Use of the land for a school, waiver of bicycle parking, removal of vegetation and works generally in accordance with the endorsed plans.

(c) The conditions of the permit are amended to read as set out in Appendix A to this order.

(d) Plans endorsed under the permit are amended and the Responsible Authority is directed to endorse amended plans as follows:

• (i) Amended plans in accordance with Condition 1.
• (ii) "Candlebark School Romsey Schedule of Works - Further fire protection for library" with amendments required under Condition 11 of this permit.
• (iii) "Candlebark School: Bushfire Emergency Management Procedures" in accordance with Condition 12 of this permit.
• (iv) "Emergency Management Plan For Candlebark School" in accordance with Condition 33.

Mr Matthew Townsend of Counsel by direct brief. Mr Townsend called lay evidence from Mr Marsden and also the following expert evidence:

• Bushfire safety evidence from Mr John Nicholson.
• Traffic engineering evidence from Mr Henry Turnbull.

By agreement of all parties, the Tribunal "took as read" the expert arborist report prepared by Mr Tim Cameron.

Dr Thorne appeared in person on all hearing days. Mr Robert Shaw and Ms Hazel Shaw appeared in person at different points in the overall hearing process.

As lodged with the Tribunal on 11 May 2011, permission is sought to amend the existing planning permit No. P205-0135 to:

• Provide for updated endorsed plans which are notated to allow for a higher maximum number of students at Candlebark School ie 196 students.
• Delete Condition 4(d).
• Amend Condition 4(e) so as to have less restriction on the ability of school buses to utilise that section of Kerrie Road north of the school.

The Applicant on 3 April 2012 lodged and circulated an updated version of the Application, in relation to which the Tribunal has made its decision.

Section 87A of the Planning and Environment Act 1987

Environmental Significance Overlay (Schedule 5) [ESO5], Significant Landscape Overlay (Schedule 1) [SLO1], Bushfire Management Overlay [BMO].

Planning permission is required to change a notation on the endorsed plans for the school.

"Buildings and works" permission is required under the RCZ1 and BMO for alterations to the school grounds, plant and equipment.

"Vegetation removal" permission is required pursuant to the ESO5.

SPPF - Clauses 11.05, 12.04, 13.05, 14.02 and 19.02.

LPPF - Clauses 21.7, 22.01, 22.02, 22.05, and 22.10.

The subject land (being the former Tye Estate) is located about 6 km south-west of Romsey, north of Melbourne. It is about 440 hectares in area, located in the foothills of the Mt Macedon region. It is very undulating and heavily treed. The Bolinda Creek crosses the southern corner of the property. The various buildings now used for the Candlebark School are located at the southern end of the site and accessed via Kerrie Road which is a dirt road.

On 28 March 2012, the Tribunal inspected the site and surrounds. This included driving the length of Kerrie Road, looking inside the school library and inspecting the school campus on foot.

1. The owner of the former Tye Estate John Marsden lawfully established the Candlebark School on the estate in 2006. The VCAT-directed planning permit allowing the school's establishment sets a cap on student numbers of 100 students. In 2011, Mr Marsden unsuccessfully sought VCAT approval to vary the existing planning permit to increase his cap to 196 students [the 2011 decision[2]].
2. In May 2011, Mr Marsden lodged a fresh Application under Section 87A of the Planning and Environment Act, with its key aspect again being a proposed increase in the student numbers cap from 100 to 196. This Application was considered over six hearing days during March and May 2012 including an inspection of the site and locality.
3. The initial section of our reasons sets out background information regarding the planning history of the review site. We then discuss the key aspects of this fresh proposal and the hearing process over March and May 2012. We clarify how we have approached the scope our discretion, where there is a "repeat appeal" aspect to this proceeding. We then provide reasons why it is the Bushfire Management Overlay [BMO] rather than the previous Wildfire Management Overlay [WMO] that applies in considering the relevant bushfire management issues.
4. The final section of our reasons addresses the two key issues which (following "repeat appeal" principles) we must resolve, being whether this fresh Application (as updated on 3 April 2012) deals with the "bus movement" and "bushfire safely" issues in an acceptable manner. Our overall decision is that this fresh Application is acceptable when assessed against these two key benchmarks; hence we have made orders that the Application is approved.

Nature of site/school and summary of previous Tribunal proceedings

1. The Tribunal's 2011 decision dated 4 March 2011 provides some useful background information about the context and history of the review site as follows.
   1. The former Tye Estate land is located about 6 km south-west of Romsey. This is a very large combined parcel of land at 440 hectares, and also unusual in being heavily treed. It was originally owned by the Tye brothers but then purchased by the Blind and Deaf Institute in 1948. This Institute then over time upgraded the facilities at the southern end of the site as part of offering accommodation and tuition services. Getting to these facilities/buildings involves traversing a relatively narrow private driveway that is about 400-500 metres long. Vehicle access to the site is via Kerrie Road, which is a dirt road extending roughly north and south of the driveway entrance area. The site inspection by the Tribunal confirms that the Estate has outstanding landscape values and is very picturesque.
   2. The surrounding land is mostly cleared and typically features relatively small rural holdings. Several nearby properties feature dwellings but Council has advised (and no other party to this proceeding has contested) that the nearest dwelling to the subject land is 600 metres away and largely screened off. One nearby property features some degree of storage of heavy machinery associated with the owner's earthmoving business. It is common ground that a large school bus associated with the local high school runs daily along that part of Kerrie Road north of the subject land and has done so for the last 20-30 years or so.
   3. In 1998 the appeal site was purchased by the Applicant Mr John Marsden. In turn, a permit application was lodged in 2005 to use the land for the purposes of a school. Council issued a Notice of Decision to Grant a Permit which included a cap of 60 students, but a merits review at the Tribunal was initiated by certain neighbours. Mr Marsden concurrently lodged a conditions appeal. On 19 December 2005 both applications were dealt with by Member Terrill - see Campbell v Shire of Macedon [2005] VCAT 2826. Member Terrill's subsequent orders rejected the merits challenge by the neighbours and allowed certain modifications to the proposed permit conditions. In particular, the allowable number of students was increased to 100. Council in turn issued planning permit No. P205-0135 as per the Tribunal orders.
   4. Mr Marsden (as the Principal) then established the Candlebark School using the facilities at the southern end of the property, which commenced operating in 2006, and which I understand now has 15-16 full time staff[3]. This is a co-educational school offering Prep - Year 9 classes. Mr Marsden in giving his evidence at the hearing outlined the particular philosophy of the school, which includes taking good advantage of the outdoor opportunities offered by the scrubby balance of the large Tye Estate. He also emphasised the priority he has given to de-weeding the Estate and generally improving its environmental condition (which is commendable)
2. Pursuant to the planning permit No. P205-0135 issued at the direction of VCAT on 23 December 2005 ("Permit"), Candlebark School was established to operate over Prep-Year 9 grades including a cap of 100 students at the school. The original version of the Permit conditions included a restriction (in summary) that only that section of Kerrie Road south of the school could be used by school-operated "multi passenger transfer vehicles".
3. By way of an application direct to the Tribunal pursuant to Section 87A of the Planning and Environment Act 1987, Mr Marsden then sought planning approval to vary the Permit:
   • to increase the cap on school students from 100 to 196 to enable the school offer classes from Prep through to Year 12;
   • to make a simple correction to the description of the school address in the Permit; and
   • to vary the Permit conditions to allow school buses to utilise that part of Kerrie Road extending north from the school up to once a week.
4. There were no bushfire planning controls affecting the review site at the time Member Terrill approved the establishment of the school in 2005. However, by 2011, the school site was affected by a WMO.
5. Objections were received from certain neighbours and Council did not support the proposal. The CFA initially indicated that it supported the proposal, but then took a much more qualified position at the Tribunal hearing. The hearing of this proceeding was heard by the Tribunal over 20 & 21 January 2011, with the presiding member in this case, Member Martin, sitting alone. The Tribunal received expert traffic engineering evidence during the hearing, but bushfire safety evidence was not presented. The Tribunal also visited the school as part of the hearing process.
6. The Tribunal's 2011 decision includes extensive reasons, discussing the various issues arising. Excluding the two key issues of "bushfire safety" and "bus movements into the school driveway entrance", pages 9-11 of the decision discuss what the Tribunal regarded as the more straight forward planning issues arising from the application. At paragraph 36 of the decision the Tribunal concluded that apart from the two key issues, all other relevant aspects of the proposal were acceptable.
7. The balance of the 2011 decision discusses the "bushfire safety" and "bus movement" issues, with the Tribunal finding that there were major unresolved issues with both aspects. In relation to "bus movement", the Tribunal expressed concern with respect to the need for larger buses approaching the school from the south to cross right over to the wrong side of the road, so as to be able to swing wide enough to enter the school driveway entrance.
8. With respect to "bushfire safety" issues, the Tribunal found that this was the key single issue arising from the proposal and that the:
   • more isolated location of the review site (accessed off an unsealed road);
   • very large area of native trees to the north of the area of the school buildings; and
   • 400-500 metre long largely unsealed single lane driveway leading from Kerrie Road up to the area of the school buildings, with large native trees either side of this driveway

together meant that "...the school's basic features give it an inherently high bushfire risk"[4].

1. The Tribunal discussed the position taken by the Country Fire Authority ("CFA"), being a referral authority as the review site was affected by the WMO. By the time of the hearing, the CFA (whilst not formally opposing the proposal) was offering qualified support for the proposal subject to the inclusion of permit conditions on an amended permit. The conditions proposed by CFA required (amongst other things) that follow up information be provided in the form of a "Water Supply Plan" and a report dealing with the "...suitability and tenability of the library for use as a fire refuge...".
2. In summary, the Tribunal found there to be unacceptable unresolved bushfire safety risks arising from the proposed almost doubling of student numbers at the school. The Tribunal noted the emphasis on "the avoidance of loss of human life" in the Black Saturday Bushfire Royal Commission Report and the fact that no "bushfire safety" expert evidence was presented to it. With respect to the CFA proposed conditions, the Tribunal did not regard the use of such broad-ranging conditions as viable and expressed concern that the much more qualified position taken at the hearing by the CFA was "too little, too late"[5]. A particular issue for the Tribunal was the lack of convincing evidence that the school library (which was still being completed at the time the decision was made) could adequately serve as a fire shelter for up to 196 students and associated staff in a major bushfire event in circumstances it is unsafe to evacuate the school[6].
3. Although the application was refused, at paragraph 22 of its decision the Tribunal stated:

Based on the information currently before me, I can indicate in principle that if the bushfire risk and school bus issues are reviewed and resolved at a future stage so as to reach an acceptable planning outcome, then the Tribunal does not see any other planning obstacle to allowing the proposed new "196 student" cap.

Revised Section 87A Application lodged in May 2011 and hearing process in 2012

1. Mr Marsden then lodged a revised Section 87A Application on 11 May 2011. The key features of the Application documentation were:
   • To provide for updated endorsed plans which are notated to allow for a higher maximum number of students at Candlebark School i.e. 196 students.
   • The deletion of Condition 4(d).
   • Amendment of Condition 4(e) so as to have less restriction on the ability of school buses to utilise that section of Kerrie Road north of the school.
2. Again objections were received, essentially from the same neighbours as were involved in the previous Tribunal proceeding. However, the May 2011 Application was supported by both the CFA and Council.
3. The hearing of the fresh Application involved several "case management" type Directions hearings before the Tribunal over the second half of 2011. The 18 October 2011 Directions by Senior Member Rickards set the proceeding down for a four day hearing commencing 26 March 2012 and required Mr Marsden to lodge and circulate the expert evidence he wished to rely upon by no later than 2 December 2012. There were delays in Mr Marsden complying with this "circulation of expert evidence" requirement, notably in relation to the bushfire safety expert report prepared by Mr John Nicholson dated 20 December 2012.
4. As the two allocated Members for the March 2012 hearing, we heard submissions from the advocates listed above. Although not a party, we agreed to hear from Mr Campbell as an "interested person" in relation to "vegetation removal" issues. Over these four hearing days we completed receiving the expert traffic engineering evidence of Mr Turnbull and got part way through receiving the expert fire safety evidence of Mr Nicholson. In addition, Mr Townsend called Mr Marsden briefly as a lay witness and tabled several Statements from parents of existing Candlebark School students, in relation to their support for the proposal and the benefit of the school experience on their child.
5. We also used one of these four allocated days to carry out an inspection of the site and surrounds. This included walking around the school grounds, inspecting the inside of the library and driving the length of Kerrie Road.
6. One of the points debated during the hearing was whether the new BMO gazetted on 18 November 2011 should be applied, or alternatively, whether the WMO provisions are still the applicable control pursuant to the "transitional provisions" in the BMO.
7. By the fourth hearing day on 29 March 2012, it had become obvious to us that:
   • we had received comprehensive further expert traffic evidence from Mr Turnbull regarding the "bus movement" issue, and did not require any further information to make a decision on same; but
   • there were supplementary "bushfire safety" issues which had arisen beyond the scope of Mr Nicholson's 20 December 2011 written report.
8. It was also obvious that in response to various issues arising during these four hearing days, Mr Townsend was requesting that we consider a significantly wider range of potential changes to the Permit compared to the relatively narrow set of changes proposed in the Section 87A Application documentation lodged in May 2011.
9. As a matter of procedural fairness, and bearing in mind the stated preference of all parties including the neighbours to reach a resolution of what has become a very long running overall planning process, we then gave directions (formalised in our written orders of 4 April 2012) that:
   • The hearing be adjourned until a further two hearing days on 14 & 15 May 2012.
   • The Applicant must by 5 April 2012 lodge with the Tribunal and circulate to all parties an updated version of its Application, including all associated documentation and plans (which duly occurred), with the other parties then being required to provide a written summary of their response to same by 19 April 2012.
   • Mr Nicholson was given leave to lodge and circulate any supplementary expert evidence by 30 April 2012.
10. In addition, at the request of the Applicant, the Tribunal made provision for a VCAT mediation to occur on 18 April 2012. Whilst the Council and CFA were required to attend this mediation, the neighbours were given a discretion whether to attend. In the final result, we understand that this mediation went ahead but neighbours chose not to attend.
11. On 30 April 2012 Mr Marsden lodged and circulated updated versions of the Appendix B Bushfire Protection Conditions" and the "School Emergency Plan".
12. When the hearing resumed on 14 May 2012, we were advised that with the 18 April 2012 mediation having been very productive, the Applicant and the CFA had essentially resolved the majority of their differences, such that the CFA now supported the most recent version of the proposal in an essentially unqualified manner given the detailed conditions to which the Applicant is prepared to commit to. The one remaining bushfire management point where the CFA and the Applicant still differed and sought the Tribunal's decision was whether or not existing trees within the nominated "defensive space" area should have their limbs lopped below two metres in height (as was advocated by the CFA but resisted by Mr Marsden). The Applicant instead advocated that it should merely be required to remove any dead tree limbs below two metres.
13. Council (as it had throughout the hearing) remained supportive of the proposal.
14. Over the remainder of the hearing time, we heard the rest of the bushfire safety evidence of Mr Nicholson and all parties had the opportunity to make further submissions on the more recently provided information.

1. For the avoidance of any doubt, in relation to the updated Section 87A Application documentation lodged with the Tribunal on 3 April 2012, the components of the updated Application are:
   • The requisite VCAT form.
   • The marked up draft permit conditions, track-changed to show the proposed new conditions/text.
   • Appendix B - "Bushfire Protection Conditions", being a five page document marked up to show the changes arising from the first four hearing days, which was updated on 30 April 2012.
   • Appendix C - Plan showing "Candlebark School Site Plan".
   • Appendix D - Plan showing "Candlebark School Access Driveway".
   • Appendix G - "Bushfire Emergency Management Procedures", being a six page document track-changed to show the proposed amendments.
   • Proposed updated "Emergency Management Plan for Candlebark School". This is a 44 page document which was updated on 30 April 2012.

SCOPE OF TRIBUNAL'S DISCRETION WITH FRESH PROCEEDING

1. Before we embark on a detailed discussion of our findings with this fresh proceeding, it is important to understand the scope of our discretion.
2. On the one hand, the Tribunal is not bound by the decision of another Tribunal, although the Tribunal is bound to follow the decisions of higher courts.
3. On the other hand, there is a consistent line of caselaw dealing with how the Tribunal should approach what is known as "repeat appeals". Following in particular the leading decision of Amoco (Australia) Pty Ltd v Berwick City Council (1983)1 PABR 166, this line of decisions is telling us that where a previous decision has dealt with the same site and an overlapping proposal, the previous decision should be given a high level of weight and (rather then re-inventing the wheel) the key focus of the fresh hearing becomes assessing "what has changed" since the previous decision. A helpful quote comes from Spencer v Moorabool SC [2006] VCAT 1595, where Member Rickards (as she then was) stated that:

An earlier decision should be taken into account and given great weight. It could be said that the earlier decision should not be changed unless the applicant can show a change in circumstances which warrant a different view.

1. Further, we note and support the views of expressed below by the former Planning Appeals Board in Benc v Doncaster and Templestowe [P86/2205] as quoted in NC Lynn v City of Prahran & ors [3 AATR 18] when it said:

In the case of a different but similar application which has been prepared in accordance with the advice of the Board, equity or fairness demands that considerable weight be given to the fact that the applicant has endeavoured to accommodate suggestions as to what would be appropriate.

1. In addition we are conscious (as indicated above) that the Tribunal at paragraph 22 of its 4 March 2011 decision stated at paragraph 22 that:

Based on the information currently before me, I can indicate in principle that if the bushfire risk and school bus issues are reviewed and resolved at a future stage so as to reach an acceptable planning outcome, then the Tribunal does not see any other planning obstacle to allowing the proposed new "196 student" cap.[7]

1. In summary, for the reasons set out above, it is very clear to us that the core aspects of the proposal to increase the cap on school students from 100 to 196 students relate to "bushfire safety", particularly the role of the school library as a fire refuge, and "bus movements" issues. We have not been persuaded that there is a need for us to revisit the other planning matters which the previous Tribunal found acceptable in the 2011 decision.
2. On this basis, the balance of these reasons is focused on these two issues of "bushfire safety" and "bus movements".

SHOULD THE TRIBUNAL BE APPLYING THE BMO OR THE WMO?

1. At the time of the hearing of the 2011 proceeding, the review site was affected by the WMO.
2. On 18 November 2011 (pursuant to Amendment VC83) the WMO was replaced by the BMO. The more relevant purposes of the BMO for this proceeding are as follows:

To assist to strengthen community resilience to bushfire.

To identify areas where the bushfire hazard requires specified bushfire protection measures for subdivision and buildings and works to be implemented.

To ensure that the location, design and construction of development considers the need to implement bushfire protection measures.

To ensure development does not proceed unless the risk to life and property from bushfire can be reduced to an acceptable level.

1. Pursuant to Clause 44.06-1 of the BMO, a planning permit is required for buildings and works associated with an "Education Centre".
2. Clause 44.06-8 sets out certain transitional provisions, which read as follows.

The requirements of the Wildfire Management Overlay in Clause 44.06 of this scheme in force immediately before 18 November 2011 continue to apply to any planning permit application lodged before this date.

The requirements of Clause 44.06 Bushfire Management Overlay of this scheme do not apply to:

* Any development of land for which a permit under the Building Act 1993 was issued before the date specified in the schedule to this overlay.

* Any development of land for which a planning permit was issued under the requirements of Clause 44.06 Wildfire Management Overlay in force immediately before 18 November 2011.

1. There was some discussion at different times during the hearing whether the WMO or the BMO applies here, given these transitional provisions. However, by the end of the hearing:
   • Both Council and the CFA were of the firm view that this Section 87A Application falls outside of the transitional provision and hence it is the BMO that needs to be applied to this proposal.
   • Mr Townsend's resistance to the Tribunal applying the BMO was very muted.
2. To the extent this is a legal issue, the following finding is made by Member Martin alone as a Legal Member.
3. In summary, the Tribunal is satisfied that it is appropriate and correct that the Clause 44.06-8 not apply to a Section 87A Application which is seeking to vary a pre-existing planning permit.
4. In a situation where the default position after 18 November 2011 becomes the application of the new BMO provisions rather than the WMO, a careful review of the words of the opening paragraph of Clause 44.06-8 indicates that the scope of the transitional provisions is intended to be confined and simply apply to any new (ie brand-new) planning permit applications lodged before 18 November 2011 which are still on foot.
5. Following this approach, the critical aspect of the permit history in this matter is that the planning permit P205-0135 which is proposed to be varied was issued on 23 December 2005; i.e. over six years ago. The Tribunal is satisfied that it was not the intention of the draftspersons of the transitional provisions that the WMO still be applied when variations are proposed to an existing permit granted before 11 November 2011. Rather, the correct interpretation in the Tribunal's view is that the scope of this transitional provision is simply limited to brand new planning permit applications lodged before 18 November 2011 which are still on foot as at that date ie where no permit has yet issued.
6. For equivalent reasons, the Tribunal does not see the two bullet points in Clause 44.06-8 as applying to this type of situation where a Section 87A Application has been made to vary an existing planning permit. That is, the proposal is going beyond the scope of these two bullet points because the proposal seeks to vary an existing permit issued prior to 18 November 2011. Accordingly, the current proposal is to be assessed under the BMO.

1. In the 2011 decision, the Tribunal found that there were excessive road safety risks associated with larger school buses needing to swing right across on the wrong side of Kerrie Road to enter the school driveway from the south. To the extent that the expert traffic evidence presented sought to defend this situation, the evidence was seen as unconvincing.
2. Following the abovementioned approach with repeat appeals of focusing on "what has changed", this fresh proceeding involved Mr Marsden calling new expert traffic engineering evidence from of Mr Turnbull.
3. Mr Turnbull took a quite different approach to the previous traffic witness. Rather than seeking to justify large buses swinging out on the wrong side of Kerrie Road, Mr Turnbull recommended that certain works be done to enable larger buses to carry out this turning manoeuvre whilst still staying on the correct side of the road. These works are set out in a plan attached to Mr Turnbull's report. The plan shows:
   • the widening of Kerrie Road opposite the driveway entrance to the school; and
   • the entrance wall on the northern side of the driveway entrance (on the school land) shortened, to free up extra space for a larger bus when turning into the driveway. Mr Turnbull indicated that this might also involve a modest level of buttressing on the soil bank immediately alongside the extra flat area made available for bus movement, together with one or two trees possibly requiring removal.
4. In relation to the proposed widening of the section of Kerrie Road opposite the driveway, the basic intent here is that the notional dividing point for "north" versus "south" moving traffic is moved further across to the east, away from the driveway entrance. This in turn will create a wider area for buses approaching from the south to swing out toward the middle of the road (but not beyond the centreline) and then have adequate room to turn left into the driveway entrance.
5. In relation to some related matters, Mr Turnbull:
   • advised that he regarded the potential sealing of the section of Kerrie Road outside of the driveway entrance as counter-productive (in indirectly encouraging greater speeds) and an overkill in terms of the likely cost to the school;
   • gave evidence that he did not see any particular value in line-marking the centre of that section to Kerrie Road alongside the driveway entrance. Rather, he saw the more practical way of encouraging responsible driving along this Section of Kerrie Road as being the installation by Council of "Stay left" or "Caution: School Ahead" type road signs;
   • regarded it as reasonable that a medium sized bus could use the northern section of Kerrie Road daily for school students to get to and from school.
6. Turning now to the findings of the Tribunal, we remain of the view that (given the hazards involved with respect to conflicts with on-coming traffic) it is essential that larger buses be able to stay on the correct side of Kerrie Road, when doing their turning manoeuvre into the school driveway from the south.
7. However, we accept the evidence of Mr Turnbull that the Kerrie Road and driveway entrance modifications he has proposed will enable such a "safe turning movement" situation to occur. To the extent that modifications to the driveway entrance area (on school land) might involve some modest battering of soil and/or one or two trees being removed, we see this as reasonable in all the circumstances, noting the heavily treed nature of most of the very large estate of which the school building and driveway areas form only a small part.
8. In relation to the other outstanding points:
   • We find persuasive Mr Turnbull's that it is unnecessary for the school to seal the section of Kerrie Road outside of the driveway entrance. We accept Mr Turnbull's evidence that the road seal at the intersection is satisfactory for the type and number of movements into and out of the school. While we do not require the intersection to have a hard seal, this is not to say that it would be inappropriate for it to be provided if the Council considers it appropriate at some stage in the future.
   • We also accept Mr Turnbull's position that the better approach to encourage "safe driving" by both bus drivers and drivers generally on Kerrie Road is for appropriate road signage installed by Council which forewarns and alerts drivers of the nature of the approaching intersection, rather than seeking to put a "dividing line" down the middle of this section of Kerrie Road at the intersection itself.
   • We agree with Mr Turnbull that it is fair and reasonable for the school to be able to use a small or medium sized bus once a day for students to travel to and from towns further to the north. Having driven this north section of Kerrie Road as part of our site inspection, we are struggling to see how the use of a small or medium sized bus on a daily basis will cause any undue road risks/damage the road surface or any material amenity impacts on the owners whose properties front on to this section of Kerrie Road. We are also satisfied that this northern section of Kerrie Road is wide enough that such small or medium sized bus should be able to readily pass a vehicle coming the other way. Our conclusion on this issue are reinforced by the fact that a local high school bus with over 40 seats has apparently traversed this northern section of Kerrie Road for over 20 years without incident, and one neighbour seems to readily find a way to move heavy earthmoving equipment in and out of his property located on this northern section of Kerrie Road.

1. Several factors are pointing to the need to take a cautious and careful approach to assessing a proposal that the maximum number of students at Candlebark School be increased from 100 to 196. These factors include:
   • the strong emphasis in the Black Saturday Bushfire Royal Commission Report on the need for greater emphasis on avoiding the potential loss of human life in major bushfire events;
   • the concerns raised by the Tribunal in its 2011 decision;
   • the more rigorous approach to bushfire management under the BMO purposes and provisions compared to the WMO;
   • the fact that this would constitute almost a doubling of the cap on students at the school;
   • the bushfire concerns raised by the objectors in this proceeding;
   • the isolated location of the school, its long single lane driveway and the extensive native scrub to the north of the school which presents an inherent level of bushfire risk.
2. On the other side of the ledger, it is fair and reasonable that we take a balanced approach also takes into account the following factors.
3. First, the Victorian Supreme Court decision to Knox City Council v Tulcany Pty Ltd (No 9067 of 2003) is authority that the ultimate benchmark in assessing a planning proposal is whether or not it would be an acceptable planning outcome. A part of this approach, planning permit applicants are not expected to demonstrate perfect applications or ideal outcomes - setting the bar this high would make the planning system unworkable.
4. Hence, we accept that the Applicant here does not need to demonstrate that increasing the cap on students at the school to "196 students" will be completely free of any bushfire risks. Rather, the appropriate test is whether Mr Marsden has demonstrated that the bushfire risks have been contained or managed to an acceptable level. However, we make clear that in demonstrating what is an acceptable outcome, the 'bar' should be set at a very high level. We consider that this approach is consistent with the direction given by state policy at Clause 13.05-1 which calls for the protection of human life to be a priority.
5. Second, an important factor is whether the planning decision maker is considering an "existing" compared to a "proposed new" use or development. The situation may be approached somewhat differently if the proposal before us had been for a new school. By contrast, the reality here is that Candlebark School has already been lawfully operating since 2006, and is apparently over-subsidised for student places. Indeed, whilst the neighbours in the hearing raised other objections, none query that the Candlebark School is providing a valuable educational experience for its students in a unique physical setting.
6. In a situation where a school is established and then reaches its cap on students, and there is then an enrolment demand beyond that cap, in our experience it is not that unusual for a school in this situation to seek an expansion of its cap on student numbers. However, in doing so, it must demonstrate that the increase in numbers is acceptable having regard to all the relevant circumstances.
7. In summary, we accept that some weight needs to be given to the community benefit that will arise if there is currently unmet demand for additional student places at this already-established school and this addition demand can be catered for if the existing cap is increased. We similarly acknowledge that Mr Marsden seeks the new cap so as to enable the school to over time expand to providing education over years 10-12, and that there are educational advantages for students being able to complete all of their secondary studies at the one school.
8. Thirdly, we see the role of the CFA in this proceeding as important. The CFA are the specialist Victorian authority in the area of bushfire safety and able to offer unique expertise in assessing this type of more complicated planning proposal on land affected by a BMO.
9. This is not to say that the position of the CFA will be "taken as gospel" as being correct. For example, Masten Bennett & Associates v Nillumbik SC [2010] VCAT 900 the Tribunal rejected a proposed 16 lot subdivision in a more remote location due to (amongst other issues) excessive bushfire risks, despite the CFA's support for the proposal.
10. However, it seems fair to say that provided the Tribunal is satisfied that the CFA has properly assessed the "bushfire risk" aspects of a planning proposal, it should give significant weight to the views of the CFA.

1. Turning now more specifically to our assessment of the "bushfire safety" aspects of the proposal, we can indicate that:
   • The original Application lodged in May 2011 had major shortcomings. Clearly, the original form of the Application was overly simplistic and under-prepared in terms of addressing the bushfire risk issues.
   • In terms of the basic position which the CFA took into the first four hearing days over 26-29 March 2012, it was not obvious to us that the CFA had properly expressed its position with respect to the proposal. While the CFA expressed the view that it did not oppose the proposal subject to the inclusion of conditions on the amended permit, it became clear during the course of the hearing that there was still areas of significant disagreement regarding the proposal between the CFA and the Applicant, as evidenced by the CFA lawyer Ms Wong's lengthy cross-examination of the Applicant's fire safety expert Mr Nicholson for several hours. By the CFA's own admission, there were still substantial unresolved issues arising from the private discussions between the CFA and Mr Marsden's consultants over the weeks leading up to the hearing, which the CFA proposed be dealt with on a secondary consent basis via somewhat vague and generalised permit conditions.
2. Given the Tribunal's criticism in the 2011 decision of the over-reliance by the CFA with the proposed use of permit conditions to deal with major unresolved issues which go to the heart of whether the permit should be amended, we were surprised that the same problem arose again in the CFA's initial approach to this new proposal (which added another layer of complexity to this proceeding).
3. We also find it a peculiar situation where the CFA is telling the Tribunal that it is conditionally supporting this proposal, despite abundant evidence of substantial unresolved issues between the CFA and the Applicant in dealing with bushfire issues. Surely there comes a point where there are enough unresolved issues of gravity that the more sensible and transparent response by the CFA would be to refuse to support the proposal, but making it clear what its particular areas of concern are. These concerns should be reflected in the CFA's response to the decision maker, whether the Council or the Tribunal. The concerns should not be veiled behind a response which purports to express support for a proposal, when in reality, significant unresolved issues remain.
4. From our perspective, the significant unresolved "bushfire risk" issues arising from the proposal needed to be properly and rigorously discussed and assessed on an up-front basis at the Tribunal hearing, rather than put aside as a matter of convenience to be dealt with on a "secondary consent" basis. In this regard, we have real doubts whether the relevant "bushfire safety" issues arising from this fresh application would have been properly assessed at the March and May 2012 hearings, but for the Tribunal being very proactive in raising concerns with the Applicant and insisting that the CFA properly put its unresolved concerns to the Applicant's fire safety witness Mr Nicholson by way of cross-examination (as opposed to these concerns being dealt with later via permit conditions).
5. Having said that, with the lodgement of new material and encouragement on our part for the CFA and Applicant to resolve outstanding matters, we consider that by the final hearing day there had been a thorough and comprehensive assessment of the proposal. We refer here to:
   • The Applicant being required to re-lodge and re-circulate its updated Application, which it did on 3 April 2012. This gave the opportunity to properly capture and consider the much wider range of necessary changes to the existing planning permit, where it had become obvious that these changes needed to more formally become part of the proposal.
   • The Applicant's fire safety expert Mr Nicholson being able to during April 2012 consider further the "fire safety" issues raised by the CFA which had been fleshed out during the initial hearing days.
   • The CFA, Council and the Applicant having the opportunity to participate at a VCAT mediation on 18 April 2012 (the neighbours had the option to participate but did not take this up). We understand that this mediation was very productive and essentially dealt with the remaining areas of disagreement between the Applicant and the CFA.
   • There being two final hearing days over 14-15 May 2012 for Mr Nicholson to complete giving his expert "fire safety" evidence and for all parties to make any supplementary submissions. In particular, we were told by the CFA that it now essentially supports the proposal on an up-front basis, without reliance upon yet-to-be resolved permit conditions. Rather, the CFA supports the proposal on the basis of the updated Application materials, including the updated draft permit conditions which, unlike those put forward initially by the CFA, are very detailed and comprehensive as to the actions to be taken by the applicant.
6. On the basis of this much more up-front, comprehensive and rigorous assessment of the updated Application materials, we are satisfied that:
   • The Application has been suitably updated and broadened, so as to properly deal with the various different aspects of the existing planning permit which (on a holistic approach) needed to be addressed.
   • The Applicant has demonstrated that the updated Application deals with "bushfire safety" issues in an acceptable manner, consistent with the purposes and provisions of the Bushfire Management Overlay.
   • Accordingly that we approve the updated Application.
7. Some particular factors we have ruled upon in finding there to be an acceptable "bushfire risk" outcome are as follows.
8. By the end of the hearing process we were satisfied that the CFA has thoroughly assessed the updated proposal and supported it on an up-front basis with a clear understanding of its requirements.
9. We are also in a much better position to assess the bushfire risks for Candlebark School compared to the 2011 hearing, due to Mr Marsden engaging an experienced expert bushfire safety consultant in the form of Mr Nicholson. With the benefit of his further consideration of the issues during April 2012 and his supplementary evidence over 14-15 May 2012, we are satisfied that Mr Nicholson provided credible evidence that the updated Application (incorporating any further modifications coming out of the 14-15 May 2012 hearing) deals with the bushfire safety issues in an acceptable manner.
10. We also see it as an important benefit of the proposal that some existing less-than-ideal aspects of the school's current treatment of "bushfire risk" issues will be addressed. For example, in the course of his evidence, Mr Nicholson conceded that the condition of the current school classrooms are in his view sub-standard, in terms of their ability to resist bushfire attack. As part of the updated Application, the "Bushfire Protection Conditions" require at Clause 1.1.2 that all school buildings (apart from the library) be upgraded to a Bushfire Attach Level 12.5 - this is a good result.
11. In relation to the "bushfire risk" characteristics of the native scrub/trees around the school buildings, Mr Nicholson's evidence was the predominant native tree type in the Tye Estate typically have a relatively high level of fire-resistance. Taking this into account as well as the requirement for the school to maintain a "defensive space" area, Mr Nicholson's evidence was that he:
    • was satisfied that there was a relatively low "tonnes per hectare" fuel load in this location;
    • saw the school grounds area as quite sheltered from prevailing winds, given the school buildings are located in a natural "bowl" location;
    • did not see any material risk of a crown fire affecting the school grounds;
    • saw no need for any lopping program for the existing trees in or near this defensive space area;
    • did not see any material risk of "flame contact" with the school buildings; and
    • (even in a major bushfire event) expected any fire to pass over the school grounds quite quickly.
12. We also accept Mt Nicholson's evidence that it is unnecessary to remove all live branches, below 2 metres above ground level in the defendable space given the species of trees, the propensity for live branches to burn and their location on the land which is generally away from school buildings. We agree that dead branches below 2 meters should be removed given that dead wood has a greater propensity to burn.
13. We are also conscious that a key issue before the Tribunal in the 2011 hearing was the adequacy of the new school library as a fire shelter. During the 2011 hearing, there was very little expert evidence regarding the bushfire safety credentials of the new library.
14. By contrast, this fresh hearing has involved extensive review of the role of the library as a fire shelter for up to 196 students and associated staff, in a major bushfire event where evacuation is not appropriate. This review process has involved:
    • the project architect verifying that the library has been built to a BAL-29 level;
    • Clause 1.1.3 of the "Bushfire Protection Conditions" requiring that the library must be at a BAL-29 standard and that extra works be done in terms of "draft-excluding seals" and suitable caps or lids on the roof vents;
    • the CFA confirming that it is satisfied that the library (including the necessary further modifications that will be required) has been built to a BAL-29 standard and is fit for its purpose of protecting up to 196 students and associated staff in the event of a major bushfire event;
    • the Applicant's expert fire safety witness Mr Nicholson giving evidence that (incorporating the necessary further modifications) he is also satisfied that the library will operate at a BAL-29 standard and is "fit for purpose".
15. Complementing the bushfire safety credentials of the new library is the fact that the updated Application documentation sets out a comprehensive range of bushfire safety measures that the school must comply with. We accept that these measures are rigorous. They include:
    • The school being required during the nominated bushfire season to have adequate buses and available drivers on site, so as to be able to promptly evacuate all students and staff from the school in a major bushfire event.
    • The school being required to close on assessed Code Red/Total Fire Ban days (i.e. being the highest levels of assessed bushfire danger).
    • The maintaining of "defendable space" in and around the area of the school buildings.
    • All non-library school buildings being upgraded to a BAL-12.5 standard.
    • It being clarified that the "emergency response phone number" which the Dept of Education ("DOE") has mandated be used by the school where necessary is not a CFA number but a DOE-related number.
    • Romsey being nominated as the nearest "safe location" in a major bushfire event.
    • A substantial supply of water for bushfire-fighting must be maintained, where the school has an existing water tank with a 97,000 litre capacity.
16. In a situation where by the end of the hearing Council, the CFA, the project architect for the library and the Applicant's fire safety expert are all supporting the 'fire safety' merits of the updated Application, it is not obvious what else Mr Marsden could be expected in practice to put forward to demonstrate the acceptability of this aspect of the proposal.
17. Finally, while the process along the way involved its difficulties, it is commendable that the Applicant had generated and circulated a much improved Application that constitutes a suite of necessary modifications to the existing permit, that deals with the situation in a much more holistic and comprehensive manner. The Application evolved from its rather minimalist beginnings to the following extensive package of documents and plans including comprehensive and detailed permit conditions to be included on the amended permit; updated plans including improvements to facilitate bus access into the site; Comprehensive "Bushfire Emergency Management Procedures" and an updated "Emergency Management Plan for Candlebark School".

1. For the reasons set out above, following "repeat appeal" principles, the two key issues in this proceeding have been "bushfire safety" and "bus movement". We are satisfied that the updated Application adequately addresses these issues and accordingly we have decided that it should be approved.
2. We will amend the permit to provide for the use of the land for a school, vegetation removal and works as well as comprehensive permit conditions which deal with bushfire requirements in great detail. We will also approve amendments to plans and endorsement of related management documents forming part of the application.
3. To the extent that any party to the proceeding has raised other issues beyond those we have specifically dealt with above, we regard same as so peripheral as to not require further consideration.
4. For the removal of any doubt, we have appreciated the assistance and role of the CFA in this proceeding and it is pleasing to see that the CFA is becoming more involved in Tribunal hearings involving bushfire risk issues. However, in light of the important role that the CFA plays in providing specialist bushfire risk management input to the Tribunal, we have for future reference highlighted in our comments above those aspects of the CFA's role in this proceeding where we believe the CFA can and should improve their involvement.

83 Kerrie Road Romsey, described as Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,11 and 12 on Title Plan 675765K (formerly known as part of Crown Allotment 50A Parish of Kerrie, part of Crown Allotment 43 Section A, part of Crown Allotments 44D, 44E, 44F and 44A1 Section A Parish of Monegeetta, Crown Allotments 90A and 90D Parish of Rochford); and Crown Allotment 91A, Parish of Rochford (182 O'Sullivans Lane).

Use of the land for a school, waiver of bicycle parking, removal of vegetation and works generally in accordance with the endorsed plans.

1. Not more than 196 students must be present on the land at any one time.

1. The school must not accept more than 100 students until three copies of amended plans have been submitted to and approved by the Responsible Authority. The plans must be drawn to scale and dimensioned. The plans must be generally in accordance with the following plans:
   • (a) "Appendix C: Candlebark School Site Plan", amended 28 April 2012, detailing:
     • (i) the location of the buildings;
     • (ii) the extent of vegetation management zones 1 (shown in pink) and 2 (shown in yellow) but distinguished through the use of hatching and cross-hatching, respectively, rather than colouring as show on the plan marked Appendix I "Defensive Zones" dated 14 May 2012 (included as Appendix B to the Tribunal's order in Application no P1364/2011); and
     • (iii) hydrant and hydrant booster locations;

(b) "Appendix D: Candlebark School access Driveway", amended 28 March 2012, detailing:

• (i) access to the site from Kerrie Road; and

• (ii) on-site traffic management measures and

(c) the Traffix Design Drawing No. G12452-02 (Traffix Drawing).

1. The school must not accept more than 100 students until the buildings and works shown on the endorsed plans and set out in conditions 4 to 10 (inclusive) have been completed to the satisfaction of the responsible authority, unless those works have been included in the "Schedule of Works" 'Further fire protection for library' in which case those works must be carried out in the timeframe set out in the "Schedule of Works" endorsed under this permit to the satisfaction of the Responsible Authority.
2. With the exception of the library, all buildings including any verandahs or decking shown in Appendix C Candlebark School Site Plan must at least meet BAL-12.5 construction requirements according to AS 3959 - 2009 Construction of buildings in bushfire- prone areas with Amendments 1 and 2 (the Standard and any amendments published by Standards Australia as amended from time to time, and not a précised version in the Building Code of Australia).
3. The Library must at least meet BAL-29 construction requirements according to AS 3959 - 2009 "Construction of buildings in bushfire-prone areas" with Amendments 1 and 2 concerning smoke sealing, ventilation, operation of access doors concerning latching and locking, and external and internal signage modified to suit the library as a bushfire refuge. In addition, to the extent applicable, the Library must satisfy the requirements of the "Department of Education and Early Childhood Development - School Bushfire Refuge Assessment" dated 29 April 2009 (document WIT.3029.001.0217)
4. Fallen leaves and tree bark must be prevented from entering roof guttering by the fitting of a "gutter guard" device designed and fitted for this purpose. The "gutter guard" device must at least meet the requirements of clause 5.6.7 AS 3959 - 2009: "must be non-combustible" and not "sag" into the guttering in the event of bark and/or leaves burning on the upper side of or in the guttering beneath the device. In this context, "tree" means a perennial plant having a permanent, woody, self-supporting main stem or trunk, usually growing to a considerable height, and usually developing branches at some distance from the ground.
5. To minimise the entry of smoke, all external doors and openable windows must be fitted top, sides and bottom with draft-excluding seals.
6. All roof vents must be provided with caps or lids of a form that at least meet BAL-29 design and construction requirements and will prevent the entry of smoke when in place.
7. To prevent any radiation from a fire entering the library the glass façade must be fitted with blinds or shutters that must safely provide a radiation shield commensurate with the radiation threat.
8. Maintenance must be carried out as necessary to maintain the buildings on the land in a serviceable condition. Maintenance works must include, but are not limited to:
   • (a) The replacement of screen mesh if torn or otherwise breached;
   • (b) roof fixings tightened to prevent roofing iron lifting to allow entry of sparks or embers into the roof space;
   • (c) any exposed timber surfaces must be sanded and painted or sealed as often as necessary to prevent cracking or other deterioration; and
   • (d) seals around doors and windows, and wall and roof penetrations must be repaired or replaced as required.

1. The school must not accept more than 100 students until the "Schedule of Works" has been amended to the satisfaction of the Responsible Authority. When amended to the satisfaction of the Responsible Authority, the "Schedule of Works" will be endorsed and will then form part of the permit. The "Schedule of Works" must be generally in accordance with the document "Candlebark School Romsey Schedule of Works - Further fire protection for library" dated May 2012, but modified as follows:
   • (a) In Item 2, the deletion of the reference to internal shutters and this to be replaced with "the provision of 50 thick colourbond sheath magnesium oxide slide-down fire shutters to all external windows and doors" and for such measures to be installed before the start of the school year in 2013.
   • (b) The Requirements of Item 3 for 'Installation of Fire Rated entrance door' to apply to all external doors and to be installed by the start of the school year in 2013.

1. The school must not accept more than 100 students until the "Candlebark School: Bushfire Emergency Management Procedures" document has been amended to the satisfaction of the Responsible Authority. When amended to the satisfaction of the Responsible Authority, the "Candlebark School: Bushfire Emergency Management Procedures" will be endorsed and will then form part of the permit. The document must be generally in accordance with the "Candlebark School: Bushfire Emergency Management Procedures" document dated January 2012 by Community Safety Services Pty Ltd, but modified as follows:
   • (a) Under "Situation Awareness" section, the inclusion of a requirement to monitor SMS messages delivered by government and/or fire agencies to alert the community of fire risks.
   • (b) Under 'Evacuation Decision' the rewording of the second sentence to read as follows:

If the school is to be evacuated it will be to the corner of Park Lane and Barry Street, Romsey Recreation Reserve in Romsey by the most direct route unless such route is impractical given the conditions.

1. A static water supply of at least 72,000 litres set aside exclusively for firefighting purposes must be provided at all times in an above ground concrete tank in the location shown on "Appendix C - Candlebark School Site Plan".

1. One (1) unequipped external dual head fire hydrant is to be located as shown on Appendix C Candlebark School Site Plan and modified fire brigade booster assembly according to the requirements of AS 2419.1 - 2005 Fire hydrant installations Part 1: System design, installation, design and commissioning to serve the library.
2. The fire brigade booster assembly must be configured in a manner according to the requirements of AS 2419.1 - 2005 Fire hydrant installations Part 1: System design, installation, design and commissioning that enables firefighting tankers to draw water from the tank referred to in subclause 3.1 Firefighting Water Supply (above), except that the fire brigade connection to draw water must be at the tank wall and the range of Storz type adaptors must be provided by the school to enable fire brigade units to be able to draw water from the tank.
3. Appropriate hard-standing must be provided at the "booster point" to enable firefighting vehicles to travel to within four (4) metres of the fire brigade coupling on the tank outlet.
4. A single head hydrant must be provided adjacent to the tank to enable the fire brigade to pump water into the fire main to feed the dual head fire hydrant at the library.
5. The fire main between the fire hydrants must be 100 mm internal diameter pipe.

1. The installation of hydrants and hose systems must be in accordance with the relevant Australian standards including:
   1. hydraulic calculations detailing the pressures and flows of the system for firefighting purposes must be in accordance with AS2419-2005 Fire hydrant installations System design, installation and commissioning; and
   2. the location of hydrants and hose reels must be in accordance withAS2419-2005 Fire hydrant installations - System design, installation and commissioning and AS2441-2005 Installation of fire hose reels.

1. On completion of works shown on revised Appendix C, the hydrant system will be tested by a registered hydrant tester to certify at least the delivery of 20 litres of water per second at the hydrant giving at least 700kPa at the branch must be endorsed as part of the amended permit.

1. A private access driveway must be provided from the existing front gate at Kerrie Road to the fire brigade water supply booster point, as follows:

1. a trafficable surface with a minimum width of approximately four (4) metres, including bridges and culverts, and clear of vegetation and other obstructions vertically for four approximately (4) metres; 2. any gates must be at least 3.6 metres wide;

1. the driveway must be designed for a minimum load limit of 15 tonnes and be trafficable in all weather conditions normal for this part of Victoria;

1. at least two passing bays, each at least 20 metres long and having a trafficable width of at least six (6) metres and clear of vegetation and other obstructions vertically for four (4) metres must be provided every 200 metres; 2. any curves must have a minimum inner radius of 10 metres; 3. the average grade must not exceed 1 in 7 (14.4% or 8°) or if necessary no more than 1 in 5 (20% or 11°) for no more than 50 metres; 4. any dips must not exceed a 1 in 8 (12.5%) entry and exit angle; 5. turning of firefighting vehicles must be provided for at the fire brigade booster assembly by either; 6. a turning circle with a minimum radius of 10 metres; or 7. - a 'tee' or 'wye' head with a minimum formed surface of each leg being eight (8) metres long measured from the centre point of the head and four (4) metres trafficable width.
2. The private driveway must be maintained year-round.

1. A fire hose reel equipped with 36 metres of 19 mm hose and meeting the requirements of AS 2441 - 2005 Installation of fire hose reels must be provided outside the eastern entrance to the library where shown on Appendix C Candlebark School Site Plan.

1. The library must be provided with at least two (2) nine (9) kilogram ABE Dry Chemical Powder fire extinguishers to be mounted on the internal walls of the main library room adjacent to the external doorways.

1. Signs of reflective material advising the location of the firefighting water supply must be installed at the front gate and in other locations towards the tank.

1. The dedicated firefighting water supply must be maintained at a quantity of at least 72,000 litres year-round, except when actually being used for firefighting purposes.

1. Any firefighting pump, booster assembly, hose reel and hose and other fittings must be checked for deterioration or malfunction and repaired or replaced as necessary.
2. All fire extinguishers must be serviced as required by the relevant Australia Standard.

1. To ensure that the hose reel will function when needed, the pump must be run for at least 10 minutes and the flow of water through the system briefly tested every 14 days from the beginning of November through to the end of the CFA fire restrictions covering the area each year.

Access Driveway Vegetation Management Specification

1. The area for not less than 10 metres width each side of the access driveway serving the school as delineated on Appendix C Candlebark School Site Plan must be maintained as follows:

1. any dead vegetation (other than trees, which are referred to below) must be removed;

1. apart from trees, all exotic vegetation (vegetation not native to Australia) other than grass and ornamental ground cover or other shrubs deliberately retained or planted by the owners, and invasive native vegetation (vegetation that is native to Australia, but does not occur naturally on the subject land) must be removed; 2. deliberately planted or retained ornamental ground cover and other shrubs referred to in the previous dot point must not cover any more than 50% of this defensive space and on the remaining 50% this vegetation must be spread evenly with no dead material suspended in or on the ground beneath this vegetation; and the foliage must be at least three (3) metres distant from the access driveway; 3. there must be no elevated fuel, including Bracken Fern, other than "ornamental shrubs" referred to above; 4. leaf litter and sticks of a diameter not exceeding six (6) mm in thickness and tree bark on the ground must average no more than 10 mm in depth; 5. vegetative mulch used for landscaping must average no more than 10 mm in depth; 6. there must be no heavy or coarse fuels, such as standing dead trees, fallen tree limbs, stumps and the like; 7. any living tree open at the base must be sealed (rammed earth or similar) to prevent entry of fire into the tree base; and 8. for any tree or part of a tree that if it falls may fall onto the access driveway an arborist's report on the soundness of that tree must be obtained every 12 months. Any recommendations in the arborist's report must be acted on.

1. Apart from plantings necessary to maintain the existing tree distribution level on a one-for-one basis, revegetation or "vegetation net gain plantings" applying to trees must not be undertaken on the subject land within 100 metres of any building.
2. The area surrounding the school buildings must be delineated into two zones (vegetation management areas), indicated on the attached plan in pink and yellow respectively, referred to as Zone 1 (pink or hatched) and Zone 2 (yellow or cross-hatched).The delineated vegetation management areas must be maintained to the following standard:

1. Dead tree branches below 2 metres from ground level must be removed.
2. Within 10 metres of a building, flammable objects such as plants, mulches and fences must not be located close to vulnerable parts of the building, such as windows, decks and eaves.

1. d) The remaining vegetation be maintained to current conditions in so far as the number of trees and shrubs should not be increased, such conditions are to be recorded by way of a high resolution aerial photograph.

1. Grass must be no more than 10cm in height and leaf and other debris must be mowed, slashed or mulched.
2. Dead tree branches below 2 metres from ground level must be removed.

1. Shrubs must be in clumps of no greater than 10 square metres which are separated from each other by no less than 10 metres.

1. The revised "Emergency Management Plan for Candlebark School" dated April 2012 must be endorsed as part of the amended permit. After it is endorsed, the plan must be reviewed on an annual basis and implemented to the satisfaction of the Responsible Authority and CFA.

1. Effective landline telephone communications facilities must be available at Candlebark School at all times.
2. To enhance the performance of cellular telephone facilities external antennae must be permanently installed at one or more strategic locations within the school. Externally exposed cables connecting these antennae must be shielded to protect those cables from radiant heat flux not exceeding 12.5 kW/m².
3. Operational satellite telephone facilities must be available in the administration building at Candlebark School during the proclaimed fire danger period (otherwise known as CFA fire restrictions) applying in the Candlebark area each year.

1. The school must regularly emphasise to all drivers of school vehicles the importance of keeping to the left of Kerrie Road when approaching the school entrance from the south. The details of how such notification is given to drivers must be to the satisfaction of the Responsible Authority.

1. Advisory signs "school entrance ahead" or similar should be installed on the approaches to the entrance driveway of the school at the permit holder's expense, to the satisfaction of the Responsible Authority.

1. Vegetation may be removed to facilitate the works set out in the Traffix Drawing endorsed under this permit, to the satisfaction of the Responsible Authority. In this process:

1. excavation must be minimised within the Tree Protection Zones (TPZ) of any trees to be retained; 2. temporary TPZ fencing must be erected on the edge of the existing roadway to maximise tree protection;

1. all excavations within the TPZ of any trees to be retained must be supervised by the project arborist; and

1. a replacement program is to be established for the removal of the tree hereby permitted. Replacement plants should comprise a mixture of trees, shrubs, herbs, and grasses with a minimum of 10-15% of the replacement plants being trees.

1. The site shall be so ordered and maintained as not to prejudicially affect the amenity of the locality by reason of appearance.
2. Where external lighting is provided it must be fitted with suitable baffles and located so as to prevent the emission of direct light onto adjoining properties or roadways to the satisfaction of the Responsible Authority.
3. The following shall be undertaken to the satisfaction of Responsible Authority:
   • (a) If the proposed new use of facilities do require additional buildings or services for which a separate permit is required, then the applicant/owner shall restrict sediment discharges from any construction sites within the property in accordance with Construction Techniques for Sediment Pollution Control (EPA 1991) and Environmental Guidelines for Major Construction Sites (EPA 1995).
   • (b) That stormwater run off from all buildings, tanks and paved areas must be dissipated as normal un-concentrated overland flow beyond the site.
   • (c) Clear vegetation on the inner side of the bend north of the entrance to "Tye Estate" to improve sightlines.
   • (d) School buses may only utilise that section of Kerrie Road north of the school after the school has:
     • (i) provided a site plan that is to the satisfaction of the responsible authority. This site plan must show the respective parking areas of the school buses, staff car parking and parent/visitor car parking; and
     • (ii) installed appropriate signage highlighting these respective parking areas to the satisfaction of the responsible authority.

The section of Kerrie Road north of the school may be used by large buses/coaches no more than one round trip per week and 25 seat mini buses no more than one round trip per day.

1. The following shall be undertaken to the satisfaction of Southern Rural Water:
   • (a) That in the absence of. a reticulated sewer disposal system permits for buildings with the potential to generate effluent shall require that the site is capable of containing an appropriate water treatment system and that the set back distance for the disposal of effluent in accordance with the "Code of Practice for Small Wastewater Treatment Plants" (June 2000).
   • (b) If any works will impact on a waterway or ground water or will include the use of water from these recourses or from a dam, soak or spring, it will be necessary for the land owner or applicant to apply to SRW for a licence in accordance with Section 51 or 67 Water Act 1989.

1. The following shall be undertaken to the satisfaction of Council's Health Department:
   • (a) Inspection of the system, by an accredited person or servicing agent, must be carried out annually to ensure the ongoing effectiveness of the system. Copies of the inspection (including any maintenance carried out) report must be submitted to the Macedon Ranges Shire Council within 28 days of receipt of the report.
   • (b) Any grease interceptor is to be pumped out every three months.
   • (c) The septic .tanks must be desludged once every three (3) years. Evidence of the desludging must be supplied to Council within 28 days of the desludging.
   • (d) An initial sample of effluent from the outlet of the treatment lagoons is to be analysed by a person or laboratory registered by the National Association of Testing Authorities for biochemical oxygen demand and suspended solids.
   • (e) Following the initial sample of the effluent further samples must be taken annually and analysed by a person or laboratory registered by the National Association of Testing Authorities for the above indicators.
   • (f) Copies of all analysis shall be forwarded to Council Health Unit within 28 days of receipt.
   • (g) No modifications or variations to the treatment system may be made unless approved by Council Health Unit, or EPA, as appropriate.
   • (h) Potable water is used for food preparation.

1. This permit shall expire if the use and development hereby permitted is either not commenced within two years, or not completed within four years, from the date of the permit. A written application may be made to the Responsible Authority for the extension of the permit prior to the permit expiring or within three months after the expiry of the permit.

[1] This copy has been revised in accordance with the Correction Order dated 24 July 2012 issued under s119 of Victorian Civil and Administrative Tribunal Act 1998.

[2] Marsden v Macedon Ranges SC [2011] VCAT 339

[3] See page 5 of Ms Dunstan's Traffic Report.