For the reasons set out above, my overall finding has been that:
I have allowed the permit to be corrected in terms of the description of the property in the preamble, which was non-contentious;
I see it as an acceptable planning outcome to amend Condition 4(d) to allow large buses/coaches to use the northern section of Kerrie Road up to once a week; but
any broader amendment to Condition 4(d) or an increase in the cap on student numbers at the school would in my view be premature.
Whilst it was not queried at the hearing, the power to amend permit conditions in relation to an otherwise prohibited use was recently confirmed in the decision of Fosters Group Ltd v Mornington Peninsula SC[9].
I note that Council put forward a suite of proposed additional conditions, which were discussed at the hearing. Apart from the requirement for a site plan firming up the existing parking arrangements which I have incorporated by way of the new Condition 4(e), I otherwise consider that the amendment I have allowed to Condition 4(d) does not trigger the need for these proposed new conditions.
In other words, having refused the proposed new cap of 196 students, I see the case for these new conditions as also falling away. However my preliminary view is that if a planning decision maker were to potentially increase the number of school students substantially above the current cap of 100, it is reasonable for Council to at least put forward a range of new conditions for consideration as part of that process, and I have made passing comment on one or two of them above. For example, whilst I do not see the change I have made to Condition 4(d) as in itself justifying the need for the school to seal the driveway entrance and nearby sections of Kerrie Road, such sealing seems appropriate if at a future stage the cap on student numbers is increased. Whilst it would be advantageous for the school to modify the driveway to provide passing bays as recommended by Ms Dunstan at page 25 of her report, again I do not see my variation of Condition 4(d) as making this a mandatory requirement, bearing in mind that the extra bus movement may not necessarily overlap with the school drop off or pick up time.
In closing can I also indicate that even if the school continues to operate under its current cap of 100 students, it seems a good idea for there to be some appropriate road signage in the Kerrie Road approach areas north and south of the school, either dealing with recommended speed limits and/or alerting the driver that they are about to drive past a school. However this is outside of the Tribunal's jurisdiction, as these signs would be installed on the road reserve not the subject land.
Marsden v Macedon Ranges SC [2011] VCAT 339 (4 March 2011)
This proceeding involves an application pursuant to Section 87A of the Planning and Environment Act1987 to amend an existing planning planning permit which allows the operation of the former Tye Estate near Romsey as a school. The current planning permission sets a cap on school student numbers of 100. The proposal is to lift this cap to 196 students, correct the description of the subject land in the permit preamble and vary the scope of use of school buses which is regulated by Condition 4(d). Objections have been received from certain neighbours and the Country Fire Authority has become involved.
A series of Tribunal cases such as Popular Pastimes Pty Ltd v Melbourne CC[2008] VCAT 1184 have reinforced that Section 87A provides a very broad discretion to amend a permit. In this proceeding the Applicant submitted (and no other party contested) that Section 87A does provide the mechanism per se to potentially amend the existing permit in the manner proposed (and I agree).
The hearing of this proceeding came before me on 20 and 21 January 2011. At this time I heard submissions and received evidence from the persons listed above. Certain follow up information was provided by correspondence. I inspected the site and surrounds after the hearing.
My finding has been that it is an acceptable planning outcome to correct the property description (which was non-contentious) and also to vary Condition 4(d) to allow the use of the north section of Kerrie Road no more than once a week by large school buses/coaches. However I have resolved that it would be premature to make any further changes to Condition 4(d) or to increase the cap on student numbers at this stage.
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.
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.
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.
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[1]. 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).
It needs to be remembered that the Black Saturday Victorian bushfires in February 2009 involved not only huge property damage but the loss of 174 lives. Such a shocking extent of "loss of life" has in turn led to a game-changing new emphasis on properly addressing bushfire risks as part of the assessment of new works or uses in bushfire prone areas.
A key Tribunal decision demonstrating this greater rigour for assessing bushfire risks is Masten Bennett & Associates v Nillumbik SC[2010] VCAT 900. This case involved a subdivision proposal with respect to a site in St Andrews. Part of the Tribunal's lack of support for the proposal was the Tribunal's findings that (in the context of this being a fairly isolated and bushfire prone location) the bushfire risks posed by the subdivision had not been properly resolved. The context for the proceeding included the CFA's position that it did not object to the proposal and that its approach to assessing the bushfire risk focussed on the site itself rather than the broader picture (the Tribunal did not share this view).
Guidance can also be found in the Bushfire Royal Commission Final Report. A fundamental theme running through the Commission's findings is the need in bushfire mitigation measures for greater emphasis on the protection of human life. For example, in the "Introduction" section of the 2010 Royal Commission Final Report Volume 1 (The Fires and the Fire Related Deaths) at page xxviii, the following statement is made (with my emphasis.
Mr Marsden indicated that the large majority of school students use school buses to get to the school, with the primary catchment area for students being to the south of the school. I understand that currently the school typically uses one large bus and two smaller ones, whereas if the student cap was increased to 196 students it is anticipated that this would change to using 3 large buses (about 65 seats each) and one smaller one.
I am told that the school has put in place an Emergency Management Plan as part of getting established, which has involved consultation with the Country Fire Authority regarding this plan. I am also informed that the school already closes down on designated "code red" fire risk days, and sometimes on designated "extreme" days.
On 19 November 2008 a further planning permit application was lodged, for extensions and additions to the relevant existing school buildings. There was no public advertising of this application. In due course a further planning permit No. 2080590 was issued allowing same. The majority but not all of these permitted buildings and works have since been carried out to the relevant school buildings.
Since the granting of this permit No. 2080590 the school has gained a further "buildings and works" planning permit allowing the construction of a new school library. This approval was associated with the Federal "Building the Education Revolution" funding program, where the then State Minister for Planning was (in the usual way) the Responsible Authority. The construction of this library is now substantially progressed. The CFA were a referral authority for this permit application and made no objection to it, subject to certain conditions being included on the planning permit[2]. During my inspection I was able to both externally and internally view the part-completed library building.
On 14 April 2010 the Tribunal received a Section 87A Application to amend the P205-0135 permit. The key changes sought as set out in the application documentation in summary are to:
Correct the description of the subject land in the preamble to the permit.
Increase the cap on students from 100 to 196.
Allow school buses to utilise that part of Kerrie Road extending north from the school up to once a week.
It is important to bear in mind that the proposal does not have any "buildings and works" aspect to it.
Objections to the application were received from certain neighbours and Council does not support the proposal. The hearing of this matter occurred before me on 20 and 21 January 2011. At this time I received evidence from the witnesses listed above and submissions were made to me by the persons listed above. By consent, I allowed the Country Fire Authority to be joined as a party to the proceeding.
In relation to the Land Capability Assessment prepared for the Applicant by Mr John Randles, the other parties did not require Mr Randles to appear to respond to questions, nor did I. Bearing in mind that none of the parties queried the capacity of the existing sewerage system to deal with the proposed expansion of the school, I am satisfied this aspect of the proposal is straightforward and I have taken my Randles' report as read.
I allowed the Applicant at the beginning of the second hearing day to table a "Statement of Design Approach" in relation to the new library building. This Statement was prepared by the project architect for the new library, being Mr Paul Haar. I was told by Mr Townsend that Mr Haar was unavailable to assist the Tribunal in person since he was on holidays some considerable distance away. In terms of how much weight I have given this Statement, I have taken into account that it was not prepared/pre-circulated as an expert report, nor was Mr Haar made available to answer questions. However the Statement has nevertheless provided some useful information for the Tribunal.
After the hearing I conducted a site inspection in the manner I have described above. I allowed for a follow up process whereby any final written comments on the "Statement of Design Approach" could be provided by the other parties. Within these particular parameters, I have taken those follow up comments provided into account.
The site is partly zoned Farming Zone and part Rural Conservation Zone Schedule 1, with the school building and driveway area falling within the RCZ1 area. In addition the environmental sensitivity and bushfire potential of the subject land is reflected in it being subject to the following overlay controls - Environmental Significance Overlay Schedule 5, Significant Landscape Overlay Schedule 1 and Wildfire Management Overlay. The Country Fire Authority has advised (and no other party contested) that the Tye Estate was substantially burnt as part of the Ash Wednesday bushfires in the 1980s. This area was not affected by the February 2009 Black Saturday bushfires. The relevant planning policy framework is set out in the "Information" section above.
To summarise the Tribunal's findings, I accept that some aspects of the proposal are straightforward in terms of the planning merits. I wish to make it clear that the Tribunal supports these aspects of the proposal and considers that they do not require further debate. In particular, I have made orders allowing the description of the property to be corrected in the preamble to the Permit - this was non-contentious at the Tribunal hearing.
With respect to the proposed increase in the cap on student numbers from 100 to 196, I have unresolved major concerns are in relation to:
the bushfire risks associated with the proposed extra 96 potential students; and
the traffic risks associated with two or three large buses approaching the site from the south needing to move right across to the other side of Kerrie Road so as to have enough room for the bus to make the tight turn into the school driveway