McNaughton v Surf Coast SC [2016] VCAT 2107

1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 application P877/2016 is amended by changing the name of the applicant to Ian and Phillip McNaughton.

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
   • (a) Plans by James Deans and Associates Architects entitled New Bells Beach House (drawings TP01B to TP11B dated September 2016);
   • (b) Plans by James Deans and Associates Architects entitled Proposed Tourist Accommodation (drawings EX01B to EX03B and TP01B to TP09B dated September 2016).

1. In application P877/2016 the decision of the responsible authority is set aside.
2. In planning permit application 15/0295 a permit is granted and directed to be issued for the land at 130 Bells Road, Bells Beach in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
   • (a) the construction of buildings and the construction and carrying out of works;
   • (b) the use of the land for the purposes of group accommodation and dwelling;
   • (c) the removal and lopping of native vegetation.

Ms Mimi Marcus, Solicitor of Maddocks solicitors and Ms Eve Mahlab in person.

a- construct an extension onto the existing dwelling on the land and to use the extended building for the purposes of a group accommodation, and;

b- construct and use a new dwelling[1].

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

The subject land is an irregular rural lot with a frontage of approximately 220 m to Bells Road to its north west. The land has an area of approximately 85.9 ha and comprises a mix of open pasture and areas of remnant vegetation. The land is undulating, falling generally towards the coastal reserve to the east and south east. There is an existing house located, centrally on the land, on the fringe of a large area of remnant vegetation adjacent to the south boundary of the land.

The Tribunal inspected the subject land in the locality accompanied by representatives of the parties other than Ms Mahlab on Wednesday,

2 November 2016. On the same day the Tribunal inspected the Mahlab property and its relationship to the subject land.

1. This is an application to review the decision of the responsible authority to refuse permission for the construction of an extension to an existing dwelling for use as group accommodation (comprising two attached dwellings for short-term tourist accommodation) and the construction of a new replacement dwelling, at 130 Bells Road, Bells Beach.

1. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons relating to the alleged failure of the proposal to protect the environmental, landscape and cultural values of the Shire and to respond appropriately to the objectives of the Rural Conservation Zone.
2. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality. All of which has informed this decision.
3. For the reasons set out below it is ultimately my decision that the decision of the responsible authority should be set aside and a permit granted. In summary, my conclusion in respect of this application for a modest facility for tourist accommodation and a dwelling is that:
   1. in the short term the impacts of the proposed buildings and associated works on the landscape and environmental values of the land are very minor and that in the longer term the maturation of the proposed landscape is likely to result in a positive outcome.
   2. the proposal will contribute to the economy of the area by providing tourist accommodation in the viewshed of the Bells Beach Surfing Recreation Reserve, an important tourist related destination, while carefully protecting the valued characteristics of the area;
   3. the proposal will contribute to improving the accessibility of this important tourist destination for all people;
   4. the proposal will provide a supplementary income which will help support the ongoing going use the land for farming purposes;

and therefore, the proposal will result in a small net community benefit.

1. The subject land is an irregular rural lot with a frontage of approximately 220 m to Bells Road to its north west. The land has an area of approximately 85.9 ha and comprises a mix of open pasture and areas of remnant vegetation. The land is undulating, falling generally towards the coastal reserve to the east and south east. There is an existing house located, centrally on the land, on the fringe of a large area of remnant vegetation adjacent to the south boundary of the land.

1. The subject land is the largest of three larger rural lots which sit within a rural residential enclave which is included within the Rural Conservation Zone. The eastern portion of this enclave, including the subject land, provide a rural backdrop to the coastal reserve, the Bells Beach Surfing Recreation Reserve.
2. The applicant's father purchased the land as part of a larger parcel in 1954. Overtime some of the larger parcel was disposed of by subdivision and sale of parts of the land, such as the lots on the north side of Jarosite Road including the Mahlab property and such as that part of the land which now constitutes part of the Bells Beach Surfing Recreation Reserve.
3. The applicants operate a family farming enterprise breeding cattle and sheep utilising land at Skipton, Connewarre, Tocumwal and the subject land. The subject land is a relatively minor element in their farming operation and is used for the fattening of approximately 40 head of cattle when the land is an appropriate condition for this purpose.
4. It is part of the McNaughton family folklore that the applicants' father was on friendly terms with some of the pioneering surfers at Bells Beach and allowed them access to the beach via his land at a time when there was no access track within the coastal reserve itself..
5. The coastal reserve at Bells Beach has been included in its own special crown reserve the Bells Beach Surfing Recreation Reserve in recognition of the social and historic importance of the reserve to Australian surfing culture. The reserve is within a Heritage Overlay HO88 and appears upon both the Victorian and Commonwealth heritage registers. In part the Commonwealth Heritage Register states:

Bells Beach is an internationally renowned surfing location which is strongly associated with the development of surfing and a surf industry in Australia, and has considerable importance for the large Australian surfing community. ...

The reserve includes large car parks which are often busy being used by both by both surfers and tourists. The Surfriders Association submit that surfing tourism contributes many millions of dollars to the local economy. It is apparent that the Surfriders Association and the public agencies with which they work are working hard to maintain and enhance the natural values of this important reserve.

1. The protection of the landscape values of the rural backdrop to the Bells Beach Surfing Recreation Reserve is an important issue in the planning scheme, and the important issue in this application. Map 1 of clause 21.06_,_ Rural Landscapes, places the subject land within the Cape Otway Road to the Northern Foothills and Coast landscape unit, the characteristics of which are described as follows:

Cape Otway Road to the Northern Foothills and Coast - visually attractive undulating landscape of open farm land, framed by dense bushland. It extends from the steepening valleys and foothills of the northern slopes of the Otway Ranges in the west, through the lifestyle bush blocks of Wensleydale and Gherang to the semi-pastoral hills of Bells Beach in the east. The gently rolling hills, with some incised creeks and gullies, and pockets of remnant vegetation contribute to a sheltered, enclosed landscape. Buildings tend to be located away from roads, often in valleys or among trees. Bells Beach is listed on the Victorian Heritage Register for its cultural and aesthetic heritage values. While the main land use in the precinct in farming, it occurs predominantly for lifestyle purposes. Dairying, particularly concentrated around Deans Marsh, has declined and timber, grass seed production, vines and olive groves are emerging. There are a number of rural tourism businesses primarily around Deans Marsh and Bellbrae. The landscape and environmental values of this precinct are the primary reasons for its attractiveness for tourist and lifestyle use and development.

1. The proposal is in two parts, it is proposed:
   1. to construct an extension onto the existing dwelling on the land and to use the extended building for the purposes of a group accommodation comprising two attached dwellings for the accommodation of tourists, and;
   2. to construct and use a new dwelling to replace the dwelling redeveloped for the purposes of group accommodation.

Figure 3 - Aerial Photograph Showing Subject Land and Location of

Proposed Group Accommodation and Dwelling[3]

Figure 4 - Extract from Plans Showing Close-Up Site Layouts for the

Proposed Group Accommodation and Dwelling[4]

1. The proposed group accommodation will be a contemporary single story building accommodating two, two bedroom dwellings with an overall area of 264 m². The group accommodation will be accessed via a gravel access track and turning circle constructed to CFA standards, the access track will largely follow the route of the existing access track. The required car parking is provided adjacent to the group accommodation.
2. The proposed dwelling will be a contemporary single story, four bedroom, dwelling with an overall area of 265 m². The dwelling will be accessed via a new gravel access track and turning circle constructed to CFA standards, the required car parking is provided adjacent to the dwelling. The proposed route for the access track utilises the topography of the land to minimise its visibility from neighbouring properties and the coastal reserve.
3. It is also proposed to undertake landscaping in association with the proposed development. The applicants have arranged for locally indigenous trees to be propagated, and have already fenced some young trees which have emerged naturally as a consequence of this wet spring in the area of the proposed house for use if the permit is granted.
4. Little or no significant vegetation is to be removed for the construction of the proposed buildings and access tracks. However, there will need to be some tree removal and lopping to satisfy the defensible space requirements under the more modern fire safety regime. The department is satisfied that in relation to any losses of vegetation a satisfactory net again can easily be achieved on site.

1. At the commencement of the hearing Mr Morris applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Morris's request.
2. The application to VCAT was made in the name of the town planning consultant acting on behalf of the owners of the land. In accordance with the Tribunal's practice I will amend the name of the applicant so that it is made in the name of the owners of the land Ian and Phillip McNaughton.

Considering the evidence having inspected the land

1. I am satisfied that the principal issue in this application is the impact of the proposal on environmental and landscape values in the context of a planning scheme which emphasises the importance of these values to Bells Beach Surfing Recreation Reserve and where there are zone objectives and numerous strands of policy which seek to protect these values. Given that the impact of the proposal on native vegetation is relatively small in fact the important issue is the impact of the proposal on landscape values.
2. Mr Schutt's visual analysis has been very helpful to me in an assessment of the impact of the proposal on landscape values. Before summarising his findings it is useful for me to set out the grading system he uses for categorising visual impacts. This grading system is set out below:

Extreme: entailing close proximity in an exposed location incapable of effective mitigation, where in principle I would consider the proposed structures as impacting unacceptably on visual amenity, with limited opportunity for the implementation of mitigation measures.

Substantial: where impacts will be substantial, with the proposed structures forming a major element in the view. There will be a tendency for the proposed structure to be more dominant than other landscape elements. Consideration of the perceived feasibility and appropriateness of mitigation measures will determine whether or not the development results in unacceptable in Impacts on visual amenity.

Moderate: proposed structures will typically be visible, sometimes obviously so. Notwithstanding this, the generally greater distances involved, together with the contribution to visual screening typically provided by topography or vegetation, results in situations where proposed structures will not be a dominant element in the view mitigation measures are generally not necessary.

Limited: proposed structures are visible but form only minor elements in available views as a result of distance and/or screening by vegetation and/or topography. Mitigation measures are considered unnecessary.

Negligible: proposed structures are visible in clear conditions and may be recognisable, but conversely may sometimes not even be noticed. Mitigation measures are considered unnecessary.

1. Mr Schutt concluded that from the view locations[5] in the car parks either the extension to the existing dwelling for the group accommodation or both the extension and the proposed new dwelling, would be partly visible prior to the maturation of the proposed landscaping. He also concluded that from all the view locations parts of the access tracks would be visible usually in pasture. In respect of the view locations in the car parks, his assessment was that the visual impact was limited and in time would be mitigated by the proposed vegetation to the extent that the impact would be negligible. In respect of the view location adjacent to the Mahlab boundary he assessed the impact as negligible.
2. As a consequence of my inspection I am satisfied that Mr Schutt's evidence represents a reasonable and useful assessment of the likely visual impact.
3. It was my observation that the darker palette of colours and materials selected by the architect in this case significantly reduces the visual impact of buildings within the landscape, particularly when, as is the case in this application, the new buildings will be viewed against the back drop of existing remnant vegetation. Until the landscaping matures to the extent that, by and large, the proposed building are effectively screened the choice of materials will in my view significantly moderate the likely visual impact.
4. Obviously, from various viewpoints sections of the proposed access tracks become visible, however, it is my opinion that access tracks traversing rural properties are an ordinary aspect of rural landscapes. Therefore, to the limited extent that access tracks are visible there is a change to the existing condition but it is not detrimental change.
5. I also observed that a visitor to the Bells Beach Surfing Recreation Reserve does not gain their appreciation of the the rural hinterland to the reserve from a stationary viewpoint. Rather, their experience is informed by a range of views obtained while both moving and stationary. In this way the viewer is conscious of the presence of buildings within viewshed. As a consequence of this I agree with the visual impact evidence and believe that even for the period during which the new buildings will be partly visible most observers including regular surfers, as will not notice the change.
6. My conclusion in relation to the likely impacts of the proposal on the landscape values of this hinterland to the reserve is that even in the short term, prior to the partial maturation of the proposed landscaping, the impact of the proposal is, to use Mr Shute's language, limited. In the longer term the outcome is that the extent to which buildings are part of the landscape character of the land, viewed from the reserve, will be diminished while the extent to which native vegetation is a part of this landscape will be enhanced.
7. In relation to environmental values the significant environmental impact is the loss of vegetation through the removal and lopping of trees within the defendable spaces about the proposed building is in my view the extent of any loss of vegetation in this case is very minor indeed. Moreover, the ease with which a net gain can be achieved on the site and the new landscaping proposed, suggests to me that within a relatively short space of time there will be a positive environmental outcome.
8. Having regard to the evidence and my observations on inspection I consider that in the short term the impacts of the proposed buildings and associated works on the landscape and environmental values of the land are very minor and that in the longer term the maturation of the proposed landscape is likely to result in a positive outcome.
9. The question I now move on to resolve is whether or not, on balance, this outcome represents an appropriate response to the zone objectives and planning policy. However, before I address these considerations I will discuss issues arising from submissions and evidence which go to the question of the proper approach to decision making in this case.

1. There have been various elements of submissions made in this application which raise questions about the appropriate approach to decision making. These elements include, Mr Glossop's how versus why submission, the issue of precedent raised by respondents generally, Mr Bennett's submission about people's spiritual experience of Bells Beach Surfing Recreation Reserve and its environs and finally submissions about risks associated with the operation and management of the tourism facility.
2. Then there is the fourth strategy of the first objective of the third subclause of clause 21.06 of the Surf Coast planning scheme which states:

Strongly discourage development on the coastal side of the Great Ocean Road, and in particular, avoid any development within the viewshed of the Bells Beach Surfing Recreation Reserve. (my emphasis)

this strategy was relied upon heavily by various parties to this application. Literally, this clause implies a prohibition, how then is it to be approached in the task of integrated decision making called for by clause 10 of the scheme. I deal with this issue first because the answer is pertinent to the other questions raised in paragraph 29.

1. A starting point in this discussion is a decision of mine from 1999,

SMA Projects v Port Phillip CC [1999] VCAT 1312, made in the context of the then new, new format planning schemes which sought to introduce performance based assessment of proposals in accordance with a planning policy framework. In this case I was confronted with a policy which also implied a prohibition. I have included a more complete extract from this decision in appendix 3, but in the following shorter extract provides a useful summary of the approach I adopted in that decision.

In the new VPP based planning system decisions in the exercise of discretion should be heavily influenced by the strategic and planning policy framework set out in the planning scheme. What then is to be done in this case in the face of this quite clearly stated policy that any significant heritage place should be conserved. Mr Wright set out a number of arguments or statements on what he regards as the correct approach to the application of policy in planning schemes, I hope I correctly paraphrase his submissions as follows:

• Policy can never be more than a guideline, it should not be applied as if it is a mandatory limitation on the exercise of discretion provided for by the scheme.
• Policy must be considered in a framework which includes all the policies relevant to a proposal in the scheme.
• ...
• Policy should not be applied in a way which leads to a result which is inconsistent with a proper analysis of the evidence.
• The planning reform process was intended to result in a system that was capable of producing good or preferred outcomes, policy should not constrain a decision maker into accepting something less than the best decision in each case.[6]

1. In SMA Projects I also quoted extensively from Final Report, New Format Planning Schemes by Senior Panel Member Helen Gibson (now Deputy President Gibson of this Tribunal), part of which was relied on by Mr Morris in his submissions in this case:

The panels see the solution in concentrating on the objectives of the policy, rather than on the words of the policy that "encourage" or "discourage" certain uses. If it is these provisions that are concentrated on, then local policies will act as de facto zones and the flexibility that the planning reforms have introduced by way of the new zones will be lost. Instead, it must constantly be asked, irrespective of whether it is stated that a use is "encouraged" or discouraged", what will the outcome be? Will it further the objectives of the policy or will it be contrary to them? If it will do neither (in other words, it is policy neutral), then it must be asked, why not allow the use? There may be other policy or amenity reasons why it should not be allowed. But if there are not, the intent of the reforms is to allow it to proceed, notwithstanding the policy may specifically provide that it is a use to be "discouraged". (Mr Morris's emphasis)

1. At one point in the decision I said, policy must be applied in an intelligent and flexible way having regard to the entire strategic and policy framework, I think this is a simple summation of the correct approach, an approach now advocated by the planning scheme itself at clause 10.04:

Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

1. In this case, the literal application of this one strategy would mean that the McNaughtons could not propose a new hay shed for the continued use of their land nor could the Mahlabs propose a small pavilion to provide shelter to the users of their tennis court, even if in both cases they can demonstrate "negligible" impacts on environmental or landscape values. I am confident that this is not the intended outcome of the scheme. A decision maker must consider the entire policy framework and balance competing objectives to form a conclusion about whether or not an acceptable outcome is achieved.
2. I consider that Ms Bisucci was essentially endorsing this proposition when in her submission she said:

Council accepts that whilst policy is not determinative in any decision-making and that simply because a proposer use is not in a location preferred by policy, does not mean that cannot be ultimately found acceptable. Further, Council acknowledges that tourism policy which strongly encourages a growth in the sector including the provision of new tourist accommodation and that such sites may be found outside the preferred locations but ultimately a balancing exercise needs to be undertaken with the other provisions in the scheme to assist the Tribunal in its ultimate decision-making on this issue.

1. I discuss the relationship of the current proposal to the policy framework later in these reasons.

1. Mr Glossop in his witness statement put forward an observation that in his view the applicants and the council officers failed in their assessment the proposal by focusing on the how rather than focusing on the why, saying:

The uses and developments proposed are not as of right. In previous decisions the Tribunal has framed its analysis of proposals in the Rural Conservation Zone around the question of 'why should something be allowed?' and have been critical of proponents instead based their arguments around the proposition of how a proposal can be accommodated.

This proposition was enthusiastically adopted by parties opposed to the application.

1. I sought to understand this proposition by asking Mr Glossop questions while he was giving evidence and I have since read the case[7] he relied on and the related case referred to in that decision. Ultimately, I think there is no helpful distinction between the ideas of how and why which would aid in making a decision. One could just as easily reframe this proposition by saying the answer to the question why should something be allowed? is to be found by an assessment of how the proposal performs in relation to the planning policy framework. This is in fact the essence of a performance based approach to decision making under the planning scheme, it is what is required by clause 10.04.
2. The decision of the Council to refuse this application notwithstanding the recommendation of its planning officers is an example of how two groups of people familiar with the planning scheme and the locality can reasonably form a different opinion, a circumstance acknowledged by Justice Osborn of the Victorian supreme court in Rozen & Anor v Macedon Ranges Shire Council & Anor[8]. The fact that Council disagreed with its officers does not necessarily mean that one or the other has adopted the wrong approach to decision making. Rather, it might well mean that the decision involves complex questions about which there may be legitimate disagreement among reasonable people.
3. Mr Glossop may have been influenced make the observations referred to above by the fact that Council officers had formed the view that in respect of the question of community benefit the proposal was neutral, that is it neither benefited nor disbenefited the community[9]. He may have been of the opinion that this conclusion of the officers was itself adverse to the application and that it should not have been approved unless it could be established that there was a community benefit. This matter is also addressed by Justice Osborn in Rozen[10] where he approved of the proposition that in any application it is sufficient for the outcome to be acceptable it does not have to be ideal.
4. The following extract from Rozen includes the conclusions of the court referred to above
   1. Furthermore, the potential complexity of issues raised by a particular application renders the question of what would be the optimal form of development for use in a particular case fundamentally difficult of resolution and one on which different minds might reasonably differ.
   2. In Knox City Council v Tulcany Pty Ltd, I observed:

The planning scheme does not require an ideal outcome as a prerequisite to a permit. If it did, very few, if any, permits for development would ever be granted and there would be difficult differences of opinion as to whether the outcomes were in fact ideal. The Tribunal is entitled to grant a permit where it is satisfied that the permit will result in a reasonably acceptable outcome having regard to the matters relevant to its decision under the planning controls.

1. For these reasons I accept the appellants' submission that the test which the Planning Scheme requires to be applied is one of acceptable and not ideal outcomes.

1. Several parties were concerned that a decision to grant a permit in this case would create a dangerous precedent opening the floodgates to new tourism ventures. Mr Noyes-Brown referred to earlier more significant ideas for development put forward by the applicants, or the applicant's father, in the 1990s and more recent examples of enlargements or variations of various developments in Torquay as examples of this perceived problem.
2. A default response to submissions of this type has been that VCAT is not a court of precedent. While this is correct in a legal sense, my decisions do not bind any other decision makers, it is not entirely accurate. A decision to grant a permit in this case is a precedent for the idea that a small group accommodation proposal may be acceptable in this planning context. However it is a very limited precedent which really applies to this site and the circumstances of this application.
3. Ultimately, a permit granted in this case would be a precedent for a very small facility, on a very large site, which on analysis will only have a negligible impact on environmental and landscape values. It would be extremely unjust to refuse an application which results in an appropriate outcome because it might be used as a precedent for some future proposal. Any new proposal must independently demonstrate how it responds satisfactorily to the planning policy framework

Spiritual responses to change and the potential for change

1. Mr Bennett spoke of how for many surfers, surfing at Bells Beach is a spiritual experience, a result he says of the harmonious beauty of the natural environment both on land and at sea at Bells Beach. He argues that any change would disturb the value of this experience and undo these surfers' relationship with the place. He submits that this is a detrimental outcome.
2. I accept that this is a real experience. An example of this is in the Sunday Age newspaper, it has a regular small segment entitled My Place in which readers write short stories about a place which provides them with solace and tranquillity in their busy lives. I also accept that the disturbance of this enjoyment is an aspect of amenity and a relevant consideration.
3. However to be relevant, to be seriously considered in the application of this type, the belief must be founded upon a real outcome resulting in real adverse change to the place which confers this psychological benefit to those who experience it. Moreover, an assessment of this impact must be relatively robust. In any community there are different people with different interests, just as there is in this case. In a robust community it is often necessary for change to be accepted, in every case the aim should be to strike an appropriate balance.
4. In this case I think it is unlikely that there is going to be any significant loss of the spiritual value of this place as consequence of the proposal in this case. As Mr Schutt observed I think a more likely outcome is that within a short time most surfers will not even notice the change.

1. Ms Mahlab in particular was concerned about the risks associated with the management of the proposed group accommodation and the loss of amenity which might stem from the behaviour of guests in the accommodation unit. It is reasonable to raise this issue Ms Mahlab has a very lovely house in a very beautiful location and it is a place of retreat for her and a husband at weekends.
2. However, in assessing this issue one must try and understand whether or not there is in fact a significant risk. It is possible that for example a bunch of old surfies might rent these accommodation units for a reunion, reliving past glories overlooking the beach they loved in their youth. In their enthusiasm they may, for example, become excessively rowdy, playing loud music at an inappropriate time.
3. However I think that the risk of this occurring is low and any such events would be infrequent. A more likely outcome is that future guests will come to enjoy the peace and beauty of this place as do the existing residents of the area.
4. In general terms I think that small scale tourism ventures such as this are not the type of use that warrants complex management regime built into planning permits. Indeed, this complex raises no more risks than other homeowners in this locality making their own home available for rent by holidaymakers during summer. Moreover, I am reassured in this conclusion, that the tourist accommodation is unlikely to be a source of significant disturbance to the peace of neighbours, by the fact that there are quite significant distances between the proposed accommodation units and nearby residences.
5. However, I do propose to add a condition which imposes a general obligation on the owner to ensure that occupants are provided with appropriate information in relation to bushfire management issues.
6. More generally I am of the opinion that the proposed group accommodation is a very small case scale venture and therefore it will also have no significant impact on the amenity area as a consequence of the movement of people to and from the site. Indeed, the level of activity associated with this use pales into insignificance by comparison to the activity generated on daily basis as a consequence of the surfers and tourists who come to and fro from the Bells Beach Surfing Recreation Reserve.

1. The important issues in this application relate to the protection of environmental and landscape values and the importance of tourism. These are issues which appear regularly in a whole range of aspects of planning policy. The Rural Conservation Zone has objectives which similarly reflect this important preoccupation of the planning policy framework. For the purposes of these reasons I have only sought to quote relevant policy objectives to illustrate this abiding emphasis of the planning scheme.

To ensure development conserves, protects and seeks to enhance coastal biodiversity and ecological values.

To protect and enhance the landscape values of the rural precincts as described in Clause 21.06-2 above.

1. The proposal is contrary to one of the strategies for the achievement of Objective 1 of clause 21.06-3 which seeks to avoid development within the viewshed of Bells Beach Surfing Recreation Reserve. This strategy is undoubtedly a way to achieve objective 1. However, the conclusion I reached considering the evidence and inspection, as discussed above, Was that in the short term the impacts of the proposed buildings and associated works on the landscape and environmental values of the land are very minor and that in the longer term the maturation of the proposed landscape is likely to result in a positive outcome. Therefore, I am satisfied that Objective 1 has been achieved in this case, without the need to prohibit any development, as have the other essentially similar objectives.
2. At both the state and local level planning policy encourages the development of tourism related uses was the same time protecting environmental and other values, i.e.:

To encourage suitably located and designed coastal and marine tourism opportunities.

To enhance and expand the tourism industry, whilst protecting the environmental, landscape and cultural values of the Shire and the lifestyle of its residents.

1. The proposal is for a small tourism related venture. Nevertheless it is a suitably located and well-designed tourism venture in a coastal and rural setting. Indeed, the proposal provides tourist accommodation in a setting where I am told there is no other tourist related accommodation although I am not at all certain that we can be sure that none of the local homeowners from to time to time rent out their homes for short-term accommodation by tourists.
2. A strategy to achieve the objective found at clause 12 set out above is to seeks to ensure accommodation options and coastal experiences are provided and are accessible to all. This is an aspect of tourism related policy that was not much addressed by the parties.
3. The purpose of tourism accommodation is to provide accommodation to people who would not otherwise get an opportunity to live in that particular environment. I am sure that the people at Bells Beach who own residential properties value the joy to be had from waking on a summer's morning and enjoying the view of the kangaroos grazing on the McNaughtons' paddocks and the sun rising over Bass Strait. The provision of tourist accommodation means that people other than those who own properties in this location can if they wish enjoy this experience. This is an outcome supported by the policy framework.
4. Strategies under clause 21.04 - 2 include strategies in relation to agriculture based tourism. This term is undefined, although it is asserted that the proposed development is not an agricultural based tourism development, and is therefore not within the preferred location near Lorne. I am not at all convinced that this proposal which provides tourist accommodation on a working farm is not agriculture based tourism merely on the basis that it is not intended to provide the opportunity for guests to feed lambs or go on tractor rides. It seems to me that is it is that it is entirely similar to all sorts of cottages and the like available for tourists throughout rural Victoria
5. Finally the value of tourist related activities as a supplementary source of income to rural properties is recognised by planning policy. Indeed, it is a theme of Council's own Rural Strategy. The tourist accommodation proposed in this case will enhance the income this property earns for the McNaughton family. And while this effect is likely to be small it is nevertheless a positive outcome in respect of planning policy.

1. In summary, my conclusion in respect of this application for a modest facility for tourist accommodation and a dwelling is that:
   1. in the short term the impacts of the proposed buildings and associated works on the landscape and environmental values of the land are very minor and that in the longer term the maturation of the proposed landscape is likely to result in a positive outcome.
   2. the proposal will contribute to the economy of the area by providing tourist accommodation in the viewshed of the Bells Beach Surfing Recreation Reserve, an important tourist related destination, while carefully protecting the valued characteristics of the area;
   3. the proposal will contribute to improving the accessibility of this important tourist destination for all people;
   4. the proposal will provide a supplementary income which will help support the ongoing going use the land for farming purposes;

and therefore, the proposal will result in a small net community benefit.

1. It follows from the above that it is the Tribunal's decision that the decision of the responsible authority should be set aside and a permit granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

(a) the construction of buildings and the construction and carrying out of works;

(b) the use of the land for the purposes of group accommodation and dwelling;

1. Before the use and development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application prepared by James Deans and Associates Architects, dated September 2016 but modified to show:
   • (a) The relocation of the effluent fields outside of the drip line of the remnant forest vegetation in accordance with the Provincial Geotechnical letter dated 6 October 2016.
   • (b) The recommendations (if any) of an arborist report assessing the impact of the proposed building and works (including measures to meet defendable space requirements) on existing vegetation.
   • (c) The location of any new fencing.
   • (d) Deletion of any reference to 'eco lodge' and replacement with group accommodation.
2. Concurrent with the endorsement of the plans required by Condition 1:
   • (a) A landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must be generally in accordance with the landscape concept plan prepared by Mexted Rimmer Associates dated 17 April 2015 except that the plan must show:
     1. Compliance with 'Bushfire Management Plan' for both the group accommodation and the dwelling.
     2. The planting and protection of vegetation to provide a visual barrier between the proposal (dwelling and group accommodation) and the main vistas of the Bells Beach surfing recreation reserve.
     3. Only the use of plant species indigenous to the locality.

All species selected must be to the satisfaction of the responsible authority. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced to ensure that a visual barrier is maintained between the proposal (dwelling and group accommodation) and the vista of the Bells Beach surfing recreation reserve.

1. The proposed dwelling must comply with the requirements of

Clause 35.06-2. 2. The existing dwelling must not be used for a dwelling after 1 month of occupation of the proposed dwelling. 3. The group accommodation must not be used as a dwelling. 4. Before the use of the land for group accommodation commences a management plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. Once approved the plan will be endorsed and will form part of the permit. The plan must include measures in respect of the safety of guests of the group accommodation in a bushfire emergency and for the implementation of the requirements of this permit in respect of days with a Fire Danger Rating of Extreme and Code Red. The use of land must be managed in accordance with the endorsed plan to the satisfaction of the responsible authority.

1. The onsite wastewater management system must comply with the Land Capability Assessment undertaken by Provincial Geotechnical Pty Ltd dated 5 May 2015, report number C5158 for both the dwelling and group accommodation, unless with the written consent of the Responsible Authority.
2. All sewage and sullage waters shall be treated in accordance with the requirements of the Environment Protection Act 1970, the Public Health and Wellbeing Act 2008, the Code of Practice Onsite Wastewater Management (EPA 2013) and the responsible authority. All effluent shall be disposed of within the curtilage of the land and shall not drain directly or indirectly onto an adjoining property, street or any watercourse or drain. Sufficient land shall be kept aside and kept available for the purpose of effluent disposal. The exact type, standard and location are to be established with the responsible authority prior to foundations being laid or when the permit for the septic tank is issued.

1. Prior to the commencement of any development (including demolition and/or excavation):
   • (a) Fencing or other protective measures shall be erected adjacent to areas of native vegetation to be retained to the satisfaction of the responsible authority.
   • (b) The Responsible Authority must be advised, in writing, that the fencing or other protective measures have been installed as required.
2. During construction works:
   • (a) The areas within the fenced off tree protection zones must not be used for any other purpose, including storage or building materials or machinery, except as provided for in this permit.
   • (b) All contractors and subcontractors engaged to undertake construction work on the site must have included in their contract a reference to the retention of trees and these planning permit requirements for their protection.
3. To assist plant operators in identifying the trees to be felled, all trees approved for removal should be marked with a painted coloured "X" and shall be felled in a manner that avoids damaging surrounding vegetation stands or habitat.
4. Pruning of canopy trees to comply with CFA's conditions must be undertaken by a qualified arborist in accordance with Australian Standard - Pruning of Amenity Trees AS4373-1996.
5. The provision of services shall be undertaken in such a way as to ensure minimal disturbance of vegetation and the root zone of trees to be retained to the satisfaction of the responsible authority. Except where impractical, services shall not be located near vegetation and trenching shall be conducted outside the drip-line of any tree to be retained and where services must be provided within the drip-line boring shall be used.
6. Vegetation authorised by this permit to be removed must be disposed of without causing any damage to surrounding vegetation stands or habitat.
7. No environmental weeds as identified in "Environmental weeds: Invaders of the Surf Coast" booklet shall be planted on the site or allowed to invade the site and the site managed and maintained to exclude weeds.
8. Prior to the commencement of use and occupation of the dwelling or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced to ensure that a visual barrier is maintained between the proposal (dwelling and group accommodation) and the vista of the Bells Beach surfing recreation reserve.

1. Before the use starts, the area(s) set-aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
   • (a) Constructed;
   • (b) Properly formed to such levels that they can be used in accordance with the plans;
   • (c) Surfaced with an all-weather-seal coat, gravel or crushed rock;
   • (d) Drained;

Car spaces, access lanes and driveways must be kept available for these purposes at all times.

1. The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

1. To offset the removal of 0.228 hectares of native vegetation the permit holder must secure a native vegetation offset, in accordance with the Permitted clearing of native vegetation - Biodiversity assessment guidelines (DEPI 2013) and Native vegetation gain scoring manual (DEPI 2013) as specified below:
   • (a) A general offset of 0.024 general biodiversity equivalence units with the following attributes:
     1. Be located within the Corangamite Catchment Management Authority boundary or within the Surf Coast Shire municipal district
     2. Have a strategic biodiversity score of at least 0.453.
   • (b) A specific offset of 0.106 specific biodiversity equivalence units for 504088, Southern Xanthosia, Xanthosia tasmanica.
2. Before any native vegetation is removed, evidence that the required offset for the project has been secured must be provided to the satisfaction of the responsible authority. The offset evidence can be:
   • (a) A security agreement signed by both parties, to the required standard, for the offset site or sites, including a 10 year offset management plan and/or
   • (b) An allocated credit extract from the Native Vegetation Credit Register.

A copy of the offset evidence will be endorsed by the responsible authority and form part of this permit. Within 30 days of endorsement of the offset evidence by the responsible authority, a copy of the endorsed offset evidence must be provided to the Department of Environment, Land, Water and Planning.

1. In the event that a security agreement is entered into as per condition 2, the applicant must provide the annual offset site condition report to the responsible authority by the anniversary date of the execution of the offset security agreement, for a period of 10 consecutive years. After the tenth year, the landowner must provide a report at the reasonable request of a statutory authority.
2. Unless otherwise agreed in writing by the Country Fire Authority and the Department of Environment, Land, Water and Planning, offsets must not be located within the 150 metre BMO assessment area in accordance with the Planning for Bushfire Victoria, Guidelines for Meeting Victoria's Bushfire Planning Requirements (CFA 2012).
3. Before the vegetation removal starts, the boundaries of all vegetation to be removed and retained must be clearly marked on the ground with tape or temporary fencing to the satisfaction of the responsible authority.
4. Any pruning to the canopy of any tree to be retained must be undertaken by a qualified arborist in accordance with Australian Standard 4373-2007 - Pruning of Amenity Trees.
5. There must be no temporary or permanent storage of any materials, vehicles or equipment within areas of native vegetation identified to be retained. All storage sites must be restricted to existing cleared areas, and must not adversely impact upon native vegetation, including the root zones of existing trees. Such sites must not be located on or near erodible surfaces, surface water runoff areas or areas infested with weeds.
6. Before works start, the permit holder must advise all persons undertaking the vegetation removal or works on site of all relevant permit conditions and associated statutory requirements or approvals.

1. The bushfire mitigation measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the responsible authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed.

1. Prior to the commencement of the development of the dwelling, the Bushfire Management Plan for the dwelling at Attachment 3 of the Bushfire Management Statement/Dwelling prepared by Ecology and Heritage Partners and dated 29/10/2015 Version 4 must be endorsed by the responsible authority and will form part of the permit and must not be altered unless otherwise agreed in writing by the CFA and the Responsible Authority.

1. Prior to the commencement of the development of the group accommodation, the Bushfire Management Plan for the group accommodation prepared by Ecology and Heritage Partners and dated 29/10/2015 Version 4 must be endorsed by the responsible authority and will form part of the permit and must not be altered unless otherwise agreed in writing by the CFA and the Responsible Authority.

1. Prior to the commencement of the development of the dwelling, the Bushfire Emergency Plan provided to CFA dated 9 September 2015 Version 1, must be endorsed by the responsible authority and will form part of the permit. The Bush Fire Emergency Management Plan must be reviewed and updated as required, annually prior to the commencement of the fire season.

1. Prior to the commencement of the development of the group accommodation, the Bushfire Emergency Plan provided to CFA dated 9 September 2015 Version 2, must be endorsed by the responsible authority and will form part of the permit. The Bush Fire Emergency Management Plan must be reviewed and updated as required, annually prior to the commencement of the fire season.
2. The use of the group accommodation building approved under this permit must not operate after 10.00am on any day with a Fire Danger Rating of Extreme and Code Red.

Bushfire Management Plan & Bushfire Emergency Plan

1. The operation and management of the developments approved under this permit must at all times be carried out in accordance with the BUSHFIRE MANAGEMENT PLAN and BUSHFIRE EMERGENCY PLAN endorsed under this permit.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the date of this permit
   • (b) The development is not completed within four years of the date of this permit
   • (c) The use is not started within two years after the completion of the development
   • (d) The use is discontinued for a period of two years.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

Extract from the 1999 decision of the Tribunal SMA Projects v Port Phillip CC [1999] VCAT 1312, pages 7 to 9.

However, this raises the question of how to properly apply the local policy set out in clause 22.05-2 of the Planning Scheme. For the purposes of this policy a significant heritage place includes not only those places identified in the Schedule to the Overlay, but also those places identified in the Port Phillip Heritage Review 1998. In this later document this site is one of more than10,300 sites coloured red on the map associated with the Heritage Review and the Tribunal is advised that this denotes that it is a significant heritage place for the purposes of the policy. The local policy states:

Any Significant Heritage Place identified in the Port Phillip Heritage Review (1998) and included in the Heritage Overlay (Clause 43.01) should be conserved."

In the new VPP based planning system decisions in the exercise of discretion should be heavily influenced by the strategic and planning policy framework set out in the planning scheme. What then is to be done in this case in the face of this quite clearly stated policy that any significant heritage place should be conserved. Mr Wright set out a number of arguments or statements on what he regards as the correct approach to the application of policy in planning schemes, I hope I correctly paraphrase his submissions as follows:

• Policy can never be more than a guideline, it should not be applied as if it is a mandatory limitation on the exercise of discretion provided for by the scheme.
• Policy must be considered in a framework which includes all the policies relevant to a proposal in the scheme.
• This policy is an interim policy, and it is yet to be properly tested through the complete planning scheme amendment process.
• Policy should not be applied in a way which leads to a result which is inconsistent with a proper analysis of the evidence.

The planning reform process was intended to result in a system that was capable of producing good or preferred outcomes, policy should not constrain a decision maker into accepting something less than the best decision in each case.

Mr Wright in making these submissions relied on the decisions of the Tribunal in, Application for Review No 1998/45799 Alan Power Pty Ltd v City of Port Phillip, and Application for Review No 1998/90776, Casey Pty Ltd v City of Port Phillip.

I accept Mr Wright's submissions and the conclusions of the other divisions of the Tribunal in the two applications for review referred to above. In the new planning system planning decisions are meant to be heavily influenced by policy, and in particular the consistent application of policy can avoid the adverse effects of incremental change which can occur through an ad hoc site by site decision making process. Nevertheless, policy must be applied in an intelligent and flexible way having regard to the entire strategic and policy framework affecting the future use of land while at the same time avoiding unfortunate outcomes in individual permit applications. I consider that it would be an unfortunate outcome in this application for review if the conservation of this dwelling on this land prevented its proper redevelopment.

It is interesting to note that these matters were taken up in the "Final Report, New Format Planning Schemes, compiled by Helen Gibson, Senior Panel Member, Planning Panels Victoria". This report devotes quite some space on the issue of planning policy, the following extracts are relevant to the issue discussed above and gives some feel for the conclusions of the report:

The municipal strategic statement is intended to provide the broad brush strategic direction of planning schemes and justify the application of zones and overlays. Local policies are important in providing guidance to Councils and applicants in day to day decision making. With the broad discretions provided by zones, local policies provide a means of refinement to achieve identified objectives in the MSS to address key issues and to avoid inconsistency in decision-making. The critical issue will be to what extent they can legitimately constrain the exercise of discretion.

Panels believe that unless policies are carefully monitored, they have the potential to undermine the intent of the planning reform program by becoming de facto zone controls. The emphasis will shift from what is permitted in the VPP zone to what is permitted under the local policy. They will be used as a prescriptive measure rather than as a means to establish a performance base. There will be the temptation to rely on local policies as proscribing the exercise of discretion, in the interests of 'certainty', rather than always measuring a proposal against objectives. Alternatively, there will be the temptation to couch objectives themselves as prescriptions.

On the other hand, unless local policies are ascribed a legitimate role in guiding the exercise of discretion over use or development, there is little point in having them. Establishing the appropriate balance will be of critical importance during the initial stages of operating the new format planning schemes.

9.3.2 Constraints on the Exercise of Discretion

Possibly the greatest challenge in managing the new format planning schemes in the future will be to strike a suitable balance in the degree to which local policies can inhibit land uses otherwise allowed or subject to permit.

The panels do not consider that the problem is solved simply by insisting on use of the word "encourage" as opposed to "discourage". If a use is to be encouraged, it will be easy to argue that this means other uses are to be discouraged. At least, that is certainly the way in which many councils will apply the logic to achieve the outcomes they wish.

The panels see the solution in concentrating on the objectives of the policy, rather than on the words of the policy that "encourage" or "discourage" certain uses. If it is these provisions that are concentrated on, then local policies will act as de facto zones and the flexibility that the planning reforms have introduced by way of the new zones will be lost. Instead, it must constantly be asked, irrespective of whether it is stated that a use is "encouraged" or discouraged", what will the outcome be? Will it further the objectives of the policy or will it be contrary to them? If it will do neither (in other words, it is policy neutral), then it must be asked, why not allow the use? There may be other policy or amenity reasons why it should not be allowed. But if there are not, the intent of the reforms is to allow it to proceed, notwithstanding the policy may specifically provide that it is a use to be "discouraged"."

I think that it is quite appropriate for local policies to be expressed in direct language, as in this case, so that all users have a clear statement of the policies intend. Local policies should not merely be a restatement of the more generally expressed strategies or State level policies. However, there is a risk that State authorities will resist directly expressed local policies if responsible authorities fail to recognise the distinction between mandatory controls and the application of policy provisions.

[1] There is a compelling argument that the land enjoys existing use rights for use for the purpose of a dwelling, however, for the avoidance of doubt I have proceeded on the basis that a permit for use for the purpose dwelling is required.

[2] The number red stars on figure 1 indicate the approximate location of the viewpoints used for the photo montages prepared by Mr Schutt (View Location 1, Boundary with Mahlab property, View Location 2 - Southside Car Park, View Location 3 - Bells Car Park, View Location 4 - Winky Pop Car Park).

[3] Figure 3 locates the proposed group accommodation with a blue Mark, highlighted by a very much larger blue arrow and locates the location of the proposed dwelling with a red mark, also highlighted by a very much larger red arrow.

[4] In figure 4, the red arrows are north points (a bit confusing I know).

[5] See figure 2, these view locations are mapped in this figure.

[6] SMA Projects v Port Phillip CC [1999] VCAT 1312 at page 8.

[7] Mellington & Ors v Hepburn SC [2012] VCAT 651 and

Tsourounakis v Hepburn SC [2010] VCAT 723

[8] Rozen & Anor v Macedon Ranges Shire Council & Anor [2010] VSC 583, para 173

[9] Ultimately it is my conclusion that the proposal will result in a small net community benefit.

[10] Rozen & Anor v Macedon Ranges Shire Council & Anor [2010] VSC 583 para 174 & 175