RESPONSIBLE AUTHORITY: Yarra Ranges Shire Council

RESPONDENT/Permit Applicant: Leighton Contractors Pty Ltd

DATES OF HEARING: 15, 16, 17, 18 and 19 January 2001

1. Application for Review 2000/075953 is allowed in part.

2. Application for Review 2000/079100 is not allowed.

3. The Responsible Authority must issue a permit for:

(a) Winery and Major Tourist Facility with associated carparking and landscaping (including the construction of dams) and to include in the use of the facilities the supply sale and consumption of liquor pursuant to a general licence, a producers licence and an on-premises licence for a restaurant(s) under the Liquor Control Reform Act 1998 and including such extended hours of trading as the Director of Liquor Licensing may approve and for associated signage and vegetation removal and for a dispensation from the car parking requirements of the planning scheme.

with the conditions contained in Part 4 of this order.

1. Prior to the commencement of the permitted use/development, an amended plan(s) based on the siting of the major tourist accommodation building 70 metres from the western boundary shall be submitted for approval to the satisfaction of the Responsible Authority showing:

(a) Right and left turn lanes in Yarra Glen/Healesville Road at each entrance to the site as required under this permit.

(b) Existing and proposed lane widths along Yarra Glen/Healesville Road; and

(c) Internal vehicular connection between the winery access and the main entrance.

(d) Siting of the major Tourist Accommodation building and general site layout generally in accordance with the landscape plan required under this permit.

(f) Car parking layout and details of construction, surfacing and drainage of car parking areas.

(g) Details required under this permit for the design and location of all dams.

(h) Planting of (non-deciduous) trees in front of the winery building (in accordance with Condition 18).

When approved the plan(s) shall be endorsed to form part of this permit.

2. The layout of the site and the size of any proposed buildings and works shown on the endorsed plans shall not be altered or modified without the written consent of the Responsible Authority.

3. The use of the major tourist facility must at all times be in association with the use of the land for winemaking and/or agricultural purposes to the satisfaction of the Responsible Authority.

4. The permitted development must commence within 2 years of the date of this permit, and be completed within 3 years of the date of commencement.

5. The external cladding of all buildings including the roof shall be generally in accordance with the Architects (N. Karalis) statement to the Victorian Civil and Administrative Tribunal hearing application 2000/75953 and 2000/79100 and be constructed of non-reflective materials of subdued colours to enhance the aesthetic amenity of the area.

6. Prior to the occupation of any works under this permit a signage schedule shall be submitted to the Responsible Authority. The signage schedule shall show any proposed signs and the location, size, illumination (if any), colour and wording of all proposed signs. When approved the schedule shall be endorsed to form part of this permit and shall not be altered or modified without the written approval of the Responsible Authority.

7. No sign other than as shown on the endorsed plan shall be erected on the site, within the adjacent road reserve, or affixed to the exterior of any building on the site without the further written consent of the Responsible Authority.

8. The permitted sign(s) shall not be illuminated by flashing lights and shall not be illuminated internally or externally unless it is authorised by the advertising schedule forming part of the endorsed plan or unless it is agreed to in writing by the Responsible Authority.

9. The permitted uses shall be provided with the following services to the satisfaction of the Responsible Authority:

(e) Mains natural gas supply if and when it is available to the site.

All liquid waste from any of the uses allowed under this permit must be discharged to a reticulated sewerage system to the satisfaction of Yarra Valley Water.

10. The use of the permitted buildings shall not cause any nuisance to persons on adjoining land by reason of electrical interference, vibration, noise, odour, fumes, liquid waste or airborne pollutants.

11. Any roof top plant or equipment must be positioned and/or screened from public view to the satisfaction of the Responsible Authority.

12. The provision of lighting in and around the development and uses allowed by this permit shall be in accordance with the lighting mitigation strategy detailed in the Bassett Consulting Report, dated August 2000 to the satisfaction of the Responsible Authority. This report will form part of the endorsed plan. In addition, signs must be erected to the satisfaction of the Responsible Authority directing drivers not to use the high beam of their vehicles when using the driveway and exiting the site.

13. No external lighting other than that shown on the endorsed plans shall be provided to the site without the written consent of the Responsible Authority.

14. All external lighting provided on the site shall be baffled so that no direct light is emitted beyond the boundaries of the site and no nuisance is caused to adjoining properties to the satisfaction of the Responsible Authority.

15. No external sound amplification equipment, loud speaker, siren or other audible signalling device shall be installed on the land and no amplified music shall be played outside the buildings without the prior written agreement of the Responsible Authority.

16. The areas of land not occupied by buildings shall be maintained in a clean and tidy condition to the satisfaction of the Responsible Authority.

17. Prior to the commencement of the uses allowed under this permit the titles to the subject land, consisting of Lot 1 PS 129406 and Lot 2 LP 203667A, shall be consolidated to the satisfaction of the Responsible Authority.

18. Prior to the commencement of any works a Landscape and Site Environmental Management Plan shall be submitted to, and approved by, the Responsible Authority. When approved the plan(s) and planting list shall be endorsed to form part of this permit.

The Landscape and Site Environmental Management Plan will provide for the landscaping and environmental management of all land not used for buildings, car parking, storage or access roads and paths, and vineyards. The plan shall be generally in accordance with the landscape concept plan prepared by Chris Dance Land Design Pty Ltd dated and shall provide the following information to the satisfaction of the Responsible Authority.

(a) List numbers, plant sizes and species of all trees, shrubs and ground covers to be planted, and the purpose (screening - environmental enhancement - landscape features) of the proposed plantings; and

(b) Provide details of the environmental management of the site, both during and after construction, and shall deal with such matters as enhancement of waterways and dams; control of sedimentation and soil erosion; sound emissions during the construction period, environmental and noxious weed control; and the general management of the site.

(c) Planting of a row of non-deciduous trees (which will grow to a height of at least 12 metres) within 3 - 4 years to form a screen at the front of the galvanised iron part of the winery building. Such screening may be located in front of the southern (truck) accessway.

In preparing and implementing the Landscape and Site Environmental management Plan, regard should be had to the "best practice" environmental principles in the Shire of Yarra Ranges Code of Environmental Practice for Works on Council Controlled Land (including Roadsides) and the Environment Protection Authority's Environmental Guidelines for Major Construction Sites Publication 480 (December 1995).

19. The landscape works shown on the endorsed plan shall be carried out prior to opening of the major tourist facility to the satisfaction of the Responsible Authority.

20. The trees and other vegetation on the site to be retained must be protected during development operations to the satisfaction of the Responsible Authority.

21. Prior to the commencement of any works covered by this permit, engineering plans showing all drainage including the treatment and control of run off and the on-site absorption and/or conveyance of stormwater to a legal point of discharge all to the satisfaction of the Responsible Authority shall be submitted to the Responsible Authority for approval and all such works shall be completed prior to the commencement of the uses allowed under this permit.

22. Prior to the commencement of the uses allowed under this permit the left and right turning lanes as required under this permit shall be constructed to the satisfaction of VicRoads and the Responsible Authority and at the cost of the developer and these works shall be maintained by the developer to the satisfaction of the Responsible Authority for a period of three months after the commencement of the uses allowed under this permit.

23. Prior to the approval of civil engineering construction plans a supervision fee to the value of 2.5% of the cost of the works as required by the condition of this permit requiring construction of left and right turning lanes in Yarra Glen/Healesville Road shall be paid to the Responsible Authority.

24. A refundable maintenance bond to the value of 5% of the cost of the works included in the condition of this permit requiring construction of left and right turning lanes in Yarra Glen/Healesville Road of this permit or $1,000, whichever is greater, shall be submitted to the Responsible Authority upon practical completion of the works.

25. Prior to the commencement of each of the uses permitted under this permit, the parking areas and vehicular accessways for that use shown on the endorsed plan shall be fully constructed, sealed, drained and delineated to the satisfaction of the Responsible Authority. All parking areas shall be maintained to the satisfaction of the Responsible Authority.

26. Prior to the occupation of the permitted development, vehicle crossings shall be constructed in Yarra Glen/Healesville Road at each entrance to serve the development to the satisfaction of VicRoads and the Responsible Authority.

27. Any excavations on the land resulting from the permitted development shall be retained to the satisfaction of the Responsible Authority. For the purpose of this condition, excavations not exceeding two (2) metres in height not less than 600mm from any allotment boundary may be battered back to a stable slope and planted with ground cover plants to prevent erosion of the surface.

28. All excavations relating to the permitted development shall be carried out in accordance with the guidelines for "Safe Hillside Practice" prepared by Coffey Partner's International to the satisfaction of the Responsible Authority.

29. Prior to the commencement of works under this permit, plans and specifications prepared by a suitably qualified engineer experienced in the construction of dams, shall be submitted to the Responsible Authority for information. These plans and specifications shall show dam design, construction and capacity, spillway, associated drainage and landscaping. The dams shall be constructed in accordance with these plans and specifications to the satisfaction of the Responsible Authority in consultation with Melbourne Water.

30. In preparing engineering plans required by this permit the engineer shall:

(a) Refer to the "How to prevent dam construction failures" guideline produced by the Department of Natural Resources and Environment; and

(b) Obtain the advice of the relevant drainage authority and ensure that the comments of the drainage authority are taken into account before finalising plans and specifications.

31. Prior to the commencement of the uses allowed under this permit, the supervising engineer must certify that all developments and works have been carried out in accordance with the plans and specifications submitted under this permit. This certification must be to the satisfaction of the Responsible Authority.

32. The dams and associated drainage works shall be maintained by the landowner to the satisfaction of the Responsible Authority.

33. Layout plans of the access conditions and roadworks generally in accordance with the plan identified as V1777-01 dated 18 November 2000 prepared by GTA Consultants shall be submitted to VicRoads for approval. These plans will show:

(a) At east entrance - a left turn deceleration lane with taper and a right turn deceleration lane "type C" treatment. (Refer Austroads Standards - Part 5 Intersection at Grade) designed in relation to the operating speed of the Yarra Glen/Healesville Road.

(b) At west entrance - a left turn deceleration lane with taper and a right turn lane "type B" treatment, (refer Austroads Standards - Part 5 Intersection at Grade) designed in relation to the operating speed of the Yarra Glen/Healesville Road.

34. The depth and composition of new pavement and rehabilitation of the existing pavement, and the standard of materials and work shall be to the satisfaction of VicRoads.

35. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drain or water courses, during or after construction of the facilities.

36. Runoff and sediment control measures are to be provided during construction as per the Environment Protection Authority's "Environmental Guidelines for Major Construction Sites" to the satisfaction of the Responsible Authority.

37. Noise generated by the uses allowed under this permit shall not exceed the following background noise levels:

when measured outside the existing dwellings at 800 Healesville/Yarra Glen Road and 845 Healesville/Yarra Glen Road.

Once per year and for two years from the commencement of the uses allowed under this permit the use of the winery and residential hotel components of the uses permitted under this permit shall be monitored for noise generated by them to check compliance with the requirements of this condition. Such monitoring shall, in respect of the winery, be conducted during vintage time, and, in respect of the residential hotel, at such times when it is at or near peak occupancy levels. The monitoring shall be undertaken at the expense of the owner/occupier and a report submitted to the Responsible Authority.

38. The uses allowed under this permit shall operate only during the following hours unless extended by the Director of Liquor Licensing under the provisions of the Liquor Control Reform Act 1998:

For the Applicant for Review: Mr M. Mc H. Wright QC and Mr C. Townshend of Counsel instructed by Rigby Cooke, Solicitors.

Mr D. Hayman, Group Operations Manager BRL Hardy Ltd.

Mr R. Watters, Director, Sales and Marketing (Aust), Hilton Group

For the Responsible Authority: Mr C. Taylor, Russell Kennedy, Solicitors

For the Applicant for Review/: Mr J. McCaffrey, Town Planner

Demand Engineering Pty Ltd Dr M. Buxton, Associate Professor Environment

E. Richardson and J. & G. King M.G. Harding, Accoustic Engineer

E. Richardson and J. & G. King Mr M. Ashton, horse trainer and owner/occupier

1. This is an application for a review by Leighton Contractors Pty Ltd pursuant to Section 80 of the Planning and Environment Act 1987 of Yarra Ranges Shire Council's decision to impose condition Nos 18, 21, 37, 40, 41, 48, 52 and 59 of Permit PE2000/937.

2. This is an application for review by various objectors pursuant to Section 82 of the Planning and Environment Act 1987 concerning the decision of Yarra Ranges Shire to approve application PE 2000/973 for a winery and major tourist accommodation development.

3. Application for Permit PE2000/973 sought approval for winery, major tourist accommodation facility, with associated car parking, landscaping and removal of existing vegetation.

4. During the hearing Mr Wright QC, sought leave to amend the description of the application to:

(a) Winery and Major Tourist Facility with associated carparking and landscaping (including the construction of dams) and to include in the use of the facilities the supply sale and consumption of liquor pursuant to a general licence, a producers licence and an on-premises licence for a restaurant(s) under the Liquor Control Reform Act 1998 and including such extended hours of trading as the Director of Liquor Licensing may approve and for associated signage and vegetation removal and for a dispensation from the car parking requirements of the planning scheme.

5. In summary the purpose sought in this development and use permit comprises:

**The use and development of a winery comprising a 120 metre long building containing a wine producing area. This comprises two refined horizontal containers anchored together by an earthy red oxide spine wall. The eastern building comprises two horizontal planes linked by glass which leads on to a deck overlooking a new dam. A large western tank and plant rooms will be contained in a 13 metre high galvanised metal clad building. The winery would have:

* Ability to crush and process 2,500 tonnes of grapes per year.

* Adequate storage and processing facilities to cater for grapes produced on the site as well as other properties in the Yarra Valley.

* Separate truck access, loading and unloading facilities.

The winery would potentially operate 24 hours per day, seven days per week. Operating hours would depend on the vintage and non-vintage time and peak tourist times. It is anticipated that the winery would employ between 7 and 13 full time and part time staff.

It is proposed to plant out about 60% to 70% of the site with grapevines and orchard trees.

This component of the development would comprise a two tiered structure (giving four separate levels) and comprise the following:

The major entrance to the site is from a road to the porte cochere located on the north western side of the building. There is also separate access to an undercover loading and service area. The building would be composed of a central north-south spine flanked by two storey elements and a terrace; and four levels of guest rooms one, comprises a two storey east-west spine, and then also lower level a further two level curved spine running south-west/north-east. The buildings would be stepped around and below the crest of the hill and when combined with a landscaped roof will merge with the natural land form. External building materials will comprise non-reflective natural materials of timber, local stone aggregate and rusted steel consistent with the rural vernacular.

6. It is proposed to fill one dam on the east side of the site, enlarge another dam to become a main "feature" dam for the site with a capacity of twenty-five megalitres. The dam is proposed to irrigate the site and also provide a landscape feature which frame access into the development and winery as viewed from the public accessway. A smaller dam to the north will be retained as a sediment trap.

7. Some native and exotic vegetation will be removed from the site. There will be substantial new vegetation planting all of which is contained within a landscape concept prepared by Chris Dance Land Design.

8. There will be related earth works, excavation, and accessways created consistent with the project. In addition, directional signage will be provided on the site.

9. The Winery, Restaurants and various components of the Residential Hotel and function room will be licensed for consumption and sale of alcohol.

10. New utility services will be connected to the site and these conclude:

* A 225mm main connected to the nearest reticulated main line approximately 3.86 kms from Yarra Glen.

* New electricity supply including sub-stations, for the winery and hotel.

* New telecommunication facilities (either Optic Fibre or Copper Cable).

* A new reticulated sewerage system with rising main and connected to Yarra Glen (a pumping station).

11. The applicant proposes to consolidate two land titles.

12. The hotel will be located in a position slightly east of the centre of the site. Initially it was shown setback 25 metres from the eastern property boundary. However, Mr Dance, the landscape architect, with the support of planning and architectural witnesses recommend moving the building westwards, and swinging the building on an 8-10 degree plain so that its position is now located 70 metres from the eastern boundary of the site and about 280 metres from its southern property boundary.

13. A separate car park for the tourist accommodation will be positioned to the west of the building connecting with a road which curves around in a westerly and southerly direction, it joins with the customer car access to the winery and then in a southerly direction until it meets Yarra Glen-Healesville Road roughly in a central position on the site.

14. Mr Biacsi accurately described the subject site and surrounding properties which the Tribunal has adopted for convenience sake:

"The subject site is located on the north side of the Healesville-Yarra Glen Road, approximately 3.4 kilometres east of Yarra Glen and 300 metres west of Tarrawarra Road, in the Yarra Valley region.

The site known as "View Hill" occupies about 33 hectares and is currently used as a rural dairying and grazing property. The site currently comprises two separate titles with a larger parent title of about 32.78 hectares and a smaller excised lot of 0.4 hectare located adjacent to the Healesville-Yarra Glen Road.

The subject site is currently occupied by two dwellings on the two separate land parcels. The main dwelling is part of the parent title and is surrounded by a number of farming sheds used to house equipment and materials associated with the existing use. The other house exists on a smaller 0.4 hectare parcel located towards at the front edge of the site. Each house has separate access from Yarra Glen-Healesville Road.

The site is irregular in shape with a total frontage to Healesville-Yarra Glen Road of 522.48 metres and an average depth of 715 metres. The site comprises a substantially undulating topography with the highest point of the site being 150 metres AHD (adjacent the northern boundary) and the lowest being approximately 80 metres AHD adjacent to the main road (southern boundary) of the property. The site slopes gradually downward from the north-east to the south west with the main ridge line running along the centre of the site in a north-south direction. The topography to the east slopes from the highest point of the site to the property to the east with the steepest slope abutting the eastern boundary.

The site has been extensively used for dairying and grazing and subsequently most vegetation has been removed from the site. However, there are two key areas of existing vegetation currently remaining. The first includes a "U"-shaped stand of cypress trees located in the middle of the site, many of which are in poor condition. The other prominent vegetation is located towards the south-western corner of the site around the existing dwelling and dam.

The site comprises a natural drainage line located parallel to its western boundary. This extends along a natural valley through the property down to the main road where it crosses via an existing culvert and continues towards the Yarra River. Two existing irrigation dams are located in this area with the smaller of the two currently in good condition and the larger dam in poor condition having silted up thereby considerably reducing its capacity and usefulness.

The area surrounding the site reflects a typical rural grazing environment with undulating paddocks, sporadic vegetation and the occasional dwelling. South of the site the topography changes into the lowlands of the Yarra River flood plain and Yarra River valley where vegetation is more prominent along the river.

Adjoining land to the north, east and west is predominantly rural land used primarily for agricultural grazing purposes. However the land to the east is also used by the landowner for horse training and the properties to the north and north-east for small vineyards.

Immediately to the south of the site are a number of smaller 4 hectare lots wedged between larger land holdings and the Healesville-Yarra Glen Road and the former Yarra Glen-Healesville railway line. Uses within this area include the Tarrawarra Lodge Bed and Breakfast (400 metres south-east) and the Art at Linden Gate Gallery (500 metres south-west).

The nearest dwelling to the subject land is that owned by W & J Harris on the south side of Healesville-Yarra Glen Road. This property is located approximately 120 metres from the frontage of the subject site. No dwelling on properties adjoining the subject site is within 200 metres of the proposed Winery or Hotel buildings.

The Healesville-Yarra Glen Road dominates physical infrastructure in the immediate surrounds of the site. Other significant roads include the Old Healesville Road (not visible from site) and the Maroondah (south) and Melba Highways (to the west). Other nearby roads are predominantly gravel and of low use. The linear scar from the former Yarra Glen-Healesville railway line 500 metres to the south of the site provides the remnants of the only other physical infrastructure previously existing in the area.

A number of buildings within the surrounding landscape as visible from the subject site including a number of prominently sited houses, vineyards and wineries including those of Domain Chandon and Yering Station together with market gardening activities."

15. The subject site is situated in an area highly regarded for its wineries and rural landscape. It is highly attractive to visitors to the region many of whom visit larger wineries in the area including DeBortoli, Yerring Station, Domain Chandon and Tarrawarra Estate, and many smaller wineries. As the regional strategy plan states "the Yarra Valley's reputation for cool climate, quality wines is spreading, with an increasing recognition of the potential for related eating and overnight accommodation facilities in selected parts of the region".

16. Visitor accommodation in the region is generally limited to bed and breakfast establishments, pub accommodation, caravan parks and smaller motel complexes. Other significant land uses in the area include the Yarra Glen Racecourse, Healesville Sanctuary, Lilydale and Coldstream airports, Sugar Loaf Reservoir and numerous state forests and national parks.

17. The region is a popular destination for visitors, it offers a wide variety of tourist related activities and is conveniently located in being about 1 hour drive from Central Melbourne.

18. The subject site is located in a Rural Zone (Schedule 5) to the Yarra Ranges Planning Scheme. There are no overlay provisions.

* To use land for a major tourist accommodation facility and also a winery (Clause 35.01).

* For reduction in the standard car parking rate for various uses (Clause 52.06).

* To undertake development, buildings and works (including installation/construction of dams) (Clause 35.01-3 and 53).

20. Other State Planning Controls and Policies of relevance in this matter are contained within the following Clauses of the Yarra Ranges Planning Scheme.

* Clause 15.01 - Protection of Catchments, Waterways and Ground water.

21. The Upper Yarra Valley and Dandenong Regional Ranges region - Regional Strategy Plan 1996 is a strategic document which must be considered having regard to the preparation of a Municipal Strategic Statement and the Planning Scheme. Many of the provisions found in the Regional Strategy Plan have been included in the Yarra Ranges Municipal Strategic Statement (MSS), Local Policies (LPPF) and where necessary in Clause 53 of the Planning Scheme. Clause 53 was specifically introduced into the Yarra Ranges Planning Scheme to address matters which had been contained in the regional strategy plan but were not or could not be addressed through the usual VPP version of planning schemes. The purpose of Clause 53 is:

"To facilitate consistency between the Yarra Ranges Planning Scheme and the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plans in accordance with Section 46(f) of the Planning and Environment Act 1987."

22. There is a comprehensive grouping of planning directions, policy statements and provisions contained in the Local Planning Policy Framework which have relevance in this application for review. These matters will be identified in various paragraphs in this decision although the wording of these provisions will not be repeated in their entirety. Further commentary will be made, where relevant, under the Criteria for Decision, suffice to say the following clauses underpin strategic planning directions for the municipality:

* Clause 21 - Municipal Strategic Statement and related sub-clauses.

* Clause 21.03 - State and Regional Planning Context.

* Clause 21.03 acknowledges that the Municipal Strategic Statement is underpinned by two important strategic policies, namely:

* State Planning Policy for the region (formally Statement of Planning Policy No. 3 Upper Yarra Valley and Dandenong Ranges.

* Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan 1996 (Regional Strategy Plan).

23. Two critical parts of the Local Planning Policy Framework are contained under Rural Policy Areas and Recreation and Tourism - Clause 21.03-3. We consider Mr Biacsi at page 19 of his evidence placed these policies in an appropriate context when he stated:

"The main thrust of the Rural Policy Areas is to recognise the importance of the rural areas for the primary purpose of agricultural pursuits and to ensure that new development on rural land is compatible with the maintenance of rural landscapes, character and atmosphere. Concerns for environmental values and ensuring that new buildings are complimentary to the natural environment are evident in this policy.

The Recreation and Tourism Policy identifies tourism as one of the regions competitive strengths and seeks to capitalise on their strength by encouraging the development of the region's recreation and tourism attractions. The policy also recognises the importance of the landscape in the region and espouses that new development should be sensitive to the environment. The broad objectives of the policies as set out in the MSS are further defined in the Local Policies Rural areas and tourism at Clause 22.03 and Clause 22.06 respectively."

24. Other Clauses in the Planning Scheme of note are:

* Geographical and functional areas (Clause 21.02-3).

* State and Regional Planning Context (Clause 21.03).

* Doing Business in the Shire including objectives, strategies and implementation (Clause 21.04).

* Non urban areas - Agriculture and Conservation - Working Together (Clause 21.06).

* Development in Residential, Rural Living and Rural areas - Clause 22.11

25. At the review hearing the Tribunal was provided with a large array of information including plans, elevations, landscape plans, photos of the subject site surrounding area from various perspective's, details of materials and finishes of the proposed buildings, very detailed discussion, debate and evidence about planning scheme provisions and a substantial array of evidence. All witnesses were available for cross examination. The evidence from Mr Goad was not contested.

26. The Tribunal undertook an inspection of the site, various objectors properties and the locality on 31January 2001.

27. Mr Taylor, for the Responsible Authority submitted the application should be supported because the proposal .......

* Does not permanently alienate highly productive agricultural land or land with that potential.

* Does not unreasonably change or cause detriment to the amenity of the area.

* Does not glut the landscape with too many tourist developments.

* Meets the requirements of Clause 53 of the Yarra Ranges Planning Scheme.

* Can be made to be compatible with adjoining farming activities.

* Is not contrary to urban containment policies of the Council's MSS and the Regional Strategy Plan.

* Is not inconsistent with the conservation policies of the Planning Scheme.

* Provides an acceptable and desirable balance between tourism development and protection of rural and environmental values served to be protected by the Planning Scheme.

28. Mr Taylor explained the role the Regional Strategy Plan has played in the formulation of the MSS, Local Policies and Statutory Provisions in the Yarra Ranges Planning Scheme including Clause 53.

29. He advised there was no inconsistency between the Regional Strategy Plan (RSP) and the Yarra Ranges Planning Scheme. He argued that in any event Section 22 of the Planning and Environment (Planning Schemes) Act 1998 validates the planning scheme provisions and he argued this validates the planning scheme provisions and means the provisions of Clause 35, 53 and other provisions of the Planning Scheme prevail over the RSP.

30. Mr Taylor argued that Section 7(4) of the Planning and Environment Act 1987 has the effect of Clause 53 of the scheme prevailing over the RSP and advised the RSP is not part of, nor incorporated in the scheme, but regard, can but need not be, had to it pursuant to Section 60(1)(b) of the Planning and Environment Act 1987.

31. Mr Taylor argued that the proposed hotel component of the tourist accommodation facility is more appropriately defined as a residential hotel in the planning scheme. He drew a distinction between residential hotel and a hotel more colloquially known as "a pub". He explained distinctions in definitions between the current planning scheme and the previous Yarra Ranges Strategy Plan (which now no longer exist). He argued, that activities, as described in the application were not prohibited outside township policy areas under Clause 16.16 of the regional strategy but rather were supported by policy.

32. Mr McCaffrey, for a number of objectors argued the Responsible Authority's decision was flawed in three fundamental aspects.

33. (1) The use is explicitly prohibited by the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan. Mr McCaffrey argued that the hotel may only be allowed within the commercial or activity centres within township policy areas and must be controlled to protect the amenity of residents and the visual and environmental quality of the area.

34. Mr McCaffrey provided a very detailed written and oral submission arguing the applicant and the Responsible Authority had failed to recognisee the importance of, and the relevance of, the Upper Yarra Valley and Dandenong Ranges Strategy Plan (the R.S.P.). He called Dr Michael Buxton as a witness whose evidence, in summary was:

"The Upper Yarra Valley and Dandenong Ranges regional strategy plan continues to form the policy basis for statutory decision making on land use and development for the region.

This strategy was established primarily to protect the special features and character of the region. The two most important threats were those arising firstly from urban growth, and secondly from changes to rural areas through loss of agricultural activities and environmental degradation. The fundamental principle underlying the strategy plan was the attempt to contain development within well defined urban boundaries in order to protect the environmental values and rural areas of the four municipal areas.

One of the most important directions of the strategy was the attempt to provide for continued agricultural production and the associated protection of environmental and agricultural resources. The strategy plan prohibits the location of hotels in rural areas and provides that they are located within commercial or activity centres within townships.

The strategic policy aims of successive governments that the region's environmental features and rural areas be protected from commercial development have been expressed consistently in major environmental and planning policies, and in Parliament.

Governments and panels have repeatedly expressed the view that strategic planning for the region was put in place to prevent the region's environmental values being lost to disparate and incremental decision making.

The status of the regional strategy plan as the overriding strategic policy context for all decision making was reinforced by the Planning Authorities Repeals Act (1994) which provided that any amendment to a planning scheme which conflicted with the strategy plan can only be allowed after approval by both houses of Parliament. The fact that planning schemes within the four local government areas in the region had been made consistent with the strategy plan, had generally led to consistency in control of development and land uses through permits. The 1994 Act was intended to enlarge on this by controlling rezonings through legislative control. Ministers in debate on the Bill made clear their intention that this would increase the level of control over land use and development and provide an overriding form of protection for the region."

35. Mr McCaffrey argued the uses proposed in the development are contrary to the strategic directions for development in the Yarra Ranges Shire as set out in its Municipal Strategic Statement. He argued there is a clear continuum of strategic objectives, strategies and implementation measures which provide the strategic basis for planning decisions in the Shire.

37. Mr McCaffrey argued that during the exhibition an adoption process of the Yarra Ranges Planning Scheme there had been a fundamental changing to wording in Clause 22.06-3 which had a substantial bearing on the way the application was considered. He stated the original intent for a major tourism facility was to be "ancilliary" to agricultural activities carried out on the land. He claimed the word "ancilliary" was replaced with the words "associated with". He was critical of this change which apparently had been made at the direction of the Department of Infrastructure to achieve consistency with other planning schemes.

(ii) The nature of the use and the scale of development is completely inappropriate for the subject site

38. Mr McCaffrey argued the (Tourist Accommodation) building at 20 metres in height is excessive and its presence cannot be built into the site nor it cannot be screened to a degree which will render it unobtrusive. He argued the building extends for a length in excess of 200 metres across the site. Mr McCaffrey argued the building will be between 40 and 60 metres above the adjoining property (the Ashtons). He claimed there is no building of similar scale within that part of the Yarra Valley.

39. Mr McCaffrey argued the winery building is considered to be excessively large for the area in which it is built. He argued it was a factory, its style and appearance was industrial and it was no more than a large tin shed. He argued that a major commercial buildings introduced into a purely rural environment will be highly visible in the short, medium and long term and that this type of development is foreign in this area in whatever form it is presented.

40. (iii) Mr McCaffrey submitted the development will have a detrimental impact on the viability of the horse training activity conducted by Mr M. Ashton (Junior). He claimed there would be a sharp incidence of noise emissions which it was claimed will effect horses being stabled and trained on Mr Ashton's property.

41. Mr McCaffrey claimed the proposal will introduce noise and movement into the locality which by its nature will effect the working environment that the Ashton's property currently enjoys and which the zoning and planning controls in the area are intended to provide. He claimed that noise generation has not been satisfactorily attended to by the applicant. Mr McCaffrey called Mr G. Harding, Acoustic Engineer as a witness. Mr Harding's findings were:

"Bassett's have worked on the basis that the existing noise climate at the Ashton's property is like that pertaining in Metropolitan Melbourne.

Bassett's have worked on the basis of noise limits appropriate to Metropolitan Melbourne.

These noise limits are inappropriate for the country where people have chosen to forego the facilities of the metropolis for the quiet of the country.

Bassett's have not worked in 1/1 octave bands as is required by SEPP No. N-2, and required to be used when possible by the EPA's N3/89.

Bassett's have made gross errors in their modelling (calculations) of noise it receives from the hotel; their estimate being about 20dB too low.

It is possible to silence chillers, condensers, fans, pumps and other machinery to achieve noise limits for those items silenced or enclosed.

The noise control measures may require a bunker style for the hotel and a precast concrete enclosure around the winery plant.

The noise control measures may affect the economic viability of the proposed development.

The accidental and incidental noises from bumped car horns, door slams, flag poles, dropped tools, people calling to each other, etc. will remain uncontrolled and disturbing."

42. Mr Harding recommended the decision of the Shire be overturned on the grounds that the applicant has not demonstrated that the proposed development can and will conform to appropriate noise levels, that it has been demonstrated that the applicant modelling of noise from the hotel staff and patrons to the actions property was too low by about 20dB. Mr Harding suggested that if a permit was to issue it should contain the following conditions:

"The report shall list all design receiver locations and both the 1/1 octave band noise limits applicable to each receiver location; and the 1/1 octave band environmental noise measurements upon which the noise limits are based with dates and times of measurement.

The 1/1 octave band signal to background noise ratios used in setting the noise limits shall be shown.

The report shall list all noise sources and for each noise source the noise control measures proposed.

All calculations shall be included in the report.

The assessed subjective reactions of potentially affected neighbours shall be shown.

At all times the development shall comply with applicable State Environment Protection Policies.

No external sound amplification equipment, loud speaker, siren or other audible signalling device shall be installed on the land without prior written agreement of the Responsible Authority.

No fireworks or similar noisy and illuminated displays shall take place on the land without the prior written agreement of the Responsible Authority."

43. Mr McCaffrey raised concerns about large commercial vehicles and a large number of passenger vehicles from the site would create an unacceptable traffic hazard. He claimed his clients were concerned about the condition of the Yarra Glen/Healesville Road and to allow the development will create an unacceptable and unsafe traffic situation to which drivers unfamiliar with the local conditions will be exposed.

44. Mr McCaffrey claimed that traffic at night will create a nuisance particularly from headlights to the detriment of this rural area and in particular property owners who reside nearby.

45. Mr McCaffrey raised concerns about the form and content of conditions and claimed they were unsatisfactory and did not adequately deal with how the hotel and winery would operate together.

46. Mr Koops on behalf of Karen Hogan expressed support for the arguments put forward by Mr McCaffrey and his experts. He was particularly critical of the car parking evidence and in particular the imprecise data cited in Mr Tucker's evidence. He expressed particular concern about overflow car parking on verges in the internal road. Mr Koops argued the proposal should be seen to comply with the standard parking requirements of the planning scheme. Mr Koops was of the view that overflow car parking areas would become unusable in the event that cars got bogged on the verges. He claimed it was often quite wet in the Yarra Valley and when the soil was wet it was easy for vehicles to become bogged.

47. Mr Koops also claimed the site was too small for the proposed development and he believed there was a need for a monitoring program for a period of five years to ensure compliance with the permit.

48. Mr Harris provided a written submission and he summarised his major areas of objection as being:

* The size and scale of the development being excessive.

* Noise. He was concerned the escape of noise from the hotel including the ballroom and various other activities generated by vehicles such as beepers, sirens and outside alarms would be intrusive into this quiet rural area.

49. Mr Harris questioned the recommendation of Mr Poulton (the Lighting Engineer) that a sign be erected inside the site advising patrons to depart the property with their car lights on low beam. Mr Harris also believed there was a need for a better sound attenuation devices in front of the winery structure. Mr Harris was also concerned about enforcement in the event of non compliance with the permits. He was concerned about being given the "run around" from various authorities in trying to decipher who was responsible for enforcement of various aspects of the planning permit.

* The proposed size and scale of the winery building being excessive for the area. He claimed the building was industrial in nature and was contrary to Clause 21.04 of the Yarra Ranges Planning Scheme.

51. Mr Fries expressed concern that the winery would only be processing a small amount of product from the site and that most product, i.e. about 95% of the grapes to be processed in the winery would be brought in from other vineyards in the region. He claimed the winery building was too high, that its height and structure was aesthetically flawed. He submitted it should be a subdued colour and of non reflecting material. Mr Fries raised concern about noise from the winery building and screening. He was concerned that the winery building needed to be screened out and was concerned that the proposed screening treatment was insufficient because a number of existing trees used for screening were in a bad condition. Mr Fries expressed concern about the amount of excavation proposed for the car park area claiming these car parks would be terraced and glare would be experienced from lights from cars using this car park.

52. Mr Fries also raised concern that the new dam located to the front of the site would have a high embankment which would be visually unpleasant.

53. Mr Fries also believed the Council could have made a better job drafting conditions listed in the Notice of Decision and he claimed that more attention should have been given to pedestrian movement including the area along Yarra Glen/Healesville Road. Mr Fries also suggested there was a need for a maintenance plan for the replacement of any plants, vegetation or flora.

54. Mr Wright for the Applicant explained the proposal represents an association between a major international wine producer and an international hotel chain each of whom will benefit from a direct relationship achieved through co-location in the Yarra Valley.

55. Mr Wright advised that key factors in the choice of selection of the location included:

* The Yarra Valley is an emerging wine region and does not yet have a tourist resort of this scale or quality.

* The site offers a setting surrounded by a working vineyard and orchard in the context of an operational winery.

* The site offers attractive medium and long distance views which are a desirable attribute for a leisure retreat competing at a national and international level.

* The proposed site layout, associated with the winery and siting of the building has been carefully orchestrated to promote a theme consistent with the intended promotion of the hotel as "Hilton in the Vines".

* The site's proximity being one hour travel time from a capital city.

56. Mr Wright argued that key issues ventilated in the witness statements filed on the objector's behalf can be addressed by reference to the following questions:

(a) Must the proposal be consistent with the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan?

(b) Does the proposal implement current policy for the State reason?

(c) Will the winery and/or hotel uses unreasonably impact on the amenity of the area, particularly in terms of noise?

(d) Will the winery and/or hotel uses unreasonably impact on the normal farming operations on nearby land?

57. Mr Wright argued there was strong policy support for the proposal as outlined in Mr Biacsi's evidence. Mr Biacsi provided a detailed explanation of planning policies and controls including State Planning Policy, Regional Planning Policy contained within the RSP, Local Planning Policy and various Statutory provisions in the Yarra Ranges Planning Scheme including Clause 53. Mr Biacsi's summary of the policy context (Section 4.3) are:

"My assessment of the planning policy framework reveals the following key themes of significance to this proposal:

_* With any new development in the rural areas, consideration must be given to the environmental and landscape values which characterise the area concerned. In particular, regard must be shown for the scenic qualities of the area, viewlines and vista's and the manner in which any proposed development complements or responds to the rural character of the area.

_* Consideration be given to the value of the land concerned for productive agricultural purposes and the effect that the proposal will have on this. This serves to ensure that high quality, productive agricultural land is not lost to some form of non-urban or unrelated purpose which could otherwise be located on land of lesser agricultural value.

_* Acknowledgment of the importance of tourism and agriculture (particularly wine production) to the Yarra Valley region and the State of Victoria. This recognises the significance of certain industry sectors to the economy and social infrastructure of the region which needs to be balanced against natural environmental objectives and local amenity concerns.

_* Acknowledgment of the capacity for integrated developments involving components of tourism and agriculture occurring on the same land to be established in rural areas within the Yarra Valley. This recognises that it may be appropriate to locate major tourist accommodation in areas other than in township locations.

_* Acknowledgment of the harmony and balance sought between fostering new tourism opportunities and the protection of the environment when considering development proposals. Again, this addresses the issue of balance and the objective to promote outcomes which are sustainable and positive.

_Two of the more significant policy tools of relevance to the proposal are those contained in Clause 22.03 (Rural Areas Policy) and Clause 22.06 (Tourism Policy) of the LPPF. These policies outline the basis for determining the suitability or otherwise of a development such as that proposed in the rural areas. Whilst acknowledging the concerns for proper siting, design and operation of major facilities in such areas, in my opinion these policies also serve to confirm the legitimacy of such facilities in rural areas under certain prescribed circumstances. I will elaborate on these matters later in my report."

"When assessed against the various policies of the Planning Scheme, I believe that the subject site is not only suited but also appropriately located so as to accommodate a use and development of the kind envisages. I am satisfied that each of the various components of the proposal is appropriate from a planning viewpoint, particularly having regard to the types of activities which the Planning Scheme and accompanying planning policies have deemed acceptable in the rural zone.

In relation to the Rural Areas Policy (Clause 22.03), I note the following:

_* Being located within a broadacre farming area, the policy notes that opportunities for other agricultural pursuits including wine production should be provided for and that the importance of wine production is to be recognised. The proposed use and development directly responds to this policy.

_* The objectives of the policy specifically encourage tourism and recreational uses which have a direct relationship with a vineyard or other form of agricultural production. This accords with the proposed use and development.

_* The proposed use and development of the land will not result in any significant loss of productive agricultural land, particularly given the siting of the proposed buildings in this case which is on the land less suited for farming and the remainder of the steeper areas which are generally proposed to be landscaped.

_* The proposed development is provided with significant setbacks from neighbouring properties, and of those which contain dwellings, these are in turn further separated from the common boundaries with the subject land by substantial setbacks. The proposal also contemplates provision for significant landscaping buffers to boundaries to further soften the development.

_* The proposal provides for adequate car parking to satisfy the demands of the development. Furthermore, access to the site is proposed from a main road which overcomes any concern, in policy terms, about the potential to impact upon residential areas.

* The policy states that restaurants, tourist facilities and visitor accommodation not be established in a Rural Zone unless they accord with the Tourism Policy (Clause 22.06).

In relation to the Tourism Policy at Clause 22.06, I note the following:

_* The policy acknowledges the potential for the expansion of tourist facilities including eating and overnight accommodation in the Yarra Valley.

* The policy allows for major tourist facilities to be located in rural areas where the proposed facility will be associated with an agricultural activity being carried out on the land. It is also desired that such facilities be connected to reticulated sewerage. In both instances, the proposed use and development accommodates these requirements.

_* The policy only allows for major tourist facilities in the rural zone if certain requirements are met. In my view they are met in the present case.

- the proposal use and development does not directly impact upon any nearby "normal" farming operation.

- the subject land is well in excess of the stipulated 2 hectares, by a factor of more than 16 times.

- the proposal will not lead to a concentration of similar land use facilities, which the policy seeks to avoid.

- The proposed development will have direct access to a sealed main road which the policy requires.

_* In relation to visitor accommodation, the policy allows for such proposals in the rural zone provided that:

- it is associated with a restaurant, other tourist facility or agricultural activity all of which are accommodated by the proposed development in this case.

- it does not unreasonably impact on other nearby "normal" farming operations, which this will not.

- it is connected to reticulated sewerage, which is proposed in this case.

- Be on a site of more than 2 hectares, which the subject land significantly exceeds.

- The proposal should not contribute to a concentration of similar land uses.

- The site has access to a sealed road, which is proposed in this case.

* In relation to restaurants, the proposed development satisfies the Tourism Policy which describes the preferred locations to include those sites:

- _where the restaurant will be associated with a visitor accommodation facility or other tourist facility providing for more than 30 people.

- _Where the restaurant will be associated with an established vineyard and winery which is producing wines from grapes or fruit grown predominantly on the site.

The remainder of the Tourism Policy refers to matters relating to design and development of tourism and recreational facilities including concerns about the impact of buildings, protection of environmental features and services. I will address these matters later in my report.

In so far as the influence of local planning policy on the suitability of rural areas to accommodate the proposed use's is concerned, I am satisfied that the subject site is appropriately located and that the development has responded satisfactorily to the policies and requirements of the Planning Scheme. The proposal satisfies a number of repeated requirements of local planning policy particularly in respect of the integrated nature of the proposal, the association between the various activity components, minimum lot size, servicing requirements and access."

59. Mr Wright argued there was unequivocal policy support for tourism development in this identified wine region. He argued this extends to encouraging tourist accommodation. He submitted that it is appropriate that any tourism development must be planned so as to preserve the qualities which attract tourists in the first place. He argued the site forms part of a wine region and it is this feature which anchors local tourism. He submitted that the relationship between vineyard and buildings to an extent define the character and identity of this part of the Shire. He submitted the landscape character has a number of attributes including:

* A prominent ridge line forming large valley and winding roads.

* Farmland settings combined with the charm of wine rows and winery buildings.

60. He argued the winery and hotel constitute a tourist resort which is itself an end destination rather than just a means of accessing or enjoying other recreation pursuits in the area. He submitted that even the integrated tourist resort of the scale and quality contemplated by the proposal is to be realised, and the resulting benefits to the region are to be achieved, then it is to be accepted that such a facility requires a building of high design integrity, substantial scale and an attractive visual setting.

61. Mr Wright called Mr Chris Dance Landscape Architect to explain the landscape concept (as amended) for the development site. Mr Dance explained the concept was based on the following principles:

* To take advantage of land characteristics and work with these to accommodate the proposed buildings and landscape elements.

* To provide a range of landscape buffers along boundaries to help integrate the development with its surrounding landscape and to help filter views to and from the site.

* Use vegetation to frame key views to proposed buildings rather than to completely screen them.

* To break down the proposed building mass by various vegetation methods.

* To keep building development well below the hill top to preserve the landform character of local, and especially regional views.

* Present a strong vineyard landscape character to the main road.

* Ensure that visual and light spillage impacts on neighbouring properties are kept to a minimum and try to curtail such impacts where possible.

* Recognise the potential for flora and fauna enhancement by way of landscape development through such means as water courses, indigenous buffers and internal plantations.

* Separate the winery from the hotel complex as distinct elements within the site landscape.

* Keep buildings and other elements relatively low within the landscape and have them work with the local topographic features.

62. Mr Dance recommended the proposed hotel building be shifted 50 metres to the west to allow greater distance between the hotel structure and the adjacent property (the Ashtons) along the eastern boundary and to increase the visual prominence of the hotel building when viewed from the Yarra Glen/Healesville Road. He also suggested the hotel be turned slightly northwards on its axis (in the order of 8 to 10 degrees) to fit in with the contour of the land.

63. Mr Dance also suggested the main alignment of the driveway be modified so that it "hugs" the contour of the land. This would be achieved by moving the driveway further west in the valley of the contour. He claimed there were a number of advantages which included the driveway being lower in the landscape, which would therefore help to screen it from view and minimise light spillage and noise pollution.

64. Mr Wright argued there would be no unreasonable offsite amenity impacts. He claimed the operation of the winery is well within the reasonable expectations for the rural zone particularly in an area specifically identified as a wine region. He argued the winery building is well separated from residential properties and would be largely screened by landscaping. Mr Wright called evidence from Ms Elizabeth Hui whose evidence, was in conclusion was:

"As specified by N3/89 Interim guidelines for control of noise from industry in country Victoria, the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. -1, has been used as a basis for assessing noise emissions from mechanical equipment and commercial vehicle movements associated with the proposed development.

N3/89 states that in low noise areas where the background level may drop to 25dB(A) a night-time noise limit of 32dB(A) should be adopted.

Although the measured background noise levels in the vicinity of the proposed site have not reached these low levels, it is considered appropriate to adopt the lower and more stringent limit of 32dB(A).

The worst case operating scenario is for all equipment to operate simultaneously and for 3 truck movements per hour to occur to both the winery and hotel.

It has been illustrated that the limit of 32dB(A) will be achieved for this worst-case scenario provided the hotel mechanical services are designed to meet the same noise limit at the nearest residential dwelling. With appropriate equipment selection, siting and attenuation, the hotel mechanical services can be designed to meet this limit.

The specification of appropriate building envelope construction materials and source music noise levels will enable noise limits for music set by State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2, to be achieved.

Noise from trucks and vehicles on site and noise from voices of patrons in the carparking areas will achieve the nominated sleep disturbance criteria at the nearest residential dwellings.

Noise from trucks and vehicles leaving the site and travelling along the Healesville-Yarra Glen Road will also achieve the nominated sleep disturbance criteria at the nearest residential dwellings.

The proposed development has been well designed to minimise noise intrusion to the nearest residential dwellings. All noise limits set by relevant noise legislation and sleep disturbance criteria can be achieved."

65. Mr Wright also called evidence from Mr Kevin Poulton Lighting Engineer whose evidence was:

"The general philosophy of the "preliminary Lighting Mitigation Strategy Plan" can be summarised as follows:

* Full cut off luminaires will be used so as to eliminate any direct view of the lamps and reflecting surfaces of the luminaires, from the outside of the property.

* Spill light from the interior lighting of the building will be controlled by the use of interior blinds and screens within the building.

* Sky glow and excessive waste light will be controlled by the use of low level bollard lighting on the access roads, and also by minimal usage of floodlights in carpark/s and other required exterior lighting sites.

Provided that the lighting is installed in strict accordance with the Strategy Plan, it is our considered opinion that the outdoor lighting for this project will not contravene the recommendations of the Australian Standard AS 4282-1997, "Control of the Obtrusive Effects of Outdoor Lighting."

This means that the neighbouring properties should not be disadvantaged by the outdoor lighting installed at the View Hill Winery and Hotel/Resort Development."

66. Mr Wright argued that the planning report prepared by Dr Buxton does not identify any specific amenity impact on any adjoining property. He claimed Mr Buxton's concern was primarily with planning policy and his perceived sanctity of the regional strategy plan.

67. Mr Wright argued that Mr Buxton had overstated the policy emphasis on the nature of the relationship between the various activities on the land.

68. Mr Wright argued the parking and traffic impacts of the proposal had been examined. He called Mr G. Tucker, Traffic Engineer whose evidence in summary, was:

"The proposed car parking supply will accommodate the peak parking demands generated by the development proposal in all but exceptional circumstances and at which times overflow parking is provided.

Traffic generated by the development proposal is not anticipated to have a significant impact on the safe operation of the surrounding road network; and

Adequate safety measures have been put in place to ensure the site has safe access."

69. Mr Wright was critical of the evidence of Dr Gunn, a Veterinarian, and claimed that he did not specify any particular impact associated from the hotel or winery operation on the operation of the farms nearby. Mr Wright went on to advise that any criticism from the Ashton's next door must be tempered by the fact that no permit had been granted for horse training facilities despite a permit being required at the time it commenced under the then Healesville Planning Scheme and under the current Yarra Ranges Planning Scheme.

70. Mr Wright argued that the proposed development is not contrary to the RSP and claimed that it is consistent with the RSP in its current form. He argued alternatively the RSP is no longer a relevant document, having been superseded by and absorbed into the VPP format Yarra Ranges Planning Scheme to the extent that regional strategies remain applicable. He also argued to the extent that any inconsistency existed then the planning scheme must prevail over the RSP. He argued the proposal development is not only permitted but encouraged by the planning scheme and that this overrides any prohibition maybe expressed or contrived from the RSP. He argued that the proposed development as a whole should be characterised as a "major tourist facility" and that the residential component should be characterised as tourist accommodation for the purposes of the RSP. He argued the proposal is not a hotel as that concept is used in the RSP. Mr Wright went on to say that in any event the RSP is no longer a relevant document and regardless of whether it supports the proposal or not it is clear that the proposed development is solidly founded on the policy set out in the planning scheme.

71. Mr Wright argued the only policy that can influence the decision in the present case are policies set out in the planning scheme itself. Otherwise the rationale of the reform system is totally undermined. He argued the RSP has served its purpose. The natural and proper evolution of statutory planning processes is the implementation of planning strategy by the introduction of control under a planning scheme. He argued this is what has occurred with the approval of the Yarra Ranges VPP Planning Scheme. He argued the strategy set out in the RSP have to the extent that they are considered current and appropriate have been implemented in the new planning scheme.

72. Mr Wright argued the mechanism for implementation (of the RSP) has been Clause 53. He claimed Clause 53 in fact retains the primacy of the strategy plan by providing that Clause 53 prevail over other parts of the planning scheme. He claimed the requirements of Clause 53 are mandatory, whereas the policy statement in the SPPF, the LPPF and the MSS are essentially guidelines.

73. Mr Wright also argued that to construe the planning scheme otherwise would be to question its validity, which would be contrary to Section 22 of the Planning and Environment (Planning Schemes) Act 1998. He argued that moreover if there is a consistency between the planning scheme and the regional strategy, section 7(4)(b)(ii) of the Planning and Environment Act 1987 makes it clear that the planning scheme prevails.

74. Finally Mr Wright called Mr Henshall, an Economist to give evidence on the economic benefits of the proposal. Parts of Mr Henshall's evidence in his conclusion at page 23 were:

_"(1) Wineries and tourism are important to the economic well-being of the Yarra Valley, especially in value-adding to the regions rural sector and contributing to the growth of the tourism sector.

_(2) However, the Yarra Valley is not well represented with overnight accommodation for visitors, has little provision of facilities at the upper end of the market (i.e. a lack of four of five star facilities), is mainly represented by small establishments including B&B's and self contained cottages, and is characterised by shorter length of overnight stay compared with the Victorian average."

_"(5) There is an identified opportunity for a quality resort-style hotelin the Yarra Valley. The proposed could provide much needed upmarket hotel accommodation, as well as accommodate business meetings, and would thus improve Victoria's attraction for these markets and thereby enhance the performance of the Yarra Valley (and Victoria) as a visitor destination.

(7) The proposal meets the objectives of the Yarra Ranges Shire and Tourism Victoria, as well as Statewide policies promotion regional development and employment and sustainable land use. The proposed development would improve the diversity of visitor accommodation on offer and would significantly enhance the range of quality experiences in the tourism sector, and this meets the objectives of both the Shire and Tourism Victoria."

77. We note none of Mr Henshall's evidence was not contradicted by any submission or evidence.

The weight to be afforded to the Regional Strategy Plan (RSP)

78. The Tribunal accepts that the regional strategy plan is a valuable "strategic" document that can be considered in this matter. It does not agree with one of Mr Wright's (alternative) assertions that it is no longer a relevant document. We consider Mr Biacsi gave the RSP the correct weight and emphasis in relation to Policy issues where he stated at page 19 of his evidence:

* Clause 21.03 - The State and Regional Planning Context. This Clause acknowledges that the MSS is underpinned by two important strategic policies, namely:

* State Planning Policy for the Region (formerly Statement of Planning Policy No. 3 Upper Yarra Valley and Dandenong Ranges).

* The Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan 1996 (the Regional Strategy Plan)." (Tribunal emphasis).

79. We consider it a useful strategic planning document that "underpins" many elements of the Yarra Ranges MSS, Local Policies and is reinforced by Clause 53 in the Planning Scheme. We do not agree with Mr McCaffrey's contention, or for that matter Dr Buxton's evidence that it is an overriding document.

80. We accept Mr Wright's notion that the proposed "major tourist facility" is consistent with the RSP to the extent that most relevant elements relating to such facilities are allowed for either in Clause 16.14 of the RSP, the Yarra Ranges MSS or Local Planning Policies.

81. We agree with Mr Wright's assertion that the applicants for review through the submissions of Mr Caffrey and the evidence of Dr Buxton have overstated the relevance of some aspects of the RSP and in particular Clause 16.16 of that document. They have placed too much weight on the purported prohibition of the development as an "hotel".

82. We note there is no definition of hotel in the current edition of the Regional Strategy Plan. We acknowledge that there was previously a definition of hotel in the RSP. A previous definition of hotel in the RSP was:

"means a facility, other than as major tourist facility, in respect of which a General License renders the Liquor Control Act 1987 is issued or required to be issued."

The reference to general licences reflects the definition of "hotel" in the pre-VPP Planning schemes which, in the absence of a definition in the RSP should most likely apply.

However, those definitions are not applicable to this proposal, because:

(a) the RSP definition excludes a major tourist facility, which is this proposal,

(b) whilst the facility could have been licensed under a general licence under the Liquor Control Act 1987 at that time, it was not required to be issued. The most appropriate licence under that Act would have been a residential licence which applied to facilities with 20 bedrooms or more.

The Tribunal does not consider that Clause 16.16 of the RSP applies as a prohibition which it should apply, as the RSP has been subsumed by the VPP Scheme. Even if the contrary was the case, Clause 16.16 on its own terms does not apply to this proposal for the reasons stated above.

83. Clause 16.16 in fact is referring to the colloquial "pub". We think that it would be inappropriate to describe the subject application as a hotel or a pub. We note the proposal is more akin to a "residential hotel" and that it will contain the following features:

* Business centre to cater for Conferences, meetings and functions.

* Cellar door facilities including a small ancilliary shop.

Such facilities are not commonly associated with a "pub".

84. In this case we feel it is necessary to spell out the distinction between a hotel or "pub" and a residential hotel because of Mr McCaffrey and Mr Buxton's lack of recognition of this issue. The definition in the Yarra Valley Planning Scheme of hotel is "land used to sell liquor for consumption on and off the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling." This definition is included within the nesting of "food and drink premises". The definition of "residential hotel" is "land used to provide accommodation in serviced rooms for persons away from their normal place of residence. If it has at least twenty (20) bedrooms, it may include the sale of liquor for consumption on or off, the premises, function or conference rooms, entertainment, dancing, amusement machines and gambling." It includes the

reference to "motel" and is included in the residential building nesting section in the planning scheme.

85. We note that both Mr McCaffrey and Dr Buxton relied heavily on the notion of the premises being an hotel yet they did not acknowledge or provide any detailed discussion about definitions in the planning scheme.

86. We note Dr Buxton's submission did not address the relevance of the licensing provisions in Clause 52.27 of the Planning Scheme. We consider that his evidence over emphasised the RSP and did not give sufficient attention to the definitions and provisions of the current Yarra Ranges Planning Scheme and the extent to which the RSP is now to be implemented by various provisions of the scheme including Clause 53.

87. Section 16.01 - Regional Overview of the Recreation and Tourism section of the RSP states:

"Two of Victoria's major tourist attractions, the Healesville Sanctuary and Puffing Billy Tourist Railway, are located within the region. In addition there is significant tourist activity associated with the Yarra Valley Wine Industry. The Yarra Valley's reputation for cool climate, quality wines is spreading, with an increasing recognition of the potential for related eating and overnight accommodation facilities, in selected parts of the region."

88. One of the regional goals in Section 16.02 of the RSP is:

* "Encourage a diverse range of tourist activities and facilities in appropriate locations, consistent with identified themes". Another goal is _"improve the region's competitive strength in tourism, to encourage and provide for an increased number of local, interstate and international

overnight visitors, and to encourage their average length of stay in the region."

89. Clause 16.14 of the Regional Strategy Plan, titled "Major Tourist Facilities" states:

"Land which is proposed to be used for a major tourist facility must either be located within:

* A Township Policy Area or a Rural Policy Area (other than an Intensive Agricultural Policy Area), and be included within a zone that specifically provides for such uses; or

* The Townships of Warburton, Healesville and Yarra Glen, where the use may be allowed subject to a planning permit."

"Hotels may only be allowed within commercial or activity centres in Township Policy Areas, and must be controlled to protect the amenity of residents, and the visual and environmental quality of the area."

91. We consider the most appropriate approach is to have regard to the current definitions of Hotel and Residential Hotel in the Planning Scheme and not rely on Clause 16.16. We consider it is clear from both the RSP and the current scheme that a major tourist facility is a use allowed by a permit.

92. Mr McCaffrey tabled an extract of the Independent Panel and Advisory Cmmittee report on the VPP based Yarra Ranges Planning Scheme March 1999 to support his argument and Dr Buxton's evidence about the importance of the Regional Strategy Plan. Mr McCaffrey highlighted the following quote:

"The Committee has no doubt that the Region's need for special treatment and protection afforded by the RSP and its statutory safeguards remains and should continue to remain as the Regions special qualities are constant.

The Tribunal accepts this statement but considers it should be read in the context of the following paragraphs (With Tribunal Emphasis).

In the Committee's view, the protection of this special Region is largely afforded by the statutory recognition of the RSP in the Planning and Environment Act 1987. The mere translation of the provisions of the RSP into the Planning Scheme, as indeed has in the main been done, without this statutory protection would render the four principles incorporated into the RSP extremely vulnerable and susceptible to their gradual erosion and ultimate loss.

Because of the linkage with the RSP, the Yarra Ranges Planning Scheme is, almost of necessity, very complex - indeed, one of, if not the most complex in the State. Difficulties relating to its drafting arising from not only the linkage with the RSP but also the incorporation into the Scheme of the four former shire planning schemes and the requirements of the VPPs have been discussed earlier in this Report - see Section 2.2. This section also comments upon Clause 53 and its Schedule which has been introduced to facilitate consistency between the Planning Scheme and the RSP in accordance with Section 46F of the Planning and Environment Act 1987.

The introduction of this Clause is a welcome continuing recognition and commitment to the Region and to the importance of the RSP by the Government of its expression of the strategic land use planning policies it wants implemented in the Region.

93. Mr McCaffrey also referred to the following sentence at page 59 of the Panels report which the Tribunal agrees:

The Committee applauds the Government's decision to reconfirm its commitment to the RSP.

"Although the Committee also strongly supports retention of the RSP, it considers the RSP should be reviewed within the next three years given it has not been reviewed since 1992 and then not in any substantive way. However, such a review should be limited to a consideration of the RSP in light of the aims and policies stated in Schedule 1 of the RSP and the current context, pressures and constraints, including changes in the agricultural and viticultural industries and new forms and demands for tourist facilities. In this context, it should consider whether the RSP adequately and correctly implements the aims of Schedule 1 but it should not be used to revisit issues of importance and significance in the Region and the containment policies which seek to prevent further urban expansion and protect valuable environmental resources.

Such a review should consider ways of fine tuning (tweaking) the RSP. This should involve reworking and revamping the terminology of the RSP to ensure greater consistency with the VPPs, provided the strategic intent is unaltered. For instance, a name change to Policy Areas in the RSP is desirable so that the linkages between the RSP and the Planning Scheme, particularly its MSS and local policies are more evident."

95. We also note that Dr Buxton referred to a portion of the panel report which states:

"Time after time, day after day, the panel was confronted by requests for rezoning to enable subdivision.. clearly contrary to the intent of the [regional strategy plan]...If each such request had been granted...the incremental effect would involve many hundreds of hectares of land in the Shire being now available for subdivision and housing...the panel was continually astonished at the number of submissions which were made to rezone land to enable subdivision where the land was clearly a fraction of the [minimum subdivision size] under the existing or new scheme."

96. We acknowledge however the Tribunal must have regard to the full context to the debate that occurred in that report. The initial remarks quoted by Mr McCaffrey in themselves appear to add strong weight to the relevance of the RSP and his argument. But as the panel's report referred to the very complexity of the Yarra Ranges Planning Scheme and the importance of providing reinforcement of the RSP through Clause 53 we obtained a different impression of the context of the RSP to that made by Mr McCaffrey and Dr Buxton. Furthermore, the second set of quotes listed above clearly indicates the need for fine tuning of the RSP to ensure greater consistency with the VPP. Its not the other way around.

97. We agree with Dr Buxton's reference to the "understandable" concern about the proliferation of requests to the panel for rezoning to enable subdivision, but that is not the issue in this case, and the position of the objectors south of the road could be cited as examples of what is now regarded as inappropriate subdivision in the area.

98. We are satisfied by the evidence of Ms Hui and consider she was correct in taking a somewhat conservative approach to assessing the likely emission of noise from various uses on the development site.

99. We acknowledge the evidence of Mr Harding, we note that most of his criticisms were directed at the "Bassett" report to the Responsible Authority and in particular some of the calculations undertaken by Bassett. However, Ms Hui was able to explain the reasons for her approach and clarified noise readings undertaken by Bassetts. We are largely satisfied that the various buildings will be designed to limit the escape of noise to adjoining properties and we consider it is appropriate to insert a condition (No. 15) limiting external sound amplification equipment, loud speakers, sirens or other audible signalling devices and amplification of music outside of buildings.

100. We acknowledge the concerns raised by Mr Harris and other objectors about potential noise from service vehicles including beepers operating on vehicles that reverse, but we consider the likelihood that such beeping noises will be experienced by residents more than 200 metres from such noises source remote. We note that most deliveries to the residential hotel complex will actually take place within the confines of buildings and therefore noise from most reversing movements will be localised.

101. We acknowledge concerns about noise escaping from the winery but we are satisfied, through the evidence from Ms Hui, that noise from the winery and restaurant will be within acceptable State Environment Protection Policies, and that Condition No. 37 will adequately address these issues.

102. We accept the evidence from Mr Poulton about the likely impact of external illumination from the subject site. We are prepared to accept Mr Poulton's recommendation regarding the erection of a sign requesting drivers to use low beam within the site and when exiting the site. We consider drivers will not need to use high beam within the site owing to various forms of illumination along internal roadways. We also doubt that the Harris household (some 200 metres from the egress point of the site) will suffer irreparable loss of amenity by lights from turning vehicles shining into windows of the dwelling. The recently constructed Harris house is oriented to the east, and it contains no curtains in bedrooms or living rooms. It is substantially shielded by water tanks and the recently erected trellis on the north-east corner of the decking area. The Harris's have undertaken little landscaping of the property at this stage, but we were informed by Mr Harris during the inspection that he intended to commence landscaping when the weather and conditions were more suitable for such. We would expect that the property would be landscaped and that trees and shrubs would be planted around the house and, if necessary, some screening erected, which would assist to shield exposure to turning lights which are some 200 metres.

103. We consider Mr Fries has a legitimate concern about the exposed appearance of the front of the winery buildings and in particular the corrugated iron shed portion of the winery. We consider the appearance of this large building can be ameliorated by the placement of a row (or more) of non indigenous trees in front of the access driveway to the winery. It is appropriate that trees should be capable of reaching a height of 12 to 13 metres within a short time, i.e. 3 to 4 years. Mr Dance is the most appropriate person to determine the specie of tree and the height of tree at planting and that such planting should be complimentary to the development and other landscaped treatment on the site.

104. The concern raised by Mr Fries about the appearance of exposed areas such as car parks and the front dam can be adequately treated by landscaping as proposed in Mr Dance's plans. Whilst part of the site may look unpleasant during the construction phase, this would quickly be rectified by the various landscaping treatments.

105. We accept the evidence of Mr Tucker about the adequacy of car parking and traffic treatments for the site. We consider car parking numbers per se are adequate for the proposed uses. There may be occasions which would warrant use of internal road verges for overflow parking. The treatment seems sensible and logical.

106. We consider the verges can be properly maintained in good order and that if such verges become waterlogged that the proponents can make alternative arrangements for overflow parking. Having said this we consider most likely time this would occur would be in winter or early spring, that is, times when large functions or festivals are unlikely to take place at the venue/tourist accommodation. Accordingly we consider the use of verges for overflow parking to be appropriate and we doubt that vehicles would become bogged with any regular frequency.

107. Mr Koops was critical of Mr Tucker's data collection regarding hotels. We note Mr Koops provided no alternative evidence or data which could in any way refute the findings of Mr Tucker.

108. Having viewed the stables and condition of Mr M. Ashton's property we do not consider the proposed hotel/tourist accommodation would have detrimental impact on his training/stabling facilities. We consider those facilities are sufficiently separated from the use by distance and substantial planting.

109. We note that Mr Ashton has undertaken substantial planting over recent years, much of which already screens part of the house, outdoor recreation areas, the stables and horse mounting areas. We consider this vegetation is likely to mature and further screen the site from view. Our observations from the site of the hotel satisfied us that the Ashton's would not experience any substantial loss of privacy. Mr Dance's proposals will improve the situation.

110. There was no detailed discussion of conditions imposed by the Responsible Authority. We examined the revised conditions forwarded by Rigby Cooke Lawyers. We have found it convenient to rely on most of the conditions agreed to by the applicant and the Responsible Authority. We have however, taken note of the various responses and made changes where we found it necessary. Having said that we consider it inappropriate and impractical to place a restriction on the construction of a hotel until the vineyard is in operation. Rather we consider it more appropriate to tie compliance with landscaping and operation of the vineyard to the "opening" of the hotel/major tourist accommodation.

111. We have chosen not to insert the conditions recommended by Mr Harding because we consider condition 37 is all embracing and it is appropriate to leave it to the building designer and the acoustic engineer to ensure the building is designed to meet the State Environment Protection Policies and the criteria in that condition.

112. We consider the condition regarding lighting is acceptable in its current form.

113. The proposed hours of the restaurant to be appropriate.

114. We have inserted conditions regarding additional screened planting in front of the large/high winery building to address some of Mr Fries's concerns.

115. With regard to enforcement matters raised by Mr Harris we consider these are a matter for the Responsible Authority. It is normal practice for a Responsible Authority to police permits. We see no reason why this normal procedure should not continue.

116. We consider the very nature of the uses and development proposed rely on a rural setting. The proposal Tourist Accommodation is inexticably tied to a rural setting and it is appropriate to locate it in such setting.