT 318

[6] [1999] VCAT 427

[7] [2005] VCAT 264 (16 February 2005)