Lot C (also known as 10) Fullarton Drive, Paynesville

15-16 March (Bairnsdale) and 7-8 July (Melbourne) 2011

Lake Park Holdings Pty Ltd v East Gippsland SC [2011] VCAT 1491

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

SK Spatial Land Surveying Consultants and One Plan Land Development Group

08023 PR-7 Proposed Subdivision Plan & 08023 ST-4 Proposed Staging Plan

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by including permission for native vegetation removal.
2. The decision of the Responsible Authority is affirmed.
3. In permit application 385/2010/P, no permit is granted.

Mr S Torrington, planning consultant of BP Town Planning Pty Ltd / One Plan.

• Mr W de Waard, traffic engineer of Traffix Group Pty Ltd;
• Mr W Bishop, civil engineer of Water Technology;
• Mr E Sjerb, environmental planner and natural resource management consultant of Ethos NRM Pty Ltd;
• Mr N Craigie, civil engineer and waterway management consultant of Neil M Craigie Pty Ltd; and
• Mr R Galbraith, arboriculturalist of Galbraith & Associates.

Ms R Albrecht, Mr P Albrecht, Ms S Watson, Mr D Morrison, Mr I Wickens and Ms L Wilkinson

The land is located within the northwest area of Paynesville township. It is approximately 10.7 hectares and is used for grazing purposes. It contains scattered native vegetation and one large old tree. It slopes down to and fronts the Gippsland Lakes Foreshore Reserve abutting the northern boundary of the land. This Crown land coastal reserve includes the Point Fullarton wetland and is part of the Gippsland Lakes Ramsar site. The land abuts existing residential subdivisions (and houses) along its southern boundary.

To subdivide the land into 82 lots with an average lot size of 819m2; to create a restriction limiting development on each lot to 7.5m above natural ground level; to remove 0.39 ha of native vegetation (3.6% of the land); to undertake earthworks including fill on lots and the creation of wetland; and to create a public open space reserve to be handed over to Council that includes the wetland.

Section 79 Planning and Environment Act 1987

Clauses 44.01-1, 44.01-2 & 44.01-4 To subdivide land, to remove vegetation and to carry out works in EMO

Clauses 44.04-1 & 44.04-2 To construct a building and to construct or carry out works, including a fence and to subdivide land in LSIO

Printz v Glenelg SC [2010] VCAT 1975 ('the Printz case')

1. This is an application by Lake Park Holdings Pty Ltd to review the failure by East Gippsland Shire Council ('the Council') to grant a permit within the prescribed time for an 84 lot subdivision of land at Lot C (also known as 10) Fullarton Drive, Paynesville.
2. The planning application was received by the Council in July 2010 and it then requested further information, which was received in August 2010. In September 2010, the application was publicly advertised and 100 objections were received. A planning consultation meeting took place in November 2010, but there was no consensus on the merits of the proposal. In December 2010, this application for review was lodged.
3. The application was considered at a Council meeting in February 2011, and it was determined the application would have been refused because:
   • The subdivision and removal of native vegetation is inconsistent with the relevant planning policies;
   • The subdivision design does not adequately respond to the constraints of the land;
   • The subdivision results in an unnecessary loss of native vegetation that will detrimentally effect the natural environment;
   • The future development will be visually dominant within the landscape;
   • A land locked reserve is proposed and the subdivision fails to provide adequate connectivity and a positive recreation and pedestrian outcome between the proposed reserves.
4. In February 2011, the applicant sought to amend the permit application plans by reducing the number of lots from 84 to 82, marginally increasing the amount of native vegetation to be removed and consequently the need to provide an offset and creating a larger public open space reserve along the northern boundary and abutting the coastal Crown land reserve. The public open space reserve would be increased from 15,235m2 to 22,430m2 and a minimum width in parts of 8 metres.
5. The amended plans also include two bioremediation basins, a stormwater treatment wetland and three walking paths connecting to the adjoining coastal Crown land reserve. During the hearing, it was revealed that the walking paths may require native vegetation removal and works within the coastal reserve, none of which have the land manager's consent or approval under the Coastal Management Act 1995[1]. Accordingly, Mr Torrington withdrew these walking paths from the proposal, stating that their inclusion may be the subject of separate approvals (as required) at a later date.
6. A significant change introduced in the amended plans was the proposal to fill the northern or lower portions of lots 6 to 8 and 31 to 47. Land filling was to occur over 14% of the overall site to elevate existing ground levels to 3.1 metres AHD. The maximum fill required for raising these lots would be 1.08 metres (lot 8) with an average depth of filling around 0.435 metres. Land filling was in response to mitigating the coastal hazard risks of storm tide inundation, catchment generated flooding and long term shoreline erosion projected between now and 2100[2].
7. Whilst the Council and other parties did not object to the substitution of the amended plans (other than Mrs Albrecht), they still had a number of concerns with the proposal. Mr Hollow advised us at the start of the hearing that the Council had decided to support the amended plans subject to a number of changes to address remaining concerns with the proposal[3].

1. In balancing all of the submissions and evidence presented, we recognise that, although the land is zoned for residential purposes, there is a need for the subdivision to appropriately respond to the conditions and constraints on the site. We find the design of the subdivision fails to appropriately respond to these conditions and constraints. Some of our particular concerns include the need to avoid development on low lying land, the impacts of future projected sea level rise and storm tides on coastal inundation, and the need to provide protection of the coastal wetlands associated with Point Fullarton. Whilst we are satisfied with some elements of this subdivision, our concerns have led us to conclude that no permit should issue for this subdivision. We will now explain the reasons why we have reached this conclusion.

1. This land (known as Lot C or 10 Fullarton Drive) was created as part of a larger residential subdivision in the 1980s. The land to the south along Fullarton Drive has since being developed with houses, many of which are occupied by the residents who appeared before us during this hearing.
2. Much of the land to the south-west, south and south-east of the site has been developed for residential purposes. To the west is farming land and to the north is a coastal reserve described by the Gippsland Coastal Board as Point Fullarton, which is part of the Gippsland Lakes Ramsar site.
3. This Ramsar wetland provides habitat for a number of species listed under the Japan-Australia agreement on migratory birds (JAMBA) and the China-Australia agreement on migratory birds (CAMBA) and/or listed under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Hence, we agree with Mr Sjerb's evidence where he described this wetland of being of international significance.
4. The Council explained the land has been zoned Residential 1 since the 1980s and Mr Torrington suggested this zoning was found to be appropriate as part of the recently approved Amendment C68 to the planning scheme. We are not persuaded by this as the Council explained the amendment did not specifically review the appropriateness of existing residentially zoned land in Paynesville. Rather, the urban design framework contained in Amendment C68 looked at broader issues, including land supply and the planning controls required to deal with future urban growth.
5. Hence, much of the submissions and evidence presented during this case focussed upon the site specific challenges associated with developing this parcel of residentially zoned land. The starting point for our consideration of the merits of this proposal is the reasons why planning permission is required. These reasons are spelt out in detail in the Information section at the start of this decision and, in simple terms, planning permission is required for the subdivision of this land under the Residential 1 Zone, the Erosion Management Overlay, the Design and Development Overlay and the Land Subject to Inundation Overlay. Each of these planning controls have specific matters that need to be considered in addition to the general decision guidelines for subdivision at Clause 65 that include:
   • The suitability of the land for subdivision.
   • The existing use and possible future development of the land and nearby land.
   • The availability of subdivided land in the locality, and the need for the creation of further lots.

1. This brings us to the first issue that we wish to deal with, being the availability of subdivided residential land in Paynesville and the need to create further lots. The residents submitted there are enough residential lots to satisfy demand up to 2028, or even to 2031. Indeed the residents highlighted there have been a number of subdivisions that have been slow on the uptake and they questioned whether this subdivision would be any different. They stated "the clear evidence is that currently there is no need for further lots".
2. We agree with the residents that there are ample residential allotments available within Paynesville and this is a relevant factor for consideration as part of the merits of this proposal. However, we do not agree that this fact should mean there can be no further lots approved at this time. We note Mr Torrington's submission that local market conditions are complex and can be difficult to read and that his client has a differing opinion of demand and future sales. However, this is just an opinion and one that is contrary to that of the residents. Whilst 'need' is a consideration, we were not presented with any evidence by any of the parties to demonstrate that there is, or is not a need. At the end of the day, it is not uncommon for Councils and the Tribunal to issue permits for land uses and development that never proceed. Ultimately, it is up to the market to determine whether there is a need for the approved land use and development.
3. The facts of this matter are that the land is zoned residential and is contained within the township boundary of Paynesville. As such, a subdivision for residential purposes is entirely consistent with both the zoning of the land and the local planning policies that guide the future growth of Paynesville. The key issue for our consideration is what form should the subdivision take having regard to the features of the site and surrounds, and the policies and planning controls in the planning scheme. In considering this issue, the availability of subdivided land in the locality and the need to create further lots is relevant. If there was a strong demand or need for further residential lots within Paynesville, then the balancing of the various, and often competing, planning policies may not be of a sufficient weight to "tip the scales" against approval of a new subdivision. For example, policies relating to erosion and native vegetation protection may not tip the scales against a proposed subdivision when balanced against a strong need for further residential lots.
4. In this case, we agree with the residents there are ample residential allotments available within Paynesville. This means we are of the view there is no identifiable demand or need for further residential lots within this area of Paynesville. Our views on this are reinforced through the number of vacant lots evident during our inspections; and the fact that this proposed subdivision is broken into four (4) stages. Given there is no identifiable demand or need, we find there is no imperative to create the number of lots proposed in a layout that places some of them in positions of constraint or risk. We find some of the lots impinge on the environmental attributes of the site and adjacent land, and some are affected by hazard risks associated with future impacts from projected sea level rise on flood processes, the Gippsland Lakes and the Point Fullarton wetlands in particular.

State Planning Policy Framework and Coastal Planning

1. The first purpose of the Residential 1 Zone and each of the overlay controls that apply in this case is to implement the State and local planning policies in the planning scheme. Mr Torrington referred to the need to ensure a sufficient residential land supply, orderly planning, the management of coastal impacts of climate change, the protection of life and property from flood hazard, the supply of housing and encouraging housing developments as well as catchment planning and management. These are all aspects that are included under the State Planning Policy Framework. However, we are of the opinion that there are other State planning policies that are also of particular relevance to this application.
2. There are a number of principles to be applied to settlement planning in Victoria including siting and designing new dwellings and subdivisions to minimise risk to life, property, the natural environment and community infrastructure from natural hazards such as flooding[4]. In regard to coastal settlement[5], the State planning policy objective is to plan for sustainable coastal development. The strategies to achieve this include:

Avoid development on ridgelines, primary coastal dune systems and low lying coastal areas.

1. The above State planning policy strategy and the 2008 Victorian Coastal Strategy (VCS) both seek to avoid development on low lying coastal areas. However, neither provides a definition of "low lying". Mr Torrington and Mr Hollow submitted low lying is the area of this site that is subject to flooding, both now and in the future due to projected sea level rise. They agreed that the land is subject to flooding and that the flood level is likely to increase due to the effects of climate change.
2. Mr Torrington pointed out the highest flood level recorded by the East Gippsland CMA thus far on this site occurred in 2007 at 1.49m AHD. We note the Coastal Hazard Vulnerability Assessment prepared by Water Technology indicates that the 1% AEP storm tides driven by ocean effects shall raise the water levels of Lake King to 1.82m AHD, inundating the proposed public open space reserve to approximately 2.0m AHD and that the projected 2100 1% AEP catchment flood level shall raise the lake levels to 2.8m AHD. This would inundate the proposed reserve and the bottom 10-12 metres of lots 31 to 47 with up to 700mm of floodwater. Mr Torrington pointed out that 73% of the site would be free of inundation and 14% of the site is proposed to be filled.
3. For this site, this means the low lying coastal area is the area below 2.8 metres AHD. It would appear the Gippsland Coastal Board would concur with this given Ms Vasey-Ellis suggested, if a permit is issued, development should not be permitted below the future flood level of 2.8 metres AHD.
4. In our determination of this application, we therefore proceeded on the basis that the location of this site is to be characterised in this way, i.e. as a site that is located, in part, on a low lying coastal area. We find this part of the site is a location where State planning policy and the VCS would generally seek to avoid development.

1. The VCS identifies that some of the impacts from storm tides associated with sea level rise will be enhanced coastal flooding and inundation of property and infrastructure including inundation of low lying areas and damage to coastal vegetation and habitats. An impact highlighted by Mr Bishop was the influence on coastal processes and changes to shoreline geomorphology. The VCS notes that natural barrier features such as the coastal wetlands, which normally would protect shorelines against erosion by storms and waves are likely to be affected by rising sea levels.
2. The Municipal Strategic Statement (MSS) at Clause 21.02-3 Municipal Profile under Lakes & Coastal acknowledges that areas of East Gippsland Shire are vulnerable to undesirable environmental impacts from development. Hence, the MSS acknowledges there is a major challenge to balance development pressures against the need to protect sensitive environments and high landscape value areas. The MSS acknowledges threats to estuarine ecosystems due to changes to salinity, sea-level rise and loss of vegetation on the coastal fringe. It also recognises impacts of climate change that need to be considered in coastal planning including progressive inundation of low-lying areas, increased frequency and severity of storm surge events, and consequential damage to beaches, public infrastructure and private property.
3. The VCS highlights the need to adapt to climate change risks and impacts and provides three adaptation options:
   • protect (protection of beaches, dunes and infrastructure; land use and development)
   • accommodate (planning and building policies and provisions, redesigned and rebuild)
   • retreat (relocation of infrastructure, land use and development)
4. The Gippsland Coastal Board expressed great concern about the proposal to fill the lower parts of this site (approximately 20 lots) in order to raise them above the level of the combined 1:100 year flood and the current projected sea level rise and storm surge by 2100. Ms Vasey-Ellis submitted:

In our view, this is an example of 'maladaptation'.

1. The Gippsland Coastal Board went on to state the expenditure and risks associated with filling part of the land appears to be out of proportion to the costs of the alternative, being to redesign the subdivision to ensure that no land below 2.8 metres AHD is included within lots being proposed for development. In response, Mr Torrington submitted the average fill proposed is 0.435 metres and highlighted Mr Bishop's evidence that the storm tide at 2100 (1.82 m AHD) is unlikely to directly impact the proposed development. Mr Bishop's opinion is that the combination of this likelihood and consequence of the coastal inundation hazard is expected to be negligible by the end of this century. Understandably, Mr Bishop is unable to say with any certainty what the future coastline will be, i.e. what, if any, of the wetland will remain. This, in turn, can have an impact upon the wave energy, which Mr Bishop described as low now but with the potential to increase as lake water levels rise.
2. The objective for coastal inundation and erosion under State planning policy is to plan for and manage the potential coastal impacts of climate change. The strategies include:
   • planning for sea level rise of not less than 0.8 metres by 2100;
   • applying the precautionary principle to planning decision-making when considering the risks associated with climate change;
   • ensuring that new development is located and designed to take account of the impacts of climate change;
   • ensuring that land subject to coastal hazards is identified and appropriately managed to ensure that future development is not at risk; and
   • avoiding developments in identified coastal hazard areas susceptible to inundation, erosion, landslip/land slide, acid sulfate soils and geotechnical risk.[6]
3. We find the applicant's proposal of adaptation to effectively meet the identified future risk via land filling is an inappropriate response. In our opinion, the proposal to fill part of the land is modifying the natural environment to fit the development. We are of the view this is contrary to the policies in the planning scheme and the VCS.
4. Another form of impact with increased coastal inundation, particularly on the interface between the land and the coastal Crown land reserve, are changes to the shoreline environment brought about from the effects of a rise in lake water levels influenced by sea level rise. We consider that the proposal to fill the lower lying portions of Lots 6 to 8 and 31-47 that are identified as being at risk of flooding, influenced by the effects of projected sea level rise, represents a poor response to shoreline and vegetation changes that may occur as an adaptive response.
5. Notably, we understand that the shoreline of Lake King and the coastal wetland vegetation communities of Point Fullarton will be impacted by increased inundation. Changes to the location and shape of the Lake King shoreline are expected to occur with progressive erosion towards and beyond the boundary between this site and the coastal Crown land reserve. Likewise, the location of the estuarine swamp scrub and coastal saltmarsh vegetation communities will change with the possible replacement of the estuarine swamp scrub vegetation with coastal saltmarsh which, in turn, will seek to migrate landwards as an adaptation response to rising water levels and saline water intrusion from Lake King.
6. With regards to these effects, we consider the combination of the placement of fill material and the location of the stormwater treatment wetland between the land fill and the coastal Crown land reserve boundary results in a narrowing of the proposed public open space reserve and the reduction of any viable buffer. This will have the effect of limiting adaptation processes of the vegetation communities of Point Fullarton and a failure to avoid future impacts on environmental values of the Gippsland Lakes. Our views are consistent with the findings in the Printz case where the Tribunal stated at paragraph 83:

.....we note that the policies contained in the VCS call for caution in allowing development in coastal spaces, in part so that the future ability to apply adaptation strategies are not compromised and in part so that planning can respond to the best available and emerging science and monitoring about climate change impacts. In short, if development can be avoided in areas that are vulnerable, this is a more orderly planning outcome.

1. We find there should be no development below 2.8 metres AHD. As there is strong emphasis in the State planning policies about development in proximity to coastal hazard areas and applying the precautionary principle, we are of the view it would be preferable to avoid the creation of residential lots that are below 2.8 metres AHD. This will avoid impacts from a 2100 projected 1% AEP flood event and safeguard longer term environmental impacts.
2. We have come to this view having regard to the reference under policy to plan for a sea level rise of not less than 0.8 metres by 2100 and to apply the precautionary principle, which is supported by the findings in the Printz case where the Tribunal stated:

... We interpret such an express term to mean that the door has been left open for the consideration of a sea level rise greater than 0.8 metres. The State planning policy refers to both not less than 0.8 metres and applying the precautionary principle. Again, this suggests the door has been left open for consideration of a sea level rise greater than 0.8 metres. Whether that is appropriate will depend upon the circumstances of the particular site, the nature of the proposal and the scientific information available at the time.

1. The scientific information available to us from Mr Bishop does not suggest it is necessary to consider a sea level rise greater than 0.8 metres in this case. However, the nature of the proposal and the circumstances of the particular site have led us to conclude that a buffer is an appropriate tool to limit the potential effects of sea level rise on private property. In the Printz case, the site had a higher degree of protection due to the significant dune system. In contrast, part of this site is low lying land with no buffer other than either fill or a retaining wall. Hence, we find a buffer is necessary - that is a buffer that extends above the 2.8m AHD projected catchment flood level. We cannot make any findings as to what an appropriate buffer distance is, or as to what form the buffer should take, as this is not a matter that was discussed during the hearing. It is a matter, that will need to be determined as part of any subsequent planning application.
2. Based on the proposal, the implication of our findings is that lots 8 and 31-47 are not appropriate and lots 6 and 7 would need modification (possibly consolidated on land above 2.8 metres AHD). We have considered whether we could impose permit conditions to deal with these changes to improve the response of the subdivision design to the condition of the land and its setting. However, given our finding that a buffer is needed and that it may require further consideration in terms of design and layout of any modified subdivision, including expert input, we have decided that the most appropriate course of action is to refuse this proposal. We consider this allows for a fresh application to be made whereby a new detailed design can address our concerns with the benefit of our consideration of the other matters to follow.

1. We have found that although the land has some opportunity to be subdivided for residential purposes, the design response of the subdivision is inappropriate particularly in terms of how it addresses planning policy about avoiding low lying coastal areas. As a result, to overcome these design deficiencies the subdivision would require a significant variation. Based on the plan of subdivision before us up to 20 lots would need to be deleted; the width of the proposed public open space reserve would need to be increased; and lots at the western end of the subdivision may require redesign to enable the increase in reserve width. These last two changes are matters that we will explain in this section of our decision.
2. The extent of change required for the subdivision to overcome its design shortfalls may be quite significant. Hence we have provided the following comments and findings about other design issues raised by the parties to assist in the preparation and consideration of any subsequent planning application.

1. The residents expressed concern that lots 31 to 47 are not appropriate adjacent to the proposed public open space reserve. They submitted that the layout of the lots is not compliant with State planning policy or standards C13 and C10 in Clause 56 of the East Gippsland Planning Scheme. These standards relate to the street orientation and the relationship between private land and public land. For example, C10 focuses upon street orientation, in particular to increase surveillance by avoiding the side and rear of lots along public open space.
2. Hence, the issue we need to consider is the interplay between lots and public open space. We are of the view there is a presumption within this standard that the side and rear of the lots will contain solid fencing and therefore a lack of integration with the public open space. This is understandable as, generally speaking, there are concerns about property security and personal safety. However, due to the northern outlook towards Lake King we are not persuaded solid fencing would be the outcome here, particularly for the rear boundaries of lots.
3. It was discussed during the hearing that the rear fencing is likely to be transparent so that properties can enjoy the views, and the Council supported this as it would provide community interaction and surveillance of the public open space. We have no concern with the side of a few lots, such as lots 34 and 35, having solid fencing. The extent of solid fencing will be relatively limited, and in our view will not have an unreasonable detrimental impact upon the adjacent public open space. Hence, we do not share the residents' concern and this is not a reason why we would refuse this application. However, given our previous findings, we note it might be possible to redesign the subdivision layout to avoid lots backing onto the public open space reserve.

1. With respect to the proposal to construct a stormwater treatment wetland within the proposed public open space reserve, our finding that the lots proposed to be filled lying adjacent to the reserve must be replaced with a suitable buffer means that there will be greater land available for the reserve, including the wetland and associated distribution swales. We consider this a good outcome as there will be greater opportunity for the location and design of the wetland. Mr Craigie's evidence acknowledged the soil conditions are likely to include potential for tunnel erosion and acid sulfate soils. As such, he suggested the detailed design phase of the wetland may result in some modifications to the layout in order to minimise any risks or potential problems associated with the creation of the wetland. Again, a greater setback to residential lots, with a buffer above the 2.8m AHD future flood line creates greater opportunity for the siting and design of the wetland.
2. In response to our request toward the end of the hearing, Mr Torrington provided us with a cross-section of the proposed wetland that reveals an intention to fill on both the north and south sides. In our opinion, the potential to increase size of the public open space reserve lessens, or perhaps removes, the need for filling around the wetland. Indeed, there may only need to be minimal excavation to create a shallow wetland.

1. The Council requested during its submission that the public open space reserve adjacent to the Ramsar wetland have a minimum width of 15 metres, however the proposed subdivision has some lots located a minimum of 8 metres from the Ramsar wetland boundary. Given the sensitivity of this area, we agree with the Council that a 15 metre minimum setback would be a more appropriate distance between the Ramsar wetland boundary and any allotments. This may mean the western lots will need to be modified in size and, perhaps, the road alignment changed. This will also mean the deletion of lots 47 to 49, however we are of the view it may be possible to have one lot located in part of the proposed road area (which is larger than necessary adjacent to lots 48 and 49) and part of the proposed lots 48 and 49. The creation of this 15 metre minimum setback is also another reason why we are of the opinion lot 7 should be deleted and lots 1-6 reconfigured, which may mean the remaining lots are all over 500 square metres.

1. With respect to native vegetation, Mr Sjerp described the land as almost entirely cleared of native vegetation and currently used for agricultural grazing of introduced pasture grasses. Remnant vegetation on the land comprises scattered regrowth of young native species and older saplings in sections of the land, a single large old tree and isolated patches of remnant native grasses.
2. In terms of a habitat hectare analysis, Mr Sjerp gave evidence the land contains a total of four habitat zones of regrowth Plains Grassy Woodland (EVC55) and Estuarine Swamp Scrub (EVC53_62), which were all small in size and highly modified from grazing and slashing. These EVCs are identified as endangered within the Gippsland Plains Bioregion resulting in a classification of High Conservation Significance in accordance with Victoria's Native Vegetation Management: A Framework for Action (Native Vegetation Framework). These habitat zones are located close to Burden Place to the east or near the northern boundary of the land adjacent to the native vegetation found within the coastal Crown land reserve. The total area of native vegetation proposed to be removed was estimated by Mr Sjerp to be 0.39ha requiring an offset of 0.15 Habitat Hectares of High Conservation Significance vegetation.
3. We note the presence of Plains Grassy Woodland and that of the Gippsland Red Gum (Eucalyptus tereticornis susp. mediana) aligns with the listing of Gippsland Red Gum Grassy Woodland and Associated Native Grassland as a nationally threatened ecological community under the EPBC Act.
4. In terms of the impact of the proposed subdivision on native vegetation, we are cognisant that our findings identify an opportunity for an increase in the size of any public open space reserve and increased opportunities for the layout and design of the stormwater treatment wetland and associated swale(s) (having regard to Mr Craigie's evidence). This, in turn creates an opportunity to retain greater amounts of existing vegetation. Our findings relating to native vegetation are:
   • The vegetation loss on lots 1-3 is acceptable, primarily due to the lower value of the vegetation in the area close to Burden Place compared to the higher quality vegetation found along and over the boundary between the land and the coastal Crown land reserve.
   • The need for native vegetation removal should be avoided from Lots 7, 8, 47 and the wetland area because of the deletion of these lots and the potential to increase the width of the public open space reserve and, hence, the opportunity to locate the wetland away from vegetation areas.
5. The benefits of reducing the amount of native vegetation to be removed also has 'flow-on effects' by reducing the offset requirements and therefore resulting in a significant environmental benefit because the impacts can be greatly reduced. We consider there are also improved opportunities for vegetation migration, greater public open space and improved water quality.

1. The design incorporates the one remaining tree in the existing paddock that covers this site. However, the residents and the Council expressed concern about the proximity of the residential lots on either side. The residents specifically highlighted the 'failure' to comply with the DSE guideline for a 40 metre buffer distance.
2. We agree with Mr Galbraith's evidence about the changes that should be made to the subdivision layout to provide an appropriate buffer to this tree. However, given our finding about the northern lots it may well be that the issue about the need for tree protection evaporates.
3. Irrespective of the above, we are cognisant of Mr Galbraith's recommended setbacks from the trunk of the tree, based on the subdivision plan before us and consider them appropriate. There was some concern raised about the proximity of a proposed pedestrian path and drain to this tree and Mr Craigie gave evidence they can be easily re-positioned. We find the drain should be relocated elsewhere, outside of this section of the reserve all together; and the path should be constructed in accordance with Mr Galbraith's recommendations.

1. Mr Morrison highlighted the importance of considering the proposal in light of both the neighbourhood and landscape character. He described this proposal as essentially an infill development on sloping and partly flood prone land. He pointed out that 49 out of the 82 lots are wedged between existing houses and the Lake King coastal reserve.
2. Mr Morrison described the existing neighbourhood character as having an average lot size of just over 800m² and a significant proportion of single storey dwellings with some split level dwellings. He submitted the design of these dwellings has resulted due to the 4.5m height restriction contained in the existing covenant affecting some of the properties in Fullarton Drive. The key issue associated with neighbourhood and landscape character was about the potential loss of views towards Lake King as a result of the development of the proposed lots.

1. The Council explained DDO14 contains no reference to the sharing of views but submitted that this could still be achieved through the incorporation of appropriate building envelopes in the subdivision. The Council did acknowledge that the lack of any reference to the sharing of views in the planning scheme limits the amount of weight that can be given to this issue in considering the planning merits of this proposal. Nevertheless, we appreciate the Lake King views form part of the amenity of the residents properties.
2. The residents are of the view the density of the proposed lots and the nominated 7.5m[7] maximum height is too high. The residents suggested the building height should be limited to 4-6m. Ms Watson elaborated on this by providing a series of cross-sections showing the implications of a 7.5m height on the sloping land. She submitted the height should be restricted at a fixed point rather than at any point on each lot and suggested a 5m height limit should be imposed. We are not persuaded that a general building height should apply as this does not do justice to the varying levels across the site and the variation in the interfaces between existing lots and proposed lots (as they do not match up throughout the subdivision).

1. The Council also described the site as visually prominent from a number of locations including the Gippsland Lakes, the foreshore reserve, Burden Place, Eagle Bay Terrace and Fullarton Drive. Mr Torrington tabled photographs of the site taken from a boat in Lake King to show the current onshore residential development conditions. These images demonstrated to us that, irrespective of height controls that may be applied over this subdivision, impacts from residential development are, and will continue to be, evident from the lake because of the extent of existing development that has and is continuing to occur. There is still to be further development of vacant lots along Eagle Bay Terrace, and we consider they will be dominant. Mr Torrington described this situation as one in which "the horse has bolted". We are not persuaded by this. We accept this is currently the situation, however we consider there is some merit in more carefully reviewing the lot layout of the subdivision in any future new application.

1. We are of the view the layout of the subdivision should consider lot orientation and size coupled with three dimensional building envelopes. This may provide scope to avoid new buildings dominating the view from the lake, while concurrently providing some opportunities for reasonable view sharing for the existing development behind to the south, specifically in Fullarton Drive and Eagle Bay Terrace.

1. Mr Wickens submitted the additional traffic generated from the proposal would create unsafe traffic conditions. These impacts would be most felt at the intersections of Burden Place and Paynesville Road, Burden Place and Fullarton Drive, and along Fullarton Drive itself. He questioned the appropriateness of this land for further residential development given the lack of public transport in Paynesville.
2. Mr de Waard gave evidence there are 156 lots including 125 dwellings present within the area that utilises the road network up to the Burden Place and Paynesville Road intersection. He stated the intersections have ample capacity to support the increased traffic generated by this proposal. In fact, in response to Mr Watson's cross-examination Mr de Waard stated the intersection is capable of up to a 400% increase, that is four times the current levels. Mr de Waard's evidence was provided to VicRoads after the first two days of the hearing, and the Tribunal received advice VicRoads is no longer seeks the inclusion of a condition requiring further engineering analysis of the operation of the Burden Place and Paynesville Road intersection.

1. A further concern was the safety of pedestrians and elderly persons using small motorised vehicles. This concern is, in part, a reflection on the fact that there are very few footpaths in and around Paynesville. We agree with the residents that in order to travel to Paynesville township from this site, it would be necessary for much of the journey to occur on, or at the shoulder of the existing road network. This is a safety issue, but it is an issue that is broader than just relating to the development of this site. It is a matter that VicRoads and the Council (as the relevant road authorities) need to consider as Paynesville continues to develop. It is not a reason why this application should be refused.

1. The subdivision layout includes roads that end without court bowls. The residents expressed concern about the appropriateness of garbage trucks turning around in these locations. Mr de Waard explained it occurs now in the current form of Fullarton Drive, and a garbage truck will be able to turn around using the driveway as proposed by this subdivision if they are constructed to an industrial standard and are widened beyond the typical driveway width. We make no finding on this issue as there are a number of aspects to the subdivisional layout that need to change. This is a matter of detail to be considered as part of any future planning application.

1. Overall, we find that the land can be subdivided but the proposed layout and design is not appropriate for the reasons we have already explained.
2. We did consider the possibility of specifying a number of conditions to seek changes to the subdivision plan to overcome the failings of the design response to the conditions and constraints of the land and its setting adjacent to the Gippsland Lakes. However, we found that the number of changes were so significant that it would fundamentally change the nature of the proposal before us. Hence, we have decided the proposal should be refused. We hope that our reasons will be of assistance to all parties in considering the merits of a new application with, what we hope will be, a design that better responds to the characteristics, constraints and setting of this land.
3. On this basis, we have decided that no permit should issue for the subdivision.

[1] Section 61(3)(a) of the Planning & Environment Act 1987 states the Responsible Authority (and, upon review, this Tribunal) must not grant a permit to use or develop coastal Crown land within the meaning of the Coastal Management Act 1995 unless the Minister administering that Act has consented under that Act to the use or development.

[2] The projected 1% Annual Exceedance Probability (AEP) flood level to 2100 is 2.8m AHD

[3] Despite the Council's decision to support the amended plans subject to changes, this application for review is deemed to be a refusal pursuant to section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

[4] Extract from clause 11.05-4, page 19 of 21

[6] Refer to clause 13.01-1 of the State Planning Policy Framework

[7] There is a reference to a permit trigger under DDO14 to buildings above 7.5m in height