Clause 45.06 Development Contributions Plan Overlay

The combined area of 32- 34 Railway Road Neerim South is 2206 square metres. The site is broadly rectangular in shape and has a 31.3 m frontage to Railway Parade and a 49.6 m frontage to Railway Road.

The topography of the land is flat, and the review site is currently vacant.

The site is located approximately 34.2m from the bank of Red Hill Creek.

1. The applicant has applied for a permit from the Baw Baw Shire Council ('Council') to build four dwellings on 32 - 34 Railway Road, Neerim South ('review site'). It is a relatively large corner site.
2. The review site is contained within the General Residential Zone[2] of the Baw Baw Planning Scheme ('Scheme'). The land is not in a zone which relates to flooding nor are there any overlay which apply to it due to any propensity for flooding.
3. Despite this, the Council referred the application to the West Gippsland Catchment Management Authority ('CMA') which requested the applicant produce a report about the flooding issues relating to the review site. The applicant commissioned a report from Rain Consulting ('Flood report').
4. The CMA and the Council do not consider the flooding concerns held by the CMA have been adequately addressed by the applicant.
5. The Council has refused the application on four grounds all of which relate to water movement to, onto, from and around the site. No person contests the ability of the Council to rely on grounds which relate to storm water and water intrusion on the site[3].
6. The applicant would contest each of the grounds of refusal if matters relating to flooding can be taken into account by the Tribunal.
7. The CMA wishes to participate in the proceeding. In order to do so it needs to be joined as a party because, it is not a referral authority and did not submit its statement of grounds with payment by the date required[4]. No party says that it should not be joined on the basis of the failure to pay the relevant fee in time.
8. The primary question for consideration at the preliminary hearing was whether the Council and the CMA can rely on grounds of refusal or review related to flooding.
9. I have concluded that the grounds available to the Council and the CMA are more limited than they contend and have made orders consistent with my findings which reduce the scope of the grounds in contention.
10. I have not joined the CMA on the basis of my findings that the grounds they seek to rely on are not relevant considerations in this matter.
11. The background to this decision includes the Council's decision to abandon a proposed amendment to the planning scheme which would have included zones and overlays into the scheme which directly address flooding on the review site. The effect of the abandonment of this amendment is that the Council and the CMA are unable to raise before the Tribunal the full range of matters that could have been considered if that amendment had been pursued.

WHY WAS THE MATTER REFERRED TO A PRACTICE DAY HEARING?

1. By order dated 21 November 2024, the Tribunal listed this matter for a Practice Day Hearing for purposes including[5]:
   • To consider the relevance of the grounds relied upon by the Baw Baw Shire Council relating to flooding given the planning scheme controls that apply.
   • To consider the standing of the West Gippsland Catchment Management Authority having filed an attending Statement of Grounds, given the planning permissions required for the application and the referral and notice requirements of the Baw Baw Planning Scheme.
   • To consider whether to grant leave under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) for the West Gippsland Catchment Management Authority to be joined as a party to the proceeding.
2. The Council grounds of refusal of the application are:
   1. The proposed development is contrary to the objectives and strategies of the Municipal Planning Strategy and the Planning Policy Framework as the proposed development does not adequately demonstrate appropriate flood mitigation measures to manage the site in the event of flooding. These clauses are:
      • Clause 02.02 Vision
      • Clause 02.03-1 Settlement and Housing
      • Clause 11.01-1S Settlement
      • Clause 11.01-1R Settlement - Gippsland
      • Clause 12.03-1S River and Riparian Corridors, Waterways, Lakes, Wetlands and Billabongs
      • Clause 13.01-1 Natural Hazards and Climate Change
      • Clause 13.03-1S Floodplain Management
      • Clause 19.03-3S Integrated Water Management
   2. The application has not adequately demonstrated that it will manage stormwater in accordance with the purpose and requirements of Clause 53.18 Stormwater in Urban Development.
   3. The development is not consistent with the requirements of Clause 55.02-4 Infrastructure and Clause 55.03-4 Permeability and Stormwater Management as the subject site is not serviced by appropriate drainage infrastructure to manage the development.
   4. The proposal is not considered to produce an acceptable outcome when assessed against the decision guidelines of Clause 65.
3. The Statement of Grounds sought to be relied upon by the CMA raises the following four grounds:

1. The proposal is not consistent with the objective of clause 13.01-1S 'Natural hazards and climate change' of the Planning Policy Framework (PPF) which seeks to 'minimise the impacts of natural hazards and adapt to the impacts of climate change through risk-based planning'.

• Site and design development to minimise risk to life, health, property, the natural environment and community infrastructure from natural hazards. (ground 1 - clause 13)

2. The proposal is not consistent with the objective of clause 13.03-1S 'Floodplain management' of the PPF which seeks to 'assist the protection of: life, property and community infrastructure from flood hazard, including coastal inundation, riverine and overland flows; the natural flood carrying capacity of rivers, streams and floodways; the flood storage function of floodplains and waterways; floodplain areas of environmental significance or of importance to river, wetland or coastal health.' This includes the following strategies:

• Avoid intensifying the impact of flooding through inappropriately located use and development.
• Plan for the cumulative impacts of use and development on flood behaviour. (ground 2 - clause 13)

3. The proposal is not consistent with the principles and objectives from the Authority's Flood Guidelines: Guidelines for development in flood prone areas (2020)[6]. (Ground 3 - Flood Guidelines)

4. The proposal is not consistent with the decision guidelines in the Victorian Planning Provision (VPP) Planning Practice Note PPN11: Applying for a Planning Permit Under the Flood Provisions, in that:

b. It is likely to result in danger to the life, health and safety of the occupants due to flooding of the site.

c. It relies on low-level access to and from the site.

d. It is likely to increase the burden on emergency services and the risk to emergency personnel.

e. It is likely to increase the amount of flood damage to public or private assets.

f. It is likely to increase the number of buildings located in a floodway area. (Ground 4 - PPN1)

1. At the practice day hearing, the parties agreed on a number of relevant matters:
   • planning permission is only required under the scheme to construct two or more dwelling on a lot pursuant to clause 32.08-7 of the Scheme;
   • there are no referral authorities to whom notice is required to be given. (The CMA is not a referral authority.);
   • there are no further questions of law required to be considered other than consideration of the matters identified in the purposes of the practice day;
   • a preliminary hearing is not required;
   • if the Tribunal concludes that the grounds relating to flooding cannot be relied upon by the CMA or the Council, the CMA does not seek to be joined as a party; and
2. no party sought to rely on the CMA's delay in paying the fee relating to its statement of grounds as a reason not to join the CMA to the proceedings.
3. The representatives who attended the Practice Day Hearing provided comprehensive oral submissions in accordance with their pre-filed submissions and further brief submissions addressing previous decisions of the Tribunal raised by the CMA at the Practice Day Hearing[7].
4. The parties also responded to a further request from the Tribunal which required the CMA to provide a copy of the guidelines referred to in its third proposed ground of review and to address to provide information about the status of the Flood Guidelines - Guidelines for development in flood prone areas January 2020 ('Flood Guidelines') including whether that document has been adopted by a Minister, government department or public authority and whether it has the status of a document to which section 60(1A)(g) of the Planning and Environment Act 1987 (Vic) ('PE Act') applies.
5. The CMA provided this information, and the Council and permit applicant took the opportunity offered to comment on the relevance of the guidelines.

1. The review site is outlined in red in figure 1 and is located close to, but not adjacent to, Red Hill Creek. It is the proximity to the creek and the potential for flood risk which sits at the heart of the concerns raised by the CMA and relied upon by the Council in its grounds of review.

Figure 1 - Extract from page 6 Council officer's report

1. The proposal is to build four residential properties on the review site. As is apparent from the aerial photographs, these would sit in an area in which existing residential development has occurred - some of which is closer to the Red Hill Creek than the proposal.

1. The site and its surrounds are located within the GRZ which at a broad level directs housing to this area.

1. There are no other overlays or planning scheme provisions under which permission is required in this location although the provisions of clause 55 and clause 53.18 are required to be considered because the proposal is to build more than one dwelling on the lot.

1. The application for permit was lodged on 10 January 2023.
2. A request for further information was made by the Council on 6 February 2023 which did not refer to flooding or drainage considerations. That request for further information required the submission of further information including a landscape plan which was submitted by the permit applicant.
3. There appeared to follow discussions between the Council and the CMA after which the applicant modified its proposal for the purposes of complying with the requests of the CMA and provided the Flood report seeking to address flooding issues.
4. A letter from Aspect Planning Services addressed to Baw Baw Shire Council dated 26 March 2024 refers to issues raised in a letter from the CMA dated 6 July 2023. The letter points out that the CMA is not a referral authority and that the only permit trigger for the application is under the 32.08-4 of the General Residential Zone. This letter makes two other relevant comments:

'As a result of the changes made, the impact on nearby properties is extremely minor.

...

[After pointing out that the CMA is not a referral authority] As such the West Gippsland Catchment Management Authority does not have a statutory role in the assessment of the application.

Changes Made to Address the CMA issues

In response to the issues raised by the CMA, the permit applicant has made significant changes to the design, which include:

• Amending the design to increase the west boundary setback from 1 - 2.1 m to 9m.
• Raising the floor levels to 800mm - 1.1m above grounds level.
• Including raised decking areas in the rear open space areas.
• Building the dwellings on stumps to meet the minimum 300mm freeboard requirement to the water surface elevation.

The changes have been informed by the Flood Impact Assessment prepared by Raiin dated 15 January 2024.

...

Given the significant delays that have been incurred, it is requested that the application proceed to advertising as soon as possible.'

1. The applicant amended the application under section 50 of PE Act. It stated that the purpose of the amendment was 'to align with flood modelling'.[8]
2. The Council advertised the application including to the CMA under section 52(1)(d) of the PE Act. The CMA and others lodged objections to the application.
3. The Council rejected the application on grounds which appear to be primarily based on the comments received from the CMA as well as its own assessment of the application as it related to flooding and stormwater related issues.

1. The key issue for consideration is whether the Council and the CMA are entitled to rely on grounds relating to flooding in circumstances where there is no zone or overlay relating to flooding affecting the review site.

1. Questions as to how planning decision makers should interpret the PE Act and planning schemes to discern the relevant considerations for each application are not new.
2. They have been brought into sharper focus by recent decisions of the Courts and Tribunal. The Tribunal recently described his as 'the recent jurisprudence issues'.[9]
3. This recent jurisprudence builds upon analyses such as that in Victorian National Parks Association Inc v Iluka Resources Limited[10] ('Victorian National Parks decision'), in which the Tribunal constituted by Justice S Morris, considered whether flows of water in the local river and lake system were relevant to consideration in an application for a pipeline (which was characterised as a minor utility installation and a pumping station which was characterised as a utility installation). He concluded, in essence, that the purpose for which the discretion was conferred did not relate to control of water flows in the surrounding water system and was not relevant in considering that application.
4. In considering that application he referred to the relevant zone, clause and to the guidelines at clause 65, section 60 of the PE Act_,_ state and local policies relating to downstream water environments (clause 15.01-2) and section 84B of the PE Act. At [30] of the Victorian National Parks decision Morris J stated:

[30] It can be observed that the apparent scope of relevant considerations is extremely broad. This is typically the case with planning permit decisions. Yet if all apparently relevant factors need to be considered in a particular case, with reasons being articulated as to how the matter was taken into account, the making of planning permit decisions would be quite impossible. In the real world, most decisions revolve around just one or two key considerations.

[35] The National Trust principle has a valuable role to play in the administration of planning in Victoria. Indeed, current planning schemes, which are based on the Victoria Planning Provisions, are predicated upon the application of the National Trust principle. These schemes contain many provisions which require a permit to be obtained in specific circumstances, which are designed to regulate use or development in those specific circumstances. For example, there are specific controls in relation to the construction of buildings in wildfire areas, in areas prone to erosion, in areas susceptible to flooding and in areas susceptible to land salinity. Similarly, there are provisions in relation to the height of buildings, access on to main roads and the removal of native vegetation. Sometimes these specific controls are part of an overlay provision; sometimes they are the result of specific clauses of the scheme. If, upon an application for a permit under one of the specific provisions, the decision maker was required to consider the full panoply of planning considerations set out in sections 60 and 84B of the Planning and Environment Act and in clause 65 of each planning scheme, planning decision making would grind to a standstill.

6. The question arising in this case is whether on the material before the Tribunal, flooding is a matter which ought to be considered as a risk arising from the proposal which is in the nature of the type of risk usually considered by the planning system - and whether the planning scheme provisions which apply support consideration of flood risk. The question I must ask myself is - do the planning provisions as they have been considered by the Courts and this Tribunal preclude the Tribunal from considering flooding where no relevant control is engaged?
7. In answering that question, it is appropriate to start with the decision of the Court of Appeal in National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VSC 528.
8. In that case the National Trust argued that the requirement for a planning permit under a sub-clause which created a discretion relating to height allowed it to argue matters relating to the amenity of the surrounding area and whether it would be affected by the demolition of an historic building. The Court of Appeal disagreed with the National Trust saying in part:

The latter part of this argument meets immediately with difficulty. For the purpose of the grant of the discretion is to control the height of buildings in a particular area. Notwithstanding the general words of clause 5A the responsible authority is not entitled "to introduce into the considerations affecting the grant of a licence an element foreign to the duties" of the authority in that regard, or to engage "in a consideration of matters extraneous to the application for a licence", or matter which is "too remote" therefrom. (Victorian Railways Commissioners v McCartney and Nicholson (1934) 52 CLR at pp. 390, 395, 398). "The discretion must be used and the power exercised bona fide and with the view of achieving ends or objects not outside the purposes for which the discretion or power is conferred". (Shrimpton v the Commonwealth (1945) 69 CLR, at pp. 620, 627, 631 and 632). The discretion conferred by clause 24(4) is one conferred for the purpose of controlling the height of buildings. In that connection it is proper to have regard to what is prescribed by clause 5A. But to use that discretion for the purpose of endeavouring to ensure the conservation of an historic building and to regulate the orderly and proper planning of the area in which it is situated and the amenity of the neighbourhood, in other respects than with regard to the height of the building, is to endeavour to achieve ends outside the purpose for which the power is conferred and to intrude into the exercise of the discretion matters which are extraneous to it. The responsible authority could not properly refuse the permit under the Planning Scheme on such considerations and could not properly have regard to them in determining whether to grant a permit or not. [emphasis added]

1. In essence this is what has come to be known as the national trust principle. It predates that introduction of the current planning schemes but remains important. In the Victorian National Parks decision Morris J, after discussing other decisions of the Courts which affirmed this principle, stated:

[36] As presently advised, I consider that the tribunal, even when constituted by the President, is bound by decisions of the Supreme Court of Victoria. Hence, I regard myself as bound by the decision in Shalit, the ratio decidendi of which is directly in point, and hold that the National Trust principle applies to planning schemes based upon the Victoria Planning Provisions. (Incidentally, any other finding would create a severe problem for planning decision-making in Victoria and would require an immediate legislative amendment.) But I am also of the independent view that the National Trust principle is applicable to current Victorian planning schemes.

2. This principle has been applied and upheld in numerous decisions by which this Tribunal is bound.[11]
3. More recently the Tribunal constituted by the President at the time has considered a situation in which it was argued that policy relating to sustainable transport should be considered where the planning scheme contained provisions directly relating to car parking which were not engaged by the application. The car parking provision in clause 53.06 of the relevant planning scheme set limits on the minimum but not maximum number of car parking spaces to be provided and no dispensation was sought or required.
4. Quigley J in Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 1191[12] discussed whether policy could guide or dictate the outcome of a permit applications where the subject matter was subject to a control in the scheme, but permission was not required under that control. Her Honour stated:

No discretion to be exercised means that no policies are engaged[13]

[68] The Tribunal must only consider the policies at state and local level that are relevant to the exercise of the discretion it has to determine. No permit is required for a provision of car parking over the specified rate in Clause 52.06 thus no question of the exercise of discretion arises in respect of provision of the quantum of car parking.

[69] The principles which should be applied can be summarised as follows:

• It is only the statutory requirement for a permit that triggers an exercise of discretion under the Act and the Scheme. Policy cannot expand the purpose for which the discretion is to be exercised beyond the realms of the control itself.
• A decision maker may only exercise a discretion for the purpose for which it is conferred.
• The purpose will be identified from the words of the control itself, including the decision guidelines and from its context.
• The decision maker can look at the other aspects of the planning scheme to ascertain the context in which the discretion has been provided and the possible basis of the discretionary provision.
• Only those aspects of the Scheme relevant to this context will assist in the ascertainment of the purpose. The requirement for a permit does not open up the broad range of policy considerations or other matters which are not directed to the purpose for which the discretion is being exercised.
• In exercising discretion, the decision maker must only take into account relevant considerations. The ascertainment of what is relevant is primarily deduced from the words of the control itself as it is the starting point to identification of the purpose for which the exercise of discretion is to be undertaken.
• In the circumstances where the permit triggers are a single issue eg heritage considerations or flooding, the relevant considerations are more easily identified.
• Where there are multiple permit triggers and hence multiple planning considerations, considerations of synthesising the potential conflicting policy issues, giving them respective weight and the expectations of integrated decision making arises.

[75] The Tribunal's task is to make a decision on the permit application taking into account all relevant considerations called up by the permit triggers set out in the Scheme. > > [76] The ambit of the discretion to be exercised is constrained by the purpose for which it is generated. Policy of itself is not a trigger for the exercise of discretion but provides the guidance and strategic context for decision-making once a decision has to be made under the planning scheme provisions. > > [77] The role of policy is not the same as the role of the provisions which trigger the need for a permit. Policy at this statutory point is the servant not the master.

One must remain mindful that policy cannot operate as a control. The zone and overlays and particular provisions are the controls. They are the provisions which trigger a permit requirement, that is, they are the provisions which call up an exercise of discretion. Polices assist in the exercise of discretion when a decision is to be made, that is where a permit.is required for a particular use or development.

1. Forbes J described the conclusion in Brunswick Investment in Viva Energy Australia Pty Ltd v City of Greater Geelong Council & Anor[14]

In essence the relevant clause dealing with car parking in the planning scheme was held to 'cover the field' with respect to car parking requiring a permit. The fact that no permit was required under that provision was not a relevant consideration in assessing the permit that was before the Tribunal under the zone.

1. The present case is similar to Brunswick Investment scenario in that there are a number of provisions in the Victorian Planning Provisions[15] and the Baw Baw Planning Scheme[16] which would have required consideration of flooding but have not been enacted so as to apply to the review site and consequently the decision under review. It is the absence of those controls applying to the land which is important to this decision.
2. A similar question arose in the more recent decision of the Tribunal in Cinanni v Campaspe SC [2023] 797 which concerned the scope of the matters which could be raised by objectors where there was an LSIO in place which was exempt from third party rights. The similarity was that the scope of matters available to be addressed by third parties was framed by the matters the LSIO covered - those matters covered by the LSIO were not available for third parties as grounds of review. Member Whitney held:

[133] Rather, given the Council's issue of the NOD for the proposal, the approval of the permission sought under the LSIO - as well as the permission sought under the BMO1 - can be said to have been 'established'. Accordingly, the only permission that is available for review by the applicants under section 82 of the Act is that sought under the GRZ. > > [134] What this means is that the only matters that are available for review by the Tribunal in this proceeding brought under section 82 of the Act are those that relate to the permission sought under the GRZ. > > [135] The flooding concerns raised by the applicants are properly addressed in the assessment of the permission sought under the LSIO. As stated, this permission is not before the Tribunal in this review proceeding. > > [136] The only way that the applicants' concerns regarding flooding could be taken into account is through the Tribunal's consideration of the permission that is before the Tribunal for review, being that under the GRZ. > > [137] I acknowledge that there is State and local planning policy in the Scheme that deals with floodplains: clause 13.03 'Floodplains' includes clause 13.03-1S 'Floodplain management' and clause 13.03-1L 'Floodplain management in Campaspe'. > > [138] I also acknowledge that clause 65.01 of the Scheme requires consideration 'as appropriate' of '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'. > > [139] I acknowledge that section 60(1)(e) of the Act requires consideration of any significant effects which the responsible authority considers the development may have on the environment or which the environment may have on the development. > > [140] These provisions would be relevant to the assessment of the permission sought under the LSIO. However, as stated, the decision to issue the permission under the LISO is not reviewable in this proceeding. > > [141] These provisions will not be taken into account in assessing the permission sought under the GRZ. This is because, given the imposition of the LSIO over the Land, the LSIO 'covers the field' with respect to floodplain management of areas identified for inclusion in the LSIO. > > [142] Analogous with the situation in Clifftop as regards the presence of the BMO in that case, in the present case where the LSIO is in operation, floodplain management and flooding risk is assessed under the LSIO and not under the GRZ. > > [143] In summary:

1. of the three permissions sought, it is only the permission under the GRZ that is before the Tribunal for review in this proceeding;
2. given the Land is in the LSIO, the assessment of floodplain management and flooding risk occurs under the LSIO, including the application of State and local planning policy in the Scheme, clause 65 of the Scheme and section 60(1)(e) of the Act that relates to floodplain management;
3. the permission sought under the LSIO is not available for review under section 82 of the Act and the approval of that permission is taken to be a matter that has been 'established', in terms of the assessment of this proposal overall; and
4. as the LSIO 'covers the field' with respect to floodplain management of areas identified for inclusion in the LSIO, State and local planning policy in the Scheme, clause 65 of the Scheme and section 60(1)(e) of the Act that relates to floodplain management will not be taken into account in assessing the permission sought under the GRZ.

...

[154] The purposes of the GRZ are to encourage residential development that respects neighbourhood character, and to do so in higher densities in parts of the GRZ that are well located in terms of access to services and transport. It is also to provide for appropriate non-residential development, such as medical centres and places of worship.

[155] It is not to identify land that is prone to flooding or to manage flood risk in association with land.

[156] If land is identified as being prone to flooding and requiring special management as a consequence, including in terms of whether it can be developed with dwellings and how many, that land should be included in one of the specific flood zones or overlays. The inclusion of land in such a zone or overlay will have implications in terms of the development potential of the land - as is expected. The inclusion of land in such a zone or overlay would occur following a planning scheme amendment, where affected persons are given the opportunity to comment on the land's potential rezoning.

[157] Here, the Land is included in such a flood overlay, with the consequence that those specific flood concerns are assessed when permission is required under the LSIO. That is the appropriate place to assess those matters.

[158] It cannot be the case that effectively the same issues with regards to flood risk and flood management can be taken into account in the assessment of permission sought under the GRZ, through the application of clause 13.03‑1S, 13.03-1L and clause 65 of the Scheme and section 60(1)(e) of the Act as are taken into account in assessing a permission sought under a specific flood overlay, such as the LSIO.

[159] If this were so, then this would result in a decision-maker taking into account specialised and potentially technical matters under a more generalised zone permission, where the decision guidelines in the zone are not directed at such assessment.

[160] As I said in Clifftop, this would also effectively provide third parties with a 'back door' to be involved in the assessment of these matters through, in this case, a development permission under the GRZ when those persons are not able to address those matters via the specific provision that deals with it, namely the LSIO, due to the exemption in the Scheme. This cannot be correct.

[161] For these reasons, I find that in the circumstances of this proceeding, the applicants cannot raise flooding concerns in relation to the decision that is before the Tribunal, namely, whether to grant permission under the GRZ for the development of 16 dwellings.

1. The Cinnani decision is consistent with the reasoning in a series of recent decisions each of which have adopted a consistent position in relation to the limiting relevance of the consideration of policy and broadly cast provisions to the subject matter of controls to which that policy is relevant.[17]
2. Member Whitney in that case held that the LSIO 'covered the field' in that once the relevant consideration were made under that overlay those matters were not open for reconsideration under the GRZ provisions. I agree with that conclusion. In the present matter the consequence is that the matters relating to flooding are not relevant under the GRZ because the controls relating to flood which are not engaged would have covered the field if engaged.
3. The consequences are different here but I do not consider that the analysis is driven by consequence rather than an analysis of the terms of the planning scheme. While I do not suggest that there are no circumstances in which there is an overlap in considerations under two provisions, I agree with Member Whitney that that overlap does not occur when considering the LSIO (or other flooding triggers) and the GRZ.
4. In Trickey v Mount Alexander SC [2024] VCAT 863 Member Whitney considered bushfire and flooding grounds and concluded in respect of flooding:

[84] As to flooding risk, following the same line of thinking, I am also not prepared to amend the grounds of review to include the second ground in the applicant's correspondence dated 13 June 2024 that deals with flooding risk and impact. > > [85] I acknowledge that the second purpose of the LDRZ directs consideration to whether lots, in the absence of reticulated sewerage, can treat and retain all wastewater generated on site. I accept that the referral under clause 66.02-5 of the Scheme supports the notion that impact to the catchment is an important consideration in an application under the LDRZ. However, neither of these things is akin to dealing with flooding risk; these are about potential impact to the catchment, not the impact of, or on, flooding as a consequence of the development. > > [86] In the absence of any purpose or decision guideline in the LDRZ that refers to flooding risk, there is no warrant to be assessing the flooding risk associated with the proposal through the permissions sought under the LDRZ. > > [87] Whilst there is a waterway (and dam on the waterway) on the Land, there is no zone or overlay control applied to the Land that addresses flooding risk. This being the case, notwithstanding what the applicant or other persons might contend about flooding risk posed by or to the Land, in the absence of such a control, the Scheme does not recognise that flooding is a matter that needs to be taken into account in assessing use and development on the Land. > > [88] Finally, notwithstanding the respondent's reference to clause 52.17 of the Scheme, I am also not persuaded that there is any link in the permission sought in that clause or in those permissions sought under the LDRZ to the potential impact on wildlife as a consequence of light spill from the proposal or increased vehicle movements from the proposal. > > [89] As such, I am also not prepared to amend the applicant's grounds to include the third ground in the applicant's correspondence dated 13 June 2024.

5. These decisions direct the decision-maker to the purpose of the provisions which require a permit and away from a focus on policy provisions which are not linked to a permission required for a specific purpose.
6. On the basis of the above analysis, I consider that the CMA and the Council need to demonstrate a clear link between the permissions required under the planning scheme and the general and policy provision they seek to rely on. I return to the submissions from the parties below.

Which zones, overlay and particular provisions apply to the review site?

1. The sole discretion for consideration here is to be exercised under the General Residential Zone. The zone provisions also engage considerations under clause 55[18] and clause 53.18[19] of the Scheme. There is no dispute that the considerations within those provisions are relevant considerations - nor has any submission asserted that these provisions raise flooding as an identified risk in this case and thereby a relevant consideration.
2. The scope of the controversy in this case centres around the purposes of the GRZ on the Council's analysis; or on the CMA's analysis: clause 13, clause 60 and guidelines and documents sought to be relied upon under clause 60(1A)(g) as well as the terms of Planning Practice Note 11 - Applying for a planning permit under the flood provisions.

1. For reference I have set out some of the planning scheme provisions which do apply and those which are relied upon in the parties' submissions.[20]
2. The purpose of the GRZ is:
   • To implement the Municipal Planning Strategy and the Planning Policy Framework.
   • To encourage development that respects the neighbourhood character of the area.
   • To encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport.
   • To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations.
3. The decision guidelines under the GRZ are:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

General

• The Municipal Planning Strategy and the Planning Policy Framework.
• The purpose of this zone.
• The objectives set out in a schedule to this zone.
• Any other decision guidelines specified in a schedule to this zone.
• The impact of overshadowing on existing rooftop solar energy systems on dwellings on adjoining lots in a General Residential Zone, Housing Choice and Transport Zone, Mixed Use Zone, Neighbourhood Residential Zone, Residential Growth Zone or Township Zone.

...

Dwellings, small second dwellings and residential buildings

• For the construction and extension of one dwelling on a lot and a small second dwelling, the applicable objectives, standards and decision guidelines of Clause 54.
• For the construction and extension of two or more dwellings on a lot, dwellings on common property and residential buildings, the objectives, standards and decision guidelines of Clause 55. This does not apply to an apartment development of five or more storeys, excluding a basement.
• For the construction and extension of an apartment development of five or more storeys, excluding a basement, the objectives, standards and decisions guidelines of Clause 58.

1. The provisions of the GRZ include clause 32.08-12 which includes a requirement relating to building height if the land is subject to inundation:

Building height if the land is subject to inundation

If the land is in the Special Building Overlay, Land Subject to Inundation Overlay or is land liable to inundation the maximum building height specified in the zone or schedule to the zone is the vertical distance from the minimum floor level determined by the relevant drainage authority or floodplain management authority to the roof or parapet at any point[22].

1. Clause 65 sets out various matters which must be considered, as appropriate as follows:

Before deciding on an application or approval of a plan, the responsible authority must consider, as appropriate:

• The matters set out in section 60 of the Act.
• Any significant effects the environment, including the contamination of land, may have on the use or development.
• The Municipal Planning Strategy and the Planning Policy Framework.
• The purpose of the zone, overlay or other provision.
• Any matter required to be considered in the zone, overlay or other provision.
• The orderly planning of the area.
• The effect on the environment, human health and amenity of the area.
• The proximity of the land to any public land.
• Factors likely to cause or contribute to land degradation, salinity or reduce water quality.
• 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.
• The adequacy of loading and unloading facilities and any associated amenity, traffic flow and road safety impacts.
• The impact the use or development will have on the current and future development and operation of the transport system.

This clause does not apply to a VicSmart application.[23]

1. Further broad considerations are set out in section 60 of the PE Act which includes:

(1) Before deciding on an application, the responsible authority must consider -

(a) the relevant planning scheme; and

(b) the objectives of planning in Victoria; and

(c) all objections and other submissions which it has received and which have not been withdrawn; and

(d) any decision and comments of a referral authority which it has received; and

(e) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and

(f) any significant social effects and economic effects which the responsible authority considers the use or development may have.

(1A) Before deciding on an application, the responsible authority, if the circumstances appear to so require, may consider -

...

(g) any other strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; ...

1. Clause 13.03-1S is a State level planning policy included in the Scheme which relates to floodplain management which is sought to be relied upon by the CMA. It states:

• To assist the protection of:
• Life, property and community infrastructure from flood hazard, including coastal inundation, riverine and overland flows.
• The natural flood carrying capacity of rivers, streams and floodways.
• The flood storage function of floodplains and waterways.
• Floodplain areas of environmental significance or of importance to river, wetland or coastal health.

Strategies

Identify land affected by flooding, including land inundated by the 1 in 100-year flood event (1 per cent Annual Exceedance Probability) or as determined by the floodplain management authority in planning schemes.

Avoid intensifying the impact of flooding through inappropriately located use and development.

Plan for the cumulative impacts of use and development on flood behaviour.

Locate emergency and community facilities (including hospitals, ambulance stations, police stations, fire stations, residential aged care facilities, communication facilities, transport facilities, community shelters, child care centres and schools) outside the 1 in 100 year (1 per cent Annual Exceedance Probability) floodplain and, where possible, at levels above the height of the probable maximum flood.

Locate use and development that involve the storage or disposal of environmentally hazardous industrial and agricultural chemicals or wastes and other dangerous goods (including intensive animal industries and sewage treatment plants) outside floodplains unless site design and management is such that potential contact between such substances and floodwaters is prevented, without affecting the flood carrying and flood storage functions of the floodplain.

Ensure land use on floodplains minimises the risk of waterway contamination occurring during floods and floodplains are able to function as temporary storage to moderate peak flows and minimise downstream impacts.

Policy guidelines

Consider as relevant:

• Regional catchment strategies and special area plans approved by the Minister for Environment or Minister for Water.
• Any floodplain management manual or guideline of policy and practice, or catchment management, river health, wetland or floodplain management strategy adopted by the relevant responsible floodplain management authority.
• Any best practice environmental management guidelines for stormwater adopted by the Environment Protection Authority.

• Victorian Floodplain Management Strategy (Department of Environment, Land, Water and Planning, 2016)

Which planning scheme provisions do not affect the review site?

1. The review site is not subject to the planning scheme provisions which have been devised to address flooding issues.
2. Planning Practice Note 12 - Applying the Flood Provisions in Planning Schemes provides guidance as to which of the flood zone and overlay provisions is appropriate to apply in a variety of circumstances. The uppermost sections of table 1 provide some insight:

1. I have set out the purposes of each of these zones and overlays for reference:
   1. The purposes of the Urban Floodway Zone are:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To identify waterways, major floodpaths, drainage depressions and high hazard areas within urban areas which have the greatest risk and frequency of being affected by flooding.

To ensure that any development maintains the free passage and temporary storage of floodwater, minimises flood damage and is compatible with flood hazard, local drainage conditions and the minimisation of soil erosion, sedimentation and silting.

To reflect any declarations under Division 4 of Part 10 of the Water Act, 1989.

To protect water quality and waterways as natural resources by managing urban stormwater, protecting water supply catchment areas and managing saline discharges to minimise the risks to the environmental quality of water and groundwater.

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To identify waterways, major floodpaths, drainage depressions and high hazard areas which have the greatest risk and frequency of being affected by flooding.

To ensure that any development maintains the free passage and temporary storage of floodwater, minimises flood damage and is compatible with flood hazard, local drainage conditions and the minimisation of soil erosion, sedimentation and silting.

To reflect any declarations under Division 4 of Part 10 of the Water Act, 1989 if a declaration has been made.

To protect water quality and waterways as natural resources by managing urban stormwater, protecting water supply catchment areas, and managing saline discharges to minimise the risks to the environmental quality of water and groundwater.

To ensure that development maintains or improves river and wetland health, waterway protection and flood plain health.

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To identify flood prone land in a riverine or coastal area affected by the 1 in 100 (1 per cent Annual Exceedance Probability) year flood or any other area determined by the floodplain management authority.

To ensure that development maintains the free passage and temporary storage of floodwaters, minimises flood damage, responds to the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity.

To minimise the potential flood risk to life, health and safety associated with development.

To reflect a declaration under Division 4 of Part 10 of the Water Act, 1989.

To protect water quality and waterways as natural resources by managing urban stormwater, protecting water supply catchment areas, and managing saline discharges to minimise the risks to the environmental quality of water and groundwater.

To ensure that development maintains or improves river, marine, coastal and wetland health, waterway protection and floodplain health.

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To identify land in urban areas liable to inundation by overland flows from the urban drainage system as determined by, or in consultation with, the floodplain management authority.

To ensure that development maintains the free passage and temporary storage of floodwaters, minimises flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity.

To protect water quality and waterways as natural resources by managing urban stormwater, protecting water supply catchment areas, and managing saline discharges to minimise the risks to the environmental quality of water and groundwater.

1. The permit says that flooding is not a relevant issue for consideration in this application and submits that the CMA ought not be joined and the Council should not be permitted to rely on grounds related to flooding.
2. The permit applicant does not contest that the grounds sought to be relied upon by the Council can be pursued:
   1. In so far as they relate to clause 53.18 Stormwater in Urban Development, 55.02-4 Infrastructure and clause 55.03-4 Permeability and Stormwater Management; and
   2. In so far as they do not relate to flooding[24].
3. The analysis relies upon many of the decisions discussed above to support that argument.

1. The Council's submissions extract a number of clauses from the Scheme including: Clause 11.01-S - Settlement; Clause 11.01 Settlement - Gippsland; Clause 11.01-1L-03 - Secondary towns - Moderate growth (Strategies - Neerim South); Clause 12.03 - River and Riparian Corridors, Wetlands and Billabongs; Clase 13.01-1 Natural Hazards and Climate Change; Clause 13.03 - 1S Floodplain Management; Clause 19-03S Integrated Water Management.
2. The Council then correctly identifies that the policies to be taken into account are to be determined by reference to the discretion required to be exercised. The Council submissions identify the question to be asked as:

The decision-maker should ask 'what is the purpose of that permission and what decision guidelines are to be taken into account in assess that permission?[25]

1. The Council then addresses the purposes of the General Residential Zone. It acknowledges that the first purpose must be read cognisant of the principle that the policies must be relevant to the discretion exercised and that policy is the servant not the master.[26]
2. The Council submits that the second purpose of the GRZ, to encourage development that respects the neighbourhood character of the area supports consideration of the policy provisions of clause 15.01 and in particular the strategy to "minimise the detrimental impact of development on neighbouring properties, the public realm and natural environment". The Council refers to the Flood report submitted on behalf of the applicant as evidence that the development will have a direct impact on neighbouring properties.
3. I am not persuaded that this reference to a single policy provision in State level policy tied to a broad purpose to encourage development to support neighbourhood character can be properly characterised as a policy which requires the consideration of flooding characteristics in the manner suggested by the Council. While I accept that a number of matters can affect the character of a neighbourhood, I do not accept that this purpose is intended to require consideration of technical flooding issues where other provisions exist in the planning scheme which, if triggered, would directly require consideration of this issue.
4. The Council then relies on the third purpose, to encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport. The Council submits:

The third purpose may allow further enquiries into the locations where a diversity of housing types and housing growth might be encouraged. Although, this will turn on the emphasis on locations offering good access to services and transport. Here, the use of particularly, if interpreted narrowly, could limit this to consideration of housing diversity and housing growth only in locations offering good access to services and transport. However, a better view, having regard to other aspects of the planning scheme and the operation of the GRZ and Clause 55, is that this is guided by any policy related to the location of housing and future urban growth (including infill development) in the Municipal Planning Strategy and the Planning Policy Framework.

• Therefore, the policies identified in the Responsible Authority's grounds for refusal may be engaged as relevant to the exercise of discretion relevant to the third purpose of the GRZ. That is, considering appropriate locations for a diversity of housing types and housing growth. [footnotes removed]

1. I find that this purpose does not engage the consideration of flooding as suggested by the Council. It appears that the Council suggests that this purpose supports the decision-maker engaging in a strategic planning exercise to identify where housing should be located. It is expected that this task would have been undertaken prior to the application of the General Residential Zone in this location. There may be other matters to be weighed against the current zoning of the land, but these will arise from planning discretions engaged by the planning scheme not from consideration of this purpose of the GRZ.
2. In any case, to the extent that this submission relates to considerations under clause 55 other than flooding those grounds are open to the Council to pursue.
3. The Council then submits:

It is further submitted, that the site has an obvious and known flood risk which has been identified and examined as part of the application process. Here, it ought to be open to the decision maker to consider the risk to life and property from flooding as is apparent from sections 4, 60 and 84B of the Act, and the relevant controls, policy and Clause 65 of the Scheme. It is submitted that the decision guidelines in Clause 64 and Section 60 of the Act are not too broad to incorporate. consideration of the policy/s under Clause 13.01 and 13.03-1S. In fact these policies enunciate the State dimension for incorporating natural hazards and climate change policy in Victorian planning schemes and decisions.

1. While the notion that these matters 'ought' to be considered may be attractive, the Council has not identified a basis in the planning scheme to support a conclusion the provisions of the Scheme engage a discretion to be exercised in relation to flooding.
2. I do not consider that the link required at the conclusion of the discussion of relevant authority at paragraph [53] of these reasons has been established.

1. The CMA's submissions are more confined. I have addressed each of its grounds in turn by reference to the submissions made.

1. I have addressed the CMA's grounds in three sections relating to the basis relied upon for each ground of review.

1. The CMA's first two proposed ground of appeal rely upon clause 13.01-1S. This is a state level policy provision relating to flood management.
2. As discussed at paragraphs [32] - [53], there is no basis to rely in clause 13 in the absence of a control, overlay or specific provision which triggers a permit requirement and discretion to which clause 13.01-1S is relevant.
3. In the absence of an identified provision which this policy can guide, clause 13 is not a relevant consideration in this matter as submitted by the CMA.
4. To approach this decision in the manner contended by the CMA is directly contrary to the approach identified by Quigley J in Brunswick Investment and directly contrary to the injunction that:

One must remain mindful that policy cannot operate as a control. The zones and overlays and particular provisions are the controls. They are the provisions which trigger a permit requirement, that is, they are the provisions which call up an exercise of discretion. Policies assist in the exercise of discretion when a decision is to be made, that is where a permit is required for a particular use or development.[27]

1. I find that the first two grounds relied upon by the CMA are misconceived and lacking in substance.

1. The third ground of review is that the proposal is not consistent with the principles and objectives from the Authority's Flood Guidelines: Guidelines for development of flood prone areas (2020) ('CMA 2020 Flood Guidelines').
2. In answer to the Tribunal's direction to the CMA to provide information as to the status of the CMA 2020 Flood Guidelines including whether that document has been adopted by the Minister, government department or public authority and whether it has the status of the documents under section 60(1A)(g) of the the PE Act, the CMA:

(a) Provided a copy of the CMA 2020 Flood Guidelines;

(b) Confirmed that the CMA is a public authority established under clause 11 of the Catchment of Land Protection Act 1994 ('Vic').

(c) Indicated the guidelines were adopted by the CMA Board at its Board meeting 268 in November 2019.

(d) Referred to a policy Use and Development within Floodplains Policy (Document 20/PL051) adopted on board meeting number 269 on 13 December 2019 which states:

Policy statement

For the purposes of clause 13.03-1S of the Planning Policy Framework this Policy has been adopted as a 'policy guideline' by the Board of the WGCMA in its role as the relevant floodplain management authority in the WGCMA Region and is to be used to guide decision-making on:

• permit applications triggered by the Planning and Environment Act 1987 for uses or developments which utilise or may have an effect upon land affected by flooding
• uses and developments which rely upon flood prone land for access

It applies to situations when WGCMA is a referral authority in respect of a planning application and also to situations when WGCMA makes a decision as to whether to object to a planning application.

This policy is also to be used to guide decision making for Flood Advice requests under Section 202 of the Water Act 1989 which may lead to future Planning Permit applications under the Planning and Environment Act 1987.

When making decisions regarding planning permit applications to which this policy applies, the WGCMA will seek to minimise the increase in flood risk, through the implementation of Floodplain

Management Best Practice. This includes applications for uses or developments in existing urban areas, in greenfield areas and in rural areas. The Authority also recognises the increased risk that Climate Change and potential sea level rise will pose on communities already exposed to flooding.

In accordance with the West Gippsland Regional Catchment Strategy and this policy, Floodplain Management Best Practice is to be implemented by applying the 'WGCMA Guidelines for development in flood prone areas'.

1. Provides details of the adoption of the West Gippsland Regional Catchment Management Strategy 2021 - 2027 and a letter dated 22 April 2022 from Hon Lisa Neville MP approving the West Gippsland Regional Catchment Strategy 2021-27 and anticipating its coming into operation when published in the Victoria Government Gazette.[28]

(e) Concluded:

Given the above, it is the WGCMA's view that the WGCMA Flood Guidelines - Guidelines for Development in Flood Prone Areas (2020) has status as a Policy Guideline under clause 13.03-1S Floodplain Management and has the status of a document to which section 60(1A)(g) of the Planning and Environment Act 1987 (Vic) applies.

(1A) Before deciding on an application, the responsible authority, if the circumstances appear to so require, may consider -

(g) any other strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council;

1. I have considered the terms of the CMA 2020 Flood Guidelines. No party has suggested that I can derive the relevant considerations in this matter from the terms of the guidelines themselves. I have not considered them for that purpose.
2. The CMA 2020 Flood Guidelines repeat policy provision from clause 13 and the generally applicable decision guidelines in clause 65 under the heading "Decision Guidelines" in an appendix. The appendix also lists decision guidelines for the UFZ, FO and LSIO and Practice Note 11 but not the SBO. They provide guidance as how to go about the task of considering flooding under relevant clauses. To the extent that they suggest that they can be engaged in the absence of discretion under a planning scheme, or legislation concerning building, planning or water regulation I do not consider that the interpretation of any of those legislative instruments can be dictated by the terms of the guidelines themselves.
3. I agree with the submissions of all parties that the CMA 2020 Flood Guidelines are a document which satisfy the requirements of section 60(1A)(g) of the PE Act and are a policy statement or guideline which has been adopted by a public authority.[29].
4. The documents provided by the CMA confirm its submission at the hearing that the CMA 2020 Flood Guidelines are intended to be policy guidelines to guide the application of clause 13 of the planning scheme.
5. As I have formed that view that clause 13 is not engaged in this matter in so far as it applies to flooding because there is no permit trigger which engages a relevant discretion, it follows that guidelines intended to guide decision making guided by clause 13 are not relevant for the purpose they are sought to be relied upon. Put another way, documents adopted to guide decision making under clause 13 cannot be independently considered to be relevant considerations in this case where clause 13 is itself not relevant.
6. It follows that I find that the G CMA 2020 Flood Guidelines are not a document which can be considered 'on the basis that the circumstances appear to so require' because in this case there is no permit trigger or control which requires or justifies this consideration.
7. Based upon the analysis set out above, I consider that I am bound to conclude that the guidelines are a policy document but that they are not a relevant consideration in the absence of a planning scheme provision which requires or allows them to be considered. To conclude otherwise would be contrary to the national trust principle as discussed in detail above.
8. I find that the third ground relied upon by the CMA is misconceived and lacking in substance.

1. I have considered the Planning Practice Note PPN11: Applying for a Planning Permit under the Flood Provisions. In a similar manner to the CMA 2020 Guidelines I accept that this document may well satisfy the requirements of 60(1A)(g) of the PE Act.
2. I agree with the Tribunal's decision in Jeremic v Whitehorse CC that a document which meets the criteria set out in section 60(1A)(g) does not need to be a document forming part of the planning scheme to be considered.
3. The CMA's use of that document is seek to treat it as a control which sets out decision guidelines which are required to be met. The CMA's 4th proposed ground of review states:
   1. The proposal is not consistent with the decision guidelines in the Victorian Planning Provision (VPP) Planning Practice Note PPN11: Applying for a Planning Permit Under the Flood Provisions, in that:
      1. It is not consistent with the PPF.
      2. It is likely to result in danger to the life, health and safety of the occupants due to flooding of the site.
      3. It relies on low-level access to and from the site.
      4. It is likely to increase the burden on emergency services and the risk to emergency personnel.
      5. It is likely to increase the amount of flood damage to public or private assets.
      6. It is likely to increase the number of buildings located in a floodway area.
4. As is to be expected PPN11 is worded so as to guide consideration of applications under the flood provisions. In several sections it is explicit as to what is required where particular provisions applies. For example, on page 5 it says in part:

Preparing a flood risk report

If a local floodplain development plan has not been incorporated into the planning scheme, a flood risk report must be prepared by the applicant if the land is in the UFZ or the FO and lodged with the planning permit application.

1. I agree with the observation of the Tribunal in Booth v Strathbogie SC referring to Victorian National Parks Association Inc & Anor v Southern Grampians Shire Council (2004) 16 VPR 98 at p 104[31]

[39] Section 60(1) of the Planning and Environment Act sets out matters which the responsible authority, before deciding on an application, must consider, and if the circumstances appear to require, may consider. As Hayne JA observed in Returned Service League of Australia (Victorian Branch) Inc, Glenroy Subbranch v Moreland City Council [1998] 2 VR 406, at 413: (1997) 19 AATR 07 @ 114:

Section 60 of the Planning and Environment Act is not easy to construe. At first sight the contrast drawn between matters which a responsible authority (and the tribunal on rehearing) "must consider" and those which it "may consider" "if the circumstances appear to so require" is stark and suggests a distinction between obligation and unfettered discretion. The nature and extent of the difference, however, may not be as obvious as that first sight might suggest. It is noted that subpara. (iii) of para.(b) refers to "any other relevant matter". It would be strange if a responsible authority had a completely unfettered discretion whether to consider a relevant matter before deciding on an application.

[40] In that case, the Court of Appeal held that the responsible authority is bound to have regard to the matters set out in subparagraphs (i), (ii), (ia) and (iii) of paragraph (b) of the subsection, if these matters bear upon any issue under consideration. ([1998] 2 VR 406, at 413 to 414.) In my opinion, the same logic applies to paragraph (a) of the subsection. The commandment that certain matters "must" be considered is, in my opinion, to be qualified by the proviso that the matter bear upon the issue under consideration. In other words, section 60(1)(a) of the Act is to be read as if it contained the words "if relevant to the application" or "if relevant" after the words "must consider". Thus the commandment that the responsible authority must consider all objections does not mean that an irrelevant objection (to take an extreme example, the applicant has red hair) must be considered.

1. In the present situation, I do not consider the planning practice note can be interpreted as a control or requirement of the decision guidelines which must be met or considered. It is a document a decision-maker may have regard to where there is a decision to be made but is not itself a basis for a decision.
2. I note that this does not mean that planning practice notes may not be considered in other circumstances where the decision required to be made can be identified and where the guidelines are relevant to that decision.[32]
3. I find that the final ground relied upon by the CMA is misconceived and lacking in substance.

WHAT WOULD HAVE HAPPENED IF AMENDMENT C144 HAD BEEN IMPLEMENTED?

1. The CMA in its submission to the practice day hearing refers to the genesis of its assessment of the 1% Annual Exceedance Probability (AEP) flood event it proposed to rely on in the following terms:

There is a known flood hazard at the subject property. The site is subject to inundation from Red Hill Creek during a 1% Annual Exceedance Probability (AEP) flood event. This information was obtained from the Neerim South Flood Study (2020). Planning Scheme Amendment (PSA) C144bawb proposed to implement this information in the Baw Baw Planning Scheme through application of the LSIO and FO to the site. However, the PSA was abandoned

1. The explanatory report for amendment C144 referred to by the CMA states:

What the amendment does

The amendment proposes to update the Land Subject to Inundation Overlay (LSIO) and Floodway Overlay (FO) maps within the Baw Baw Planning Scheme based on strategic flood and drainage assessments completed by Melbourne Water, WGCMA and Council officers.

More specifically, the amendment proposes to:

• Delete the Land Subject to Inundation Overlay on 1721 properties
• Delete the Floodway Overlay on 1160 properties
• Apply the Land Subject to Inundation Overlay on 4324 properties in accordance with updated flood mapping data from Melbourne Water and the WGCMA;
• Apply the Floodway Overlay to 1675 properties in accordance with the updated flood mapping data from Melbourne Water and the WGCMA
• Amend the Schedule to Clause 72.03 to update the list of planning scheme maps
• Amend the planning scheme maps accordingly.

The amendment applies the updated flood overlays to areas known to be affected by mainstream flooding during a 100-year Average Recurrence Interval (ARI) flood. The FO has been applied to areas that are likely to experience active flood flows and/or store floodwaters to hazardous depths, while the LSIO generally applies to areas that are subject to mainstream flooding but have a lower flood risk than areas in the FO. The LSIO may also apply to areas that are known to flood but where there is no information about flood depth, velocity and level of hazard.

The application of these updated overlays will assist Local Government, the Water Authorities and the community in carrying out more effective planning and management of land affected by flooding.

The FO and LSIO require that a planning permit be obtained from Baw Baw Shire Council prior to commencement of certain developments. Each planning permit application will be assessed on its merits, with the WGCMA or Melbourne Water acting as a Referral Authority to assist Council in the consideration of applications.

1. This planning scheme amendment would have applied the Flooding Overlay and the Land Subject to Inundation Overlay to the review site. The Council Officer's report depicts the impact on the review site as:

1. In those circumstances, a wide range of flood related polices, decision guidelines, guidance documents and considerations related to flooding would have been relevant to the permissions required for development on the review site.
2. The minutes of the Council meeting of 28 September 2022 record that the proposed amendment C144 was abandoned despite the recommendation of Council officers that it proceed to a panel hearing after the Council had heard from residents at the meeting.
3. The CMA confirmed at the hearing that the case it wished to run at the hearing was identical to that it would have run had Amendment C144 been adopted except that the status of the Neerim South Flood Study may have been less clear.
4. The situation which would have been in place had this amendment been adopted in a form which reflected what it was intended to achieve stands as a stark contrast to the situation where it has been abandoned by the Council.
5. This has not affected my analysis set out above.
6. It is however reasonable to record that the very matters the Council as responsible authority wishes to be considered are those which it declined to introduce into the Scheme in its role as planning authority under the PE Act. There is a process for amending a planning scheme. This is generally a public process. The requirements are set out in the PE Act.

1. Had I taken a different view of this matter and allowed the Council and the CMA to approach the matter on the basis each advocated for, that would have served to undermine the importance of ensuring that expectations regarding technical matters such as flooding are clearly set out in the planning scheme. To allow these matters to be assessed essentially on the basis of the work done for amendment L144 but without it having been tested or implemented would undermine the integrity of the planning scheme amendment process set out in the PE Act.
2. This decision ought not to be taken to undermine the importance of flood impact being considered where the risk has been demonstrated to exist and recognised in the planning scheme. Nor should it be taken to suggest that implementing such provisions is without practical difficulty particularly given the dynamic nature of flood risk which may change over time. It is, however, important that the requirements which apply to land are transparently identified in the planning scheme for the benefit of owners, purchasers and decisions-makers alike.
3. I am conscious that the applicant has not had its opportunity to demonstrate the merits of its flooding solution and that it is not protected from a change to the planning scheme. That is a further result of the absence of controls relevant to flooding on the review site.

1. On the basis of my findings, it follows that:
   1. The only planning permission required by the application is permission for the construction of two or more dwellings on a lot pursuant to clause 32.08-7 of the General Residential Zone;
   2. There are no relevant referral authorities under the Baw Baw Planning Scheme for this application;
   3. The CMA should not be joined to this proceeding as the grounds upon which it seeks to rely relate only to flooding which I have found is not a permissible ground in this matter. The CMA having indicated that it does not wish to be party to the consideration of matters under clause 55 and clause 53.18, it is appropriate that the application for joinder is refused; and
   4. I find that the Council is not permitted to rely upon grounds related to flooding in relation to this application. I give the Council leave to revise its grounds in accordance with these reasons to remove any reliance on flooding in grounds 1 and 4.

[1] 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.

[2] It is also subject to Development Contributions Plan Overlay - schedule 1 which does not impose any requirements for the application.

[3] The parties agree that these issues may be considered in accordance with clauses 55 and clause 53.18 of the Scheme and that these clauses do not cover the flooding issues which the CMA seeks to have considered.

[4] The CMA's explanation for the late submission of its grounds is that it initially erroneously identified itself as a referral authority on the Statement of Grounds lodged with the Tribunal. Essentially, having initially lodged the grounds on a basis which would not attract a fee, once the error was identified and attended to it had missed the date for paying the fee. For this reason, the Tribunal is required to consider whether it should be joined as a party to the proceedings.

[5] The hearing of the matter was adjourned by consent for reasons not relevant to this decision. At the commencement of the first Practice Day Hearing the Council foreshadowed that it would consider asking the Tribunal to refer this matter or an unidentified issue raised by this matter to the Governor in Council under clause 60 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Ultimately, prior to the reconvened Practice Day Hearing the Council informed the Tribunal that it did not intend to make that application or submission.

[6] The CMA stated that these guidelines could be considered under clause 13.03 but were not included in the Planning Scheme and did not assert that they could be considered independently of that clause.

[7] Which were provided in accordance with the Tribunal's orders. These submissions addressed the Tribunal's previous decisions in Crawford v Surf Coast SC [2013] VCAT 1660 (26 September 2013); Lindsay Holland Pty Ltd v South Gippsland SC [2018] VCAT 1408 (24 September 2018) Having considered each of the decisions raised by the CMA, I agree that it appears that the Tribunal has, on occasions, considered flood related issues in the absence of a flood related zones or overlays. Those decisions do not directly address the arguments put before me and I have not examined all of the planning scheme provisions which applied at the time each decision was made. I have considered each of these decisions but do not consider any of them to be of material assistance in analysing the matters I am required to decide in this matter particularly in view of the many more recent decisions of the Courts and Tribunal including Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 1191; Viva Energy Australia v Greater Geelong CC [2022] VCAT 326, Cinanni v Campaspe SC [2023] VCAT 797, Jordan v Baw Baw SC [2024] VCAT 444, Booth v Strathbogie SC [2023] VCAT 782 and Trickey v Mount Alexander SC [2024] VCAT 863.

[8] The permit applicant says that even though it did provide the Flood report it is entitled to argue that this was not necessary and that flooding related matters are not relevant considerations and to seek a ruling on this issue. I accept that proposition.

[9] In Strachan v LaTrobe CC [2024] VCAT 541 at footnote 9: Recent cases considering the correct approach to this issue referred to in that case were identified as: Clifftop at Hepburn Pty Ltd SC & Ors [2023] VCAT 201 (1 March 2023) ('Clifftop'); Booth v Strathbogie SC [2023] VCAT 782 (11 July 2023) ('Booth'); Viva Energy Australia Pty Ltd v City of Geater Geelong Council & Anor [2023] VSC 586 (10 October 2023) ('Viva Energy VSC'); at the time, the Notice of Appeal to the Supreme Court of Victoria from the decision of the Tribunal in Myers v Southern Grampians SC [2022] VCAT 695 ('Myers (Tribunal)') and then decision of the Supreme Court of Victoria in Myers v Southern Grampians SC [2023] VSC 658 ('Myers VSC)') was handed down on 16 November 2023. Also, the decision in Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 1191 ('Brunswick Investment') was raised.

[10] [2004] VCAT 20 at [46].

[11] For example, Shalit v Jackson Clement Burrows Architects Pty Ltd [2002] VSC 528 (2002) 12 VPR 329 Salmal Constructions Pty Ltd v Richards (1998) 99 LGERA 423, (1998) 22 AATR 339; Viva Energy Australia Pty Ltd v City of Greater Geelong Council (10 October 2023) [2023 VSC 586.

[12] Considered by Forbes J in Viva Energy Australia Pty Ltd v City of Greater Geelong Council (10 October 2023) [2023] VSC 586.

[14] [2023] VSC 586 at [66]

[15] Urban Floodway zone, Floodway Overlay, Land Subject to Inundation Overlay and Special Building Overlay

[16] Urban Floodway zone, Floodway Overlay, Land Subject to Inundation Overlay.

[17] See for example Jordan v Baw Baw SC [2024] 444 which concerned third party rights in a Farming zone, Booth v Strathbogie SC [2023] VCAT 782 which concerned bushfire planning.

[18] This clause requires compliance with certain design standards and provides discretions in relation to certain elements of application for two or more dwellings on a lot and residential buildings. This clause applies to this application but is not expressed to include considerations relevant to flooding. No submissions relied upon clause 55 in argument.

[19] This clause requires consideration of stormwater management in urban development and is relevant to this decision.

[20] I have not set out the text of all provisions of the Scheme or the PE Act but record that I have considered each of those referred to by the parties and in this decision.

[21] Excluding decision guidelines relating to subdivision and non-residential use and development.

[22] The Council and the applicant agreed that this provision related only to height and was not engaged here. The Council has not nominated the area as liable to flooding for the purposes of the Building Act 1993 (Vic.).

[23] Emphasis added to identify matters discussed in submissions.

[24] As set out in its prefiled submissions for the Practice Day Hearing at [15].

[25] By reference to Scoventure Pty Ltd v Yarra CC [2024] VCAT 1207 at [207]

[26] The Council cites Nasarella v Hobsons Bay CC [2024] VCAT 212 in support of this proposition.

[28] I was not provided with any submissions identifying how the West Gippsland Catchment Strategy 2021-2027 was to be considered in this matter.

[29] Which is defined in section 3 PE Act as 'public authority' means a body established for a public purpose by or under any Act but does not include a municipal council. I also accept for the present purposes that it has been sufficiently notified to meet the requirement of PE 2015 regulation 6.

[30] [2024] VCAT 992 at [20].

[31] [2023] VCAT 782

[32] For example, PPN11 and PPN12 were considered in AVC Operations Pty Lty v Maribyrnong City Council [2024] VSC 683 at [42] Harris J observed that the Tribunal has also accepted that the Department of Environment, Land Water and Planning (DEWLP) Guidelines for Development in Flood affected areas issues in were relevant in considering and amendment application. Applying for a Planning Permit under the Flood Provisions - Planning Practice Note 11 and Applying the flood provisions in planning schemes - Planning Practice Note 12 were considered to be relevant matters under section 60(1A)(g) of the PE Act at [150] and [154]; Glenelg Hopkins Catchment Management Authority v Moyne SC [2023] VCAT 1245 where the considerations before the Tribunal included land subject to both a Land Subject to Inundation Overlay and a Floodway Overlay.