1. The decision of the Responsible Authority in permit application no. TPA 2007-500 is varied. A permit is granted and must be issued. The permit relates to the land at No. 5 Bolton Street, Echuca. The permit will allow:
   • development of a second dwelling on the land;
   • buildings and works in a Land Subject to Inundation Overlay, Floodway Overlay and Heritage Overlay;
   • subdivision of the land into two lots;
   • construction of a fence;

1. The permit is subject to the conditions set out in the Notice of Decision dated 25 February 2008 varied as follows:
   • In Condition 1(d) replace the word "proved" with the word "provided".
   • Add a new part (e) to Condition 1 as follows:
     1. The front fence reduced in height to no more than 1.5 metres.
   • In Condition 2 replace the words "The use must not commence" with the words "The development must not commence".
   • In Condition 9, delete the first sentence.
   • Replace Condition 16 with the following:
     1. This permit will expire if one of the following circumstances applies:
        1. The subdivision is not started within two years of the date of this permit as evidenced by a Plan of Subdivision being certified by the Council and the Certified Plan of Subdivision is not registered within five years from the date of the Certification of the Plan.
        2. The development is not started within two years of the date of this permit and is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

• In Condition 17, delete part (c). [The Council may wish to include this in a covering letter].

Construct a part single/double storey dwelling behind an existing dwelling. The new dwelling would contain four bedrooms, two of which are marked as for guests. Living areas would face the Campaspe River to the rear, around 18.5 metres from the top of the bank. The elongated double storey component would contain two bedrooms with amenities. A double car garage is proposed. The existing dwelling would retain a carport with a new 1.8 metre high front fence.

Subdivision of the land into two lots, one of 344 square metres and the second (to contain the proposed dwelling) of 1,199 square metres. The larger rear lot is battle-axe in shape relying on an existing driveway.

• Residential 1 Zone and Urban Floodway Zone.
• Heritage Overlay (Schedule 1); Land Subject to Inundation Overlay; Floodway Overlay.

• Construction of two dwellings on a lot and subdivision under Clause 32.01 (Clauses 55 and 56 apply).
• Subdivision, buildings and works in HO1 including construction of a fence under Clause 43.01.
• Subdivision, buildings and works in the Land Subject to Inundation Overlay under Clause 44.04 and the Floodway Overlay under Clause 44.03.

Clauses 11, 12, 14.01, 15.01, 15.02, 16.02, 19.01, 19.03, 21, 22.03 (Heritage Policy for Residential Areas - Echuca Central), 65.01 and 65.02 decision guidelines.

The property is 1,530 square metres and is located on the south-west side of Bolton Street. It comprises multiple lots and abuts the Campaspe River to the rear. It has a street frontage of 19.96 metres with two driveways and crossovers. It contains a single storey dwelling positioned toward the street.

The site abuts several single storey dwellings to its boundaries, one of which is Mr Lowrie's property at No. 101 George Street. George Street is unsealed and leads to the River. Mr Lowrie's house is closely positioned to the rear portion of the review site with habitable room windows facing south.

1. Mr Lowrie resides in a single storey dwelling that is located to the north/north-west of a site where the Campaspe Shire Council has determined to grant a planning permit for a second dwelling and for a two lot subdivision. Mr Lowrie opposes the proposed dwelling and subdivision on several grounds and asks the Tribunal to set aside the Council's decision.
2. In deciding whether a permit should be granted and, if so, what conditions should apply, the key issues raised in submissions presented by the parties are whether the second dwelling and subdivision:
   • respond in an acceptable way to heritage and neighbourhood character objectives contained in the Campaspe Planning Scheme.
   • would have an acceptable effect on neighbours' amenity in terms of overlooking, visual bulk and loss of privacy.
   • would cause inappropriate outcomes with respect to the operation of the floodplain and the safety of life and property.
3. Having considered all submissions with regard to the provisions of the Campaspe Planning Scheme, and having inspected the site and locality[1], I will vary the Council's decision by making some minor changes to permit conditions. The reasons for my decision follow noting that I do not recite all of the material presented by the parties as all documentation is retained on the Tribunal's file.

Does the proposal satisfy heritage and character objectives?

1. The review site is within a Heritage Overlay but recent investigations by the Council indicate the planning authority is likely to pursue the deletion of HO1 as it applies to Bolton Street. This is because the heritage assessment has found the area is no longer worthy of heritage protection given little heritage fabric remains. This possible change to the heritage status of the land and environs is at the core of the one of the issues raised by Mr Lowrie. His written objection to the Council with respect to the permit application refers to changes in the heritage area including the loss of much of the heritage stock. He opposes the double storey form of the proposed dwelling in a location where there are no double storey houses. A related concern is approval of the proposed dwelling would add to the changes that have impacted upon the area's heritage character. Mr Lowrie contends the proposal is an over-development.
2. Heritage considerations are narrower than neighbourhood character considerations, which are assessed under different controls and policies within the Scheme. Despite that, I address heritage and character together for the purposes of these reasons mindful that Clause 22.03 has policies that apply to sites with significant and non-significant buildings.
3. It is true that the area of the review site is nearly wholly single storey in built form. Double storey structures are found at the northern end of Bolton Street, associated with a school, with less than a dozen double storey houses in a much wider area bounded by the Campaspe River, the Cohuna-Echuca Road, Dickson Street and Crofton Street (all of which is within HO1). It is also correct that limited heritage stock remains in the immediate environs of the review site although there are several period dwellings in Bolton Street and more in nearby streets. There are no submissions that the dwelling on the review site has particular heritage significance.
4. An assessment under the heritage provisions of Clause 43.01, assisted by the local policy at Clause 22.03, must consider the reasons why HO1 (Old Echuca township and Victoria Park) is significant. The local policy helps to explains this. From there, I must consider whether the proposal (being the new dwelling, fence and subdivision) would adversely affect the significance, character and appearance of the heritage place (the whole of HO1) and whether the proposed works would be in keeping with the character and appearance of adjacent buildings and the heritage place.
5. The local policy, specifically relating to Echuca Central, emphasises the retention and enhancement of the area's character. The objectives include to encourage new development that complements the existing built form in terms of height, scale, form, materials and colour. Another objective is to discourage the development of the rear yards of residential buildings that are not significant in favour of full development of the site to complement the streetscape. Furthermore, there are objectives to ensure the redevelopment of sites for multi-unit developments meets the objectives of ResCode and Clause 22.03 and does not result in an unreasonable over development of the site in the context of the character of the area.
6. Some of the relevant policies from Clause 22.03 are:
   • discourage front fences of more than 1.2 metres in height except where it would be sympathetic with the character of the area.
   • encourage residential buildings to be setback from their side boundaries in accordance with the prevailing setbacks on adjoining properties except where the applicant can demonstrate that a varied setback would be sympathetic with the character of the area.
   • encourage residential buildings to be no greater in height than the prevailing heights within the character area except where the applicant can demonstrate that an increased height would be sympathetic with the character of the area.
7. There are also a number of objectives relevant to subdivision, such as to encourage residential lot sizes that are able to provide setbacks, open space and landscaping opportunities consistent with the prevailing characteristics. A policy is to encourage subdivision and development of allotments that do not contain significant heritage buildings as determined by the Responsible Authority where the full redevelopment of the site is proposed. The retention of a non contributory building in the streetscape and part redevelopment of the lot is discouraged as the overall development will not maximise the opportunities of the site in the context of the streetscape.
8. I can appreciate the basis upon which the Council says the area has limited heritage building stock but I am less persuaded to accept Mr Harland's submission that the area of the review site has no definitive character. Despite diversity in dwelling styles, there are identifiable elements including the low key single storey scale and some pattern in roof forms, open front gardens, side setbacks, building heights and building materials. The subdivision pattern is very diverse with a range of lot widths and configurations including the unusual form of George Street. The presence of vegetation varies with the Riverside canopy being an obvious and attractive component.
9. I first refer to the proposed subdivision. The battle-axe lot is an acceptable response to the site's varied subdivision context. The land comprises multiple titles and the proposal will rationalise those. The location of the dwelling to the front of the lot leaves a developable space to the rear - although flooding considerations are significant as to how and whether the development opportunity can be realised. In the context of the proposed subdivision, the battle-axe format is acceptable given there are already two driveways into the site and some varied driveway layouts nearby.
10. It is true the proposed subdivision does not involve the removal of the existing dwelling to enable the redevelopment of the site as a whole as is encouraged by the local policy. However, the type of proposal involved here can lawfully be applied for and must be properly assessed even though local policy might prefer an alternative approach with the aim of achieving streetscape benefits. Moreover, here, the retention of the dwelling seems reasonable because it has a form that is sufficiently respectful of the definable characteristics of this locale.
11. I next refer to the form of the proposed dwelling. The proposed dwelling would be visible within its context given it would be higher than existing houses. It would be positioned behind the existing dwelling with the double storey component visible along the driveway. The ground level would extend from boundary to boundary but that would not be appreciated from the street. The upper storey is a small proportion of the overall building footprint. The double storey component would be setback 3 metres from one side boundary and only 4.48 metres wide. The boundary garage would be recessed behind the front façade at first floor level.
12. The dwelling's architecture differs from the existing house and it would introduce a new taller structure with a flat roof into this street. In forming my view the outcome is acceptable in heritage and neighbourhood character terms, I have been influenced by the dwelling's position on the site, the limited first floor element, the extent of land that would not be developed, and good opportunities for planting along the 4.65 metre wide driveway. While there is benefit in developing sites as a whole, the new dwelling is sufficiently respectful to its context without replicating existing forms.
13. It would be hard to say that there is a consistent open 'backyard-scape' in this location given the irregular lot pattern and house positions. From the south, the proposed dwelling would appear as a single storey form (as seen from No. 3 Bolton Street and No. 14 Warren Street) while the dwelling would abut open space of No. 7 Bolton Street. Mr Lowrie's dwelling is sited toward a rear corner of his lot with a narrow setback from the common boundary with the review site. There are some deciduous trees along this common boundary. The proposed dwelling would be to the south-east of his dwelling. On balance, and given the fairly low profile of the building and the extent of the lot that would not be developed, I find the proposal does not represent an over-development in the unusual context of this area.
14. While the focus of the Applicant's case was visual bulk and the style of the proposed dwelling, I have some concerns about detailed aspects of the design not raised by Mr Lowrie. One is the high front fence. When I asked about the proposed fence treatment at the hearing, Mr Gilchrist indicated that there is a mix of front fence treatments in the street with some high fences despite the Heritage Overlay and local policy that seeks fences to 1.2 metres in height. There are some limited examples of high fences but I find the predominant pattern is low or open fencing with exposed front gardens. Fences to a height of 1.5 metres are referred to in Standard B32 of Clause 55 and I am persuaded a lower fence form is necessary in this case. I note that there is an area of secluded open space proposed to the rear of the existing dwelling that, even though complying with Rescode's numerical standard, is confined. I expect there would, therefore, be some reliance on the front setback. Even so, a fence to 1.5 metres would be a more appropriate streetscape outcome and would accord with Rescode standards.
15. Another matter is the use of two crossovers/driveways. In a more intact heritage context this would not be acceptable and it might also be problematic in character terms. The outcome is not ideal but it is an existing situation. I am not persuaded the proposal should fail on this point.
16. In summary, although I agree with Mr Lowrie that aspects of the proposal might be said to depart from the existing character and local policy, on careful review and having regard to the specific circumstances of the site, I find the proposal sufficiently respects the existing character subject to a varied front fence treatment. No heritage buildings or identifiable heritage values would be negatively impacted by the proposed subdivision or house.

Does the proposal give rise to unreasonable off-site amenity impacts?

1. Mr Lowrie submitted the proposal would cause unreasonable off-site amenity impacts with respect to his privacy and enjoyment of his property.
2. I have referred above to the relationship of Mr Lowrie's dwelling to the proposed dwelling. The double storey component would be located a minimum of 9 metres from the south-east corner of Mr Lowrie's dwelling. Most of the direct abuttal between Mr Lowrie's property and the proposed rear lot and dwelling would be open space. There would be oblique views to the new dwelling from the Lowrie property and although the dwelling would be seen from that land, and potentially George Street, there would be no building abutting the area around Mr Lowrie's home that is used for open space and some structures. I note the presence of deciduous trees along Mr Lowrie's boundary, behind the dwelling, that would assist too with some visual screening.
3. In my view, the visual impact of the double storey component would be much greater to the land at No. 7 Bolton Street that, having regard to a sign on the land, has recently been sold. The standards of Clause 55 are met with respect to this interface and it is on this basis that the Council has assessed the relationship to be acceptable.
4. The northern elevation of the proposed dwelling has highlight windows and some screening to a rear deck. This would prevent unreasonable overlooking. Conditions on the Notice of Decision propose additional screening at ground and first floor levels to limit the potential for overlooking from two bedrooms and a balcony. This is appropriate given the potential for oblique views toward Mr Lowrie's property from the upper level as well as ground floor rooms given the raised floor levels.

Would the works adversely affect the operation of the floodplain?

1. The review site is within a Residential 1 Zone and an Urban Floodway Zone. It is self-evident from the land's abuttal to the Campaspe River that the potential for flooding could be an issue. Indeed, a dwelling is prohibited in the Urban Floodway Zone and thus the development can not proceed today. However, the Council has embarked on Planning Scheme Amendment C49 with the intent of varying the boundaries of the Urban Floodway Zone including with respect to the review site.[2] That Amendment has proceeded through a Panel hearing, with a favourable report with respect to the review site. The Amendment been adopted by the Council. It has the status of a seriously entertained proposal.
2. As a dwelling is prohibited in the Urban Floodway Zone, the Council has included a condition on the Notice of Decision that:

The use[3] must not commence until Planning Scheme Amendment C49 has been exhibited in the Government Gazette as approved. The amendment must incorporate zone and overlay alterations to the subject land consistent with the North Central Catchment Management Authority letter and attached plan dated 16 February 2007.

1. Mr Lowrie expressed concern about the appropriateness of a new dwelling in a location he said would be entirely inundated with floodwaters. He drew attention to the fact that a previous permit application was refused by the Council for several reasons including the potential for flooding. He submitted the proposal is at odds with the Local Floodplain Development Plan and questioned the basis on which the boundary of the Urban Floodway Zone and Overlays are being moved. Mr Lowrie referred to Clause 15.02 in support of his position that the dwelling is too close to the waterway (compared with 30 metres as referred to in the Clause). He said the proposal involves filling that is usually discouraged and should not be allowed. He drew attention to my decision in Director of Housing v Greater Shepparton CC [2006] VCAT 501 in support of his submissions.
2. Most influential to the Council's decision has been a review of the 1% AEP probability flood levels by the North Central Catchment Management Authority and the Authority's preparedness to support the permit application based on its assessment against the Local Floodplain Plan.[4]
3. Ms White explained the basis of the Authority's position. She said there is a long history of flooding in Echuca, from either or both of the Murray and Campaspe Rivers, with 1870 being the largest event recorded. She presented a plan showing the review site and wider area with the flood levels from 1870, 1975 and the declared 1:100 year flood level. The 1:100 year level is declared at 95.40 metres AHD although this does not mean the land beyond the flood level would be totally unaffected by waters. The plan shows much of the review site would have been inundated in 1870 and would be affected by waters at varying depths in a 1:100 year event. She said the Authority is satisfied the proposed dwelling would not impede floodwaters as it would be setback further from the top of the bank of the Campaspe River than existing dwellings. In addition, the recently erected boundary fencing abutting the bank is open and would allow waters to enter the land. She said the loss of flood storage would be minimal and presented a plan showing residents would have a safe egress from the site at a water depth of less than 0.5 metres. Noting a 30 metre setback from the top of bank would be preferred in a greenfields context, Ms White 20 metres is acceptable in this infill setting mindful of the location of other houses.
4. The presence of the Urban Floodway Zone and multiple Overlays clearly highlights potential issues with the further development of the review site. These controls share common purposes with respect to the free passage of waters and storage function of floodplains. That is in terms of flood storage capacity and flow velocity. There is an emphasis on matters such as ensuring a development is safe for residents and potential emergency services staff, ensuring neighbouring properties would not be adversely impacted, ensuring the costs associated with flood damage are minimised and ensuring a new development is sufficiently setback from a waterway.
5. The information presented by the Authority is the latest and best available. There is nothing before me to contradict it. I have heard many cases where a local floodplain authority has objected to permits and participated in Tribunal hearings where it assessed the outcome of a permit application to be unacceptable based on important floodplain considerations.[5] That is not the case here. The Authority's assessment indicates occupants of the dwelling would have safe exit passage (below 0.5 metres in water level) and other properties would not be adversely affected by the proposed dwelling. The setback of the proposed dwelling from the River would be greater than existing dwellings and has been found by the Authority to be acceptable in the infill context. I have considered the provisions of the incorporated document, the Campaspe Local Floodplain Development Plan - Precinct of Echuca. Changes to it are proposed in Amendment C49, as referred to by Ms White. On the basis of Ms White's submission, I am satisfied that the proposal accords with the requirements of that Plan for the reasons given above. It also accords with the subdivision requirements noting the proposal will reduce the number of existing lots.
6. The situation of the review site and proposed second dwelling is different to that before me in Director of Housing. There, occupants of the proposed dwelling would not have had safe passage from the unit, with the footpath and road access up to 840mm lower than the designated flood level.
7. In summary, while I appreciate the concerns held by Mr Lowrie with respect to flooding along this part of the Campaspe River, I find the proposal to be acceptable based on best information available at this time.

What about other matters raised in objections provided to the Council?

1. Objections to the permit application lodged with the Council refer to a number of other concerns that were not relied upon by Mr Lowrie's statement of grounds or the submissions he presented at the hearing. They were, however, addressed by the Respondent. I record that none would have caused the proposal to fail given there is no removal of vegetation associated with the proposal and compliance is achieved with Rescode.

1. For the above reasons, I am persuaded the proposal represents an acceptable outcome in terms of the provisions of the Campaspe Planning Scheme. In forming that view, I have been influenced by the information presented by the North Central Catchment Management Authority indicating that the proposed dwelling is acceptable in terms of the operation of the floodplain and the safety of occupants and emergency services. I will therefore direct the grant of a permit but I will vary several of the conditions contained in the Notice of Decision to address some minor errors and to reflect some comments made by the parties at the hearing the address the fact that some boundary fencing has been constructed (with approval).

[1] I inspected the site and locality before the hearing and again after the hearing when I also visited Mr Lowrie's property.

[2] The Amendment deals with other changes to the Urban Floodway Zone in other parts of the Shire. I understand there were no submissions relating to the review site. I note the land is referred to as 8 Bolton Street and was told this was an error.

[3] I raised with the parties the wording of this condition given no permit is required for use in the Residential 1 Zone. It was agreed that no development should commence before Amendment C49 is approved.

[4] Subject to the finished floor level being at least 300mm above the declared flood level of 95.40 metres AHD - as shown on the plans.

[5] Including Director of Housing v Greater Shepparton CC [2006] VCAT 501.