A. The Responsible Authority's decision is set aside.

B. The Responsible Authority must issue a permit for subdivision in accordance with the endorsed plans and subject to the following conditions:

1. The subdivision as shown on the endorsed plan must not be altered unless with the written consent of the Responsible Authority.

a) The plan of subdivision submitted for certification under the Subdivision Act 1988 shall be referred to Powercor Australia Ltd (Powercor) in accordance with Section 8 of that Act.

c) Enter into negotiations with Powercor prior to the lodging of a Plan of Subdivision for certification. An agreement may be required with Powercor for the supply of electricity to each lot, and for the extension, augmentation or re-arrangement of any existing electricity supply system as required by Powercor, subject to Powercor being able to provide a supply of electricity. (A payment to cover the cost of such work will be required). In the event that a supply cannot be provided the applicant shall provide a written undertaking to Powercor that prospective purchasers will be so informed.

d) Re-arrange to the satisfaction of Powercor, any existing private electric lines that cross boundaries of the proposed lots to supply existing installations. Such lines shall be constructed with underground cables.

e) Provide easements or set aside reserves satisfactory to Powercor, where easements or reserves have not been otherwise provided, for all existing and new Powercor electric lines and substations on the land required to service lots and the adjoining land, save for lines and substations located, or to be located, on public roads set out on the plan. These easements and reserves shall be 'in favour of Powercor Australia Ltd'.

f) Provide to Powercor Australia Ltd, a copy of the version of the plan of subdivision submitted for certification, which shows any amendments, which have been required.

3. This permit will expire if one of the following circumstances applies:

a) The subdivision is not started within 2 years of the date of this permit.

b) The subdivision is not completed within 4 years of the date of starting.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within 3 months afterwards.

C. Insert the following notation for advice to future land owners:

"Floor levels for habitable rooms of any proposed dwelling to be located on Lot 1 of the proposed subdivision are to be 2.75 metres AHD or greater."

Mr. Russell Guest, Town Planner, represented the Responsible Authority.

Ms. J. Lowe, Waterway Manager, represented the Glenelg-Hopkins Catchment Management Authority.

Mr. K. Liversidge, instructed by Maddens, Lawyer, represented the Applicant for Review. Mr. Liversidge called evidence from Mr. J. Bock, Civil Engineer.

1. This is an Application for Review pursuant to Section 77 of the Planning and Environment Act 1987 against the decision of Moyne Shire Council which refused application for Permit No. 2001-021.

"The Glenelg-Hopkins Catchment Management Authority, a Referral Authority pursuant to Section 55 of the Planning and Environment Act 1987, has objected to the issue of a permit. Pursuant to Section 61(2) of the Planning and Environment Act 1987 a Responsible Authority must refuse to grant a permit.

3. It is noted the Glenelg-Hopkins CMA stated in its objection:

"The land is zoned Residential 1. Flood data maps produced as part o the recent Flood data Transfer project showed a portion of the land to be in a flooded area with a flood level of 2.45m AHD. Although no detail survey is provided, all natural surface land below 1.85m AHD is considered to be urban floodway and our information indicates the whole new lot would be within the floodway area.

The Glenelg-Hopkins Catchment Management Authority is obliged to use the most recent and accurate information in assessing planning permit applications on the floodplain.

I advise that the Authority objects to the granting of a permit for the following reason:

s Subdivision of the land would place Lot 1 almost entirely within the floodway area.

This response was provided using the best information available at the time."

1. The objection by the Glenelg Hopkins Catchment Management Authority (the "GHCMA") to the grant of a permit for subdivision of the land was unreasonable.

2. The proposed subdivision is consistent with the purposes of the Land Subject to Inundation Overlay ("LSIO").

3. A building envelope suitable and safe for the construction of a dwelling has been identified on the land.

4. Safe and appropriate access is available from the land in the event of flooding.

5. The application satisfies the considerations relevant to the decision guidelines contained in the LSIO.

6. The objection by the GHCMA sets an unfair, unreasonable and inequitable precedent for landholders in this area.

5. Application for Permit No. 2001-021 sought approval for subdivision of land. The plans accompanying the application showed an existing lot which has direct access to Griffith Street would be subdivided to create two lots. Lot 1 would have a 20m frontage to Griffith Street and comprise a land area of 560sqm. Lot 2, which contains an existing house and garage would have 5.32m frontage to Griffith Street and its area would be 1346sqm. Lot 2 would have a theoretical access to Beach Street, although in reality, Beach Street does not exist. It actually forms the beach abutting the coastline.

6. The subject site is located 60.93m south of Woodward Place, an unconstructed road. It is located in that part of Port Fairy which lies between the Moyne River and the coastline (between Griffith Street and Beach Street). Access to Griffith Street is via the Gipps Street Bridge, a vehicular accessway to a popular residential destination. Griffith Street is a constructed road.

7. The proposed new Lot 1 would be almost opposite a pedestrian bridge linking the eastern side of Port Fairy with the remainder of the town. There are similar subdivisions of lots to the north of the subject site, many of these lots contain existing dwellings. There are also several battleaxe shape lots designed to allow houses to be erected on the crest of the dunes and obtain spectacular views over the coast line. The new Lot 1 would face the Moyne River which is recent years has become an attractive tourist and residential precinct focusing on boating and other recreation facilities.

8. The subject site is zoned Residential 1 under the Moyle Planning Scheme. The relevant purposes of the zone are:

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

9. A permit is required pursuant to Clause 32.01-2 to subdivide land. There was no dispute in this application regarding the appropriateness of subdividing the land, the size of the allotment or provision of services.

10. The subject site is also located within a Design and Development Overlay No.1 (Buildings in Port Fairy) pursuant to Clause 43.02-2 of the Planning Scheme. There were no issues of contention applicable to this overlay.

11. The subject site is also subject to an Inundation Overlay (LSIO). The purposes of this overlay are:

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To identify land in a flood storage or flood fringe area affected by the 1 in 100 year flood or any other area determined by the floodplain management authority.

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

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

* To protect water quality in accordance with the provisions of relevant State Environment Protection Policies, particularly in accordance with Clauses 33 and 35 of the State Environment Protection Policy (Waters of Victoria).

12. A permit is required pursuant to Clause 44.04-2 of the Planning Scheme.

13. Clause 44.04-4 requires applications to be referred to the relevant floodplain management authority under Section 55 of the Act unless in the opinion of the responsible authority, the proposal satisfies requirements or conditions previously agreed in writing between the responsible authority and the floodplain management authority.

14. There are various Decision guidelines outlined in Clause 44.04-5 of the Planning Scheme which required the Responsible Authority to consider:

- Any comments from the relevant floodplain management authority.

- Whether the proposed use or development could be located on flood-free land or land with a lesser flood hazard outside the overlay.

- The susceptibility of the development to flooding and flood damage

- The potential flood risk to life, health and safety associated with the development.

- The frequency, duration, extent, depth and velocity of flooding of the site and accessway.

- The danger to the occupants of the development, other floodplain residents and emergency personnel if the site or accessway is flooded.

- The effect of the development on redirecting or obstructing floodwater, stormwater or drainage water and the effect of the development on reducing flood storage and increasing flood levels and flow velocities.

15. At the commencement of the hearing the Tribunal was advised that the primary and only issue in this application related to the suitability or otherwise of access to the subject site. The Tribunal was advised that the applicant was able to demonstrate that flood levels for dwellings could be placed above the established flood level, ie. 2.45m AHD. The Glenelg-Hopkins CMA clarified that their objection to the application was now confined to potential problems of access to the site across land which was subject to inundation. The Tribunal therefore will confine its reasoning to the principal issue of contention.

16. Mr. Guest for the Responsible Authority, argued that it had no objection to the Glenelg-Hopkins Catchment Management Authority exercising its powers and directing the refusal of the application. Mr. Guest however pointed to the possible implication of the Ground of Refusal on other properties along this part of Griffith Street and claimed it would be a change of status in Griffith Street and may lead to a further requirements to raise the level of Griffith Street. He also claimed it may have further impact on any other subdivision of land in residential zones using Griffith Street.

17. Mr. Guest advised the crux of this issue is whether safe and proper access to a residential block can be obtained from Griffith Street. He claimed there was local policy which supported residential development along the Moyne River in Port Fairy. However he claimed the refusal of a subdivision in which the building envelope is outside the above critical height on the basis of the access is below that height seems to be an excess of zeal, given that same access has been perfectly adequate for many years. He also referred to further development proposed at the Port of Port Fairy which is also under the specified flood level determined by the CMA.

18. Mr. Guest referred to the reference point for determining flood levels and claimed the CMA relied on the 1946 Port Fairy flood documentation to determine flood levels. He claimed this flood had not been repeated and that previous responsible authorities have been perfectly happy with development continuing to occur in the area. He referred to a VCAT decision 1998/13949 where Mr. Barr allowed a dwelling at 24 Griffith Street with a condition requiring sealed access to Griffith Street and during which no mention of flooding was made is an example of the relevant Tribunal hearing in which Griffith Street itself was not an issue in terms of access.

19. Mr. Guest also referred to whether the flooding of Griffith Street, given the lack of any direct impact on dwellings and the safety of residents is not considered to be a significant risk factor, as there are dunes on these properties which extend well above the flood level. He indicated if there was a flood people could quite easily ascend to higher ground on adjoining blocks.

20. Mr. Guest advised that Council had held discussions with the Glenelg-Hopkins CMA on this issue and there is a Flood Study of the Moyne River to commence shortly. He advised the purpose of the study is to prepare a comprehensive set of flood planning maps for the Port Fairy urban area that can be used readily by Moyne Shire, Glenelg-Hopkins CMA, the Victoria State Emergency Service and the community to facilitate land use planning and emergency response to flood situations. He claimed the Flood Planning Maps would be a key component for strengthening statutory land use planning controls in the Moyne Planning Scheme.

21. Mr. Guest advised that flood planning for Port Fairy is currently based on records and information principally derived from the 1946 flood event. The magnitude of this flood event has never been determined, and as a result flood risk to public and freehold assets and the community is poorly defined. He claimed similarly the statutory planning approach is dictated by available information with perceived restrictions on development opportunities, particularly along the eastern side of Griffith Street between Gipps Street bridge and Martin Point. He claimed that as flood levels during the 1946 flood event were influenced by blockage of the Gipps Street bridge the study also includes provision for identification and analysis of the risk posed by various flood events in order to determine appropriate land use and building control mechanisms.

22. Mr. Guest argued that Council's view was that Griffith Street constitutes safe and proper access, unless demonstrated otherwise. If so demonstrated Council would be obliged to take measures to remedy that situation.

23. Ms. Lowe for the Glenelg-Hopkins CMA reiterated the authority's concerns about the inadequacy of access to the subject lot because that access would be more than 0.5m below the flood level and this would impede vehicular access to the subject site in cases of flood. Ms. Lowe also advised that part of the Moyne River, particularly that downstream of the Gipps Street bridge would have a much higher velocity than the floodway upstream of the Gipps Street bridge.

24. Ms. Lowe conceded that the Glenelg-Hopkins CMA records and determination of floodway and inundation levels was based principally on the 1946 flood event. She tabled photographs of the 1946 flood which showed substantial flooding throughout the Port Fairy township including the cricket ground, various streets and the Moyne River itself. She also tabled a photograph demonstrating damage caused to the old Port area including substantial damage to railway tracks. There was also a photograph of the old pedestrian bridge which had collapsed due to the flood.

25. Ms. Lowe acknowledged that the CMA were due to undertake a new study to determine to model flooding and levels of inundation, and advise this would not be ready until June 2002. She conceded that this further information would assist to properly identify flood levels in the future and that it would be a more far superior and sophisticated model than reliance on anecdotal information about the 1946 flood.

26. Mr. Liversidge for the applicant, reiterated much of Mr. Guest's criticisms of the Glenelg-Hopkins CMA and claimed the objection by the CMA was unreasonable. He claimed a building envelope suitable and safe for the construction of the dwelling has been identified on the land and that safe and appropriate access is available from the land in the event of flooding. He claimed the application satisfied the decision guidelines contained in the relevant Overlay. In summary he claimed the CMA's objection was unfair, unreasonable and inequitable precedent for landholders in this area.

27. Mr. Liversidge called evidence from Mr. John Bock, Civil Engineer, whose summary of opinion was:

"1. There is sufficient land within the proposed Lot 1 for a budding envelope above the urban floodway level set by the CMA of 1.85m AHD for a building to be contained within.

2. The denial of approval for the development by the CMA is totally inconsistent with the Referral Authorities previous advice for the development of adjoining allotments and other similar developments within the Port Fairy area.

3. Given my extensive knowledge of the area and the flood plain characteristics I am of the opinion that safe access to and from the subject land would in all circumstances be possible and that it is appropriate for the subdivision to proceed.

28. During his evidence Mr. Bock explained that he had previously been a Shire Engineer and Shire Planner at the Borough of Port Fairy and explained his experience in flood management and engineering issues particularly in and around the Moyne River between 1987 and 1994. Mr. Bock tabled various sewerage plans and construction detail to illustrate that various features of the Moyne River had changed substantially since the 1946 flood and that there had been new levels of sophistication in dealing with floods since that event over 50 years ago. Mr. Bock advised that there was now a weather station at Port Fairy to assist in determining rainfall and weather patterns, and there had been substantial improvement in mechanisation whereby remedial measures (eg. used backhoe to remove debris near an impediment in the river) can be implemented in the case of flood at an early stage to avoid a repeat of the damage caused in the 1946 flood. He advised the pedestrian bridge across the Moyne River was now designed better to accommodate flood flows in the event of a flood. He also advised that it was not possible to determine whether the 1946 flood was in fact a "1 in 100 year" occurrence as identified in the purposes of the LSIO.

29. Mr. Bock was also able to refer to reasons for various damage during the 1946 flood which he claimed were capable of being remedied by authorities such as the Moyne Shire or the State Emergency Services. He was also able to explain the reasons for various development patterns along the eastern side of the Moyne River including the reliance on Griffith Street as the main vehicular path.

30. Mr. Liversidge also referred to AAT Decision E.N. Ritchie (1990/28919 and 1990/28927) wherein he stated in paragraph 6 and 7, Mr. Buckley's statement:

"6. The Tribunal gives considerable weight to the fact that the appeal sites are located in the main Residential Zone in the planning scheme, apart from the Rural Residential Zone and the Historic Residential Zone. All services are provided at public expense. It seems logical to the Tribunal that the first step of subdivision should be permitted which would enable these expensive services to be fully utilised in an appropriate manner having regard to the usual amenity considerations and/or historical, landscape and environmental factors, if applicable.

7. One of the argument put to the Tribunal was that allowing these subdivisions would set a precedent for further similar development along this part of Griffith Street. The Tribunal rejects this argument as all subdivision is subject to the grant of a permit and they must be assessed on their individual merits. That has occurred in these appeals and while a decision in favour of these subdivisions may be seen to be favourable to further similar subdivisions, that is by no means the case. Any future subdivision must be examined on its own merits and these decisions are no guarantee of success."

31. Mr. Bock also referred to newspaper articles from the Port Fairy Gazette of 18 March 1946 and 21 March 1946 which described the events of flood and its aftermath and whilst guarded about some of the sensational reporting, he claimed some of the information derived was undisputed such as the amount of rainfall and the duration of the flood. He advised that the duration of the flood was of a short nature owing to the proximity of the town to the sea. He claimed the flood lasted less than 48 hours duration and compared this with other inland settlements in Victoria which had records of floods lasting a much longer duration.

32. The Tribunal is satisfied that access to the new lot via Griffith Street is a suitable and relatively safe access point for the subject site. It agrees with Mr. Bock and Mr. Guest's suggestion that if a house and land was to be flooded there was ample opportunity for residents for such lot to traverse the adjoining higher land to the east of the subject site in any case of emergency. It is noted that if this was to be the case, many other properties fronting Griffith Street would be in similar circumstances.

33. The Tribunal notes that it will be possible to accommodate any part of a dwelling above the established flood level. The Tribunal considers it wise to place a notation on permit requiring that all habitable rooms to a dwelling be above the 2.45 level established by the CMA. Whist this level has been based on anecdotal evidence, ie the 1946 flood, such documentation could be amended by consent if further information is revealed by way of the forthcoming Flood Management Study. The Tribunal has chosen this early warning method as a note because a separate permit will be required for development of a dwelling under the provisions of the Design and Development Overlay.

34. The Tribunal also notes that this section of Griffith Street is directly opposite the Moyne River and in case of a flood, there is a likelihood boats being in a position to provide access in the event that Griffith Street does flood. Whilst this may seem to be a bemusing concept, one of the very appealing aspects of this subdivision is the outlook of the boating/mooring facilities opposite the site in the Moyne River.

35. The Tribunal also notes and places great weight on both the written and oral evidence provided by Mr. Bock, a Civil Engineer, with first hand experience of flood mitigation requirements and civil engineering issues in the locality. The Tribunal tends to agree that emergency services are far more sophisticated and in a position to provide greater remedial action in the case of flooding than they would have in the 1946 flood.

36. The Tribunal considers it important that all parties could not identify the 1 in 100 year flood incidents, nor could any party confirm whether the 1946 flood was in fact a 1 in 100 year occurrence. All parties agreed there is a overwhelming need for a proper study to determine flood levels and accurately plot these levels. Whilst the 1946 flood and its damage are undisputable, there has been many changes in circumstances, including the construction of Griffith Street itself, a new pedestrian bridge, new subdivisions and filling of land, which need to be assessed, quantified and determined.

37. The Tribunal is satisfied that the proposed access to this subdivision will not in itself necessarily contribute to the blockage or retarding of flood water and it is satisfied that in a case of emergency future residents of this lot would have reasonable alternative access to and from the site.