Following its consideration of submissions and evidence, the Panel reached the following key conclusions:

• there is broad strategic support for the proposal
• flooding issues, while important, are not a reason to reject the proposal
• any environmental impacts will be limited
• there are unlikely to be any significant traffic issues.

The key issue discussed during the Hearing was the flooding of the Inverloch-Venus Bay Road that provides the only road access to Venus Bay. The WGCMA submitted that flooding of this road was a significant community hazard and because of this no additional residential lots should be created in Venus Bay.

Although the Panel acknowledges the WGCMA's concerns, it has had to assess the nature, frequency and extent of the flood risk, and have regard [to] risk to management strategies and the small number of additional lots that will be created. The Panel has also had regard to the broader community benefits that might result from the proposal and concluded, on balance, that it should proceed.

1. At the time of my decision, as far as I am aware, Amendment C109 has not been approved by the Minister and gazetted.
2. It is clear to me that the Panel gave weight to the community benefit derived from retaining the caravan park and that was influential in balancing all relevant considerations. As I discuss below, there are not, in my view, wider community benefits or strategic support for the permit application before me.
3. Moreover, since the C109 Panel report, Amendment VC148 has been introduced into the scheme. Clause 13.03-2S (among other things) focuses on risk-based planning to mitigate the impacts of climate change. The Victorian Coastal Strategy (2014) identifies Victoria's lowest lying coastal areas to be at risk. The access to Venus Bay crosses one such area. Moreover, it is not clear to me when reading the C109 Panel report that the combined effect of coastal inundation and flood hazard along with coastal erosion has been assessed.

Section 173 agreement

1. A possible section 173 agreement as a permit condition, included within the Council's 'without prejudice' draft conditions, was discussed at the hearing.

1. The proposed condition states in part that road access to the land may be detrimentally impacted by coastal climate change and associated inundation which may affect the owner's use and enjoyment and access. It continues in part that the Council takes no responsibility to provide alternative access or egress.
2. Mr Holland opposes this condition and describes it as unfair. He refers to findings of the C109 Panel in this regard.[17] Mr Berger does not rely on it, insofar as he submits the condition is not a substitute for orderly planning.
3. As I have determined not to allow the application, I do not need to explore the possible use of a section 173 agreement further.

1. The applicant has highlighted the possibility of an alternative emergency access in times of intermittent flooding of the main access road into Venus Bay. Mr Holland has explained his approaches to the Council and WGCMA including an offer by the WGCMA to participate in a study.
2. The implications of one-road-in and one-road-out are plainly known to the Council. Studies into alternative public access and egress opportunities are for the Council and other stakeholders to undertake. The level of priority given to it is a matter for others, not this Tribunal. For the purposes of this permit application, there is no public, safe, alternative available today.

1. Venus Bay is a low key coastal village comprised of three estates. Its capacity for development and growth is affected by a range of infrastructure and environmental considerations. Bushfire, Aboriginal cultural heritage, acid sulphate soils, coastal erosion, sea level rise, and the lack of reticulated water and sewerage are some of the important considerations in addition to others already referred to such as vegetation management, township character and flooding. These are identified in the reference document, Urban Design Framework Draft Settlement Background Paper Venus Bay 2006.
2. Some of these considerations underpin the suite of specific policy and controls reflected in clause 21.15-9, ESO7 and DDO5. Among the evident themes are maintaining the current density and directing any expansion to identified locations, and managing the timing of that until specified "Development Prerequisites have been met", being:
   • a significant proportion of vacant lots within the Township Zone and Low Density Residential Zone have been developed
   • reticulated water and sewerage is available
   • further investigation is undertaken to confirm the extent of potential problems associated with acid sulphate soils and flooding

• further investigation is undertaken to confirm the location of sites of recognised cultural and heritage significance
• further investigation is undertaken to confirm the location of sites of recognised environmental significance

1. Further strategic work is nominated in clause 21.15. These 'prerequisites' relate to town expansion but are indicative of a need for the orderly development and growth of Venus Bay given the significant constraints faced. That in turn means the existing low key character will likely be retained in the foreseeable future as, for example, there is no indication that reticulated services are to be installed.
2. I consider that there is a reasonable expectation and anticipation that vacant lots within the identified township will be developed. The question arising from submissions in this case is how this expectation relates to the proposed intensification and increased density of more than one dwelling per lot.
3. I agree with Mr Holland that:
   • The scheme does not preclude two dwellings per lot nor does it expressly state that two dwellings on larger lots should be refused.
   • Household/people and building density are different - the two small dwellings on each lot may have a similar number of bedrooms and occupants when contrasted with some large detached dwellings that have been constructed.[18]
   • The Amendment C109 Panel supported some expansion of the township and additional lots with development potential.
4. However, there is no strategic imperative to increase density based on the position expressed in the scheme. The reverse applies insofar as policy seeks to maintain the existing density until key issues are addressed.
5. Mr Holland submits that the proposal maintains the current density. In total, there may be a similar number of bedrooms when comparing very large homes with two small dwellings per lot. But the four proposed dwellings increase the dwelling density and, even with their small size, could accommodate multiple persons, permanently or seasonally. Potentially more people than in the larger homes. The on-site parking provision would facilitate this albeit that is not determinative. As already indicated, single dwellings are not subject to the same assessment as the application before me.
6. There are many lots of a similar size as the subject land, including along Canterbury Road and Bradley Avenue. The scheme map extract below shows the predominance of smaller lots when compared with the subject land. However, there are also large lots, such as along this section of Canterbury Road. The capacity of lots of, say 600m2 to contain wastewater for two dwellings may be more doubtful, but there are other lots similar in proportion to the subject land where intensification could occur in the same manner as proposed in this application.

1. It is always the case that each application must be assessed on its merits, based on the facts and circumstances that apply at the time. However, I consider the proposal would provide an undesirable precedent with respect to the orderly development of Venus Bay.

1. The existence of a dwelling on larger lots does not mean that these would be precluded from being considered for redevelopment with two dwellings. Older dwellings may be demolished so that land can be redeveloped. This type of change, to which the proposal could incrementally contribute as a precedent, departs from the current strategic direction set out in the scheme which is for a restrained and tempered approach.
2. This is not to suggest that there can never be dual occupancy development approved in Venus Bay. Rather, in the current context (and similar to the issues of flooded access and coastal climate risks) there are strategic considerations relating to the orderly development of Venus Bay that persuade me the proposal does not have strategic support. It does not have the counter-balancing considerations that are the subject of the C109 Panel conclusion.

GRIEVANCES ABOUT COUNCIL'S PROCESSING OF THE APPLICATION

1. Mr Holland's application for review and submission at the hearing provide extensive criticisms of the delegate's report to the Council. I have read this material and do not recite it all. Among the wide-ranging comments and criticisms are the Council officer's:
   • Failure to refer to pre-application discussions with, and drawings and material provided to, the Council.
   • Failure to identify flooding as an issue prior to the section 52 referral to the WGCMA.
   • Failure to refer to any 'in principle' concerns about dual occupancy developments on the proposed lots.

• Failure to consider all relevant information and to provide this material to the Councillors.

1. I have responses by the Council to many of these matters, including acknowledging several errors in the officer's report.
2. None of these matters are reasons why a permit should be refused. I have the correct information to enable me to make a decision. I have been provided with a large amount of material relating to the processing of the application including exchanges between the applicant and Council as well as the applicant and WGCMA. Moreover, the omissions cited (such as a lack of reference to pre-application discussions) do not persuade me that the Council's decision should be set aside or that the reasoning for its decision is flawed.

1. Most decisions about planning permits require balancing a number of relevant considerations to reach a decision as to whether a specific proposal represents an acceptable planning outcome in the terms required by the scheme. In this case there are relevant objectives relating to climate change risks, floodplain and bushfire management, township development, and housing diversity and affordability. These are all considerations in this proceeding in addition to matters such as neighbourhood character and potential off-site amenity impacts.
2. I agree with the Council and applicant that the design response is acceptable in many respects, as set out in these reasons. Mr Holland argues that broader policy issues are over-stating the case to refuse a permit. I do not agree. I find the increased density in this proposal is not acceptable given flooding and coastal risk considerations and, unlike the circumstances relating to the caravan park land assessed in Amendment C109, there are not counter-balancing favourable strategic considerations or imperatives. The scheme makes clear that there are significant constraints on Venus Bay's development until such time as key issues are addressed.
3. Therefore, the Responsible Authority's decision is affirmed. No permit is to issue. I appreciate that this case potentially has wider implications for other township-zoned land because there is only one access route into and out of Venus Bay. This is recognised in strategic planning work undertaken by the Council. It is a matter for the Council with its community to consider infrastructure provision that would facilitate intensification of development in Venus Bay if that is desired.

[1] Subsequent to the application for review being lodged with the Tribunal, the subject land has been identified as an area of Aboriginal cultural heritage sensitivity. This was raised at the start of the hearing by myself and Mr Berger. At the hearing, I indicated that I agree with the Council's submission that the proposal is for two dwellings on each of separate and disposable lots. Each dual occupancy is designed as a separate project; they stand alone on each lot. I formed the view that the exemptions under the Aboriginal Heritage Regulations 2018 apply.