Medium Neutral Citation [2003] VCAT 515

The applications to review Council's decision to grant a permit are disallowed and Council's decision to grant a permit affirmed. It is ordered that Permit No. 02/074 be issued subject to the conditions generally in accordance with those stated in the Notice of Decision to Grant a Permit issued on 30 August 2002 and amended as follows:

The staged development and use of the land for the purpose of a hotel complex, five (5) residential cottages and a workshop/storage building and associated parking, access, landscaping, rehabilitation, loading and unloading facilities, effluent treatment and disposal facilities and works generally in accordance with the endorsed plans; the use of the land for the sale and consumption of liquor pursuant to Clause 52.27 of the planning scheme and a reduction in the number of carparking spaces pursuant to Clause 52.06 of the Planning Scheme.

The development and use hereby permitted shall be undertaken generally in accordance with the following plans, which have been approved and endorsed to form part of the permit:

(a) Landscape Concept Plan - Sheet 1-4 dated 26 June 2002, as prepared by Context Conybeare Morrison Pty Ltd as amended by the plans prepared by Hansen Partnership (5 sheets dated 3 March 2003, 26/6/2002, 26/2/2002, 28/2/2003 and 28/2/2003 respectively).

(b) Architectural Drawings No. 0013.01-13.06 (six sheets) dated June 2002, as prepared by Glen Murcutt and Wendy Lewin Architects.

The above plans shall not be altered without the written approval of the Responsible Authority.

2. Unless otherwise approved by the Responsible Authority, the built form of the development hereby permitted, must be designed, sanctioned, controlled and supervised by the Principal Architect - Mr. Glen Murcutt and Ms. Wendy Lewin.

3. Before any development commences, further detailed Geotechnical assessment shall be undertaken in accordance with the third Stage - Slope Stability Assessment Report, as proposed in the letter from Douglas partners Pty ltd dated 18 June 29002 submitted with the permit application. The report must be to the satisfaction of the Responsible Authority. The findings of the endorsed report must be implemented to the satisfaction of the Responsible Authority.

(a) Prior to the commencement of the use and development hereby permitted, plans to the satisfaction of the Responsible Authority must be submitted to Council's Manager Assets Planning and Maintenance for approval and endorsement showing all roads, access lanes, driveways, carapaces and associated landscaping.

(b) When endorsed, the plans must not be amended except with the written consent of the Responsible Authority. The traffic and parking works must be undertaken in accordance with these plans to the satisfaction of the Responsible Authority. The preparation of the above plans must address the following matters:

i) All VicRoads and Council road construction requirements, which are to be set out in the Section 173 Agreement, to be prepared pursuant to Condition 20 of this permit.

ii) Subsoil investigations and pavement designs for all external/internal access roads/lanes, and intersections works, carparking areas and loading areas.

iii) Provision of construction plans for all civil works including cut and fill, carpark construction and underground drainage.

iv) All carparking shall be designed in accordance with the relevant Australian Standard AS 2890.1-1993 and Clause 52.06-3 of the Corangamite Planning Scheme 1999.

(c) Before the use commences, the areas set aside for parked vehicles and access lanes as shown on the endorse plans must be:

i) car space and associated access lanes to the satisfaction of the Repos bible Authyroi9ty.

ii) Parking areas Fully constructed to the satisfaction of the Responsible Authority

iii) Properly formed to such levels to enable the carpark and access lanes to be used in accordance with the plans.

iv) Surfaced with an all-weather surface (Compacted Princetown Sandstone Aggregate) to the satisfaction of the Responsible Authority.

v) Drained and thereafter maintained to the satisfaction of the Responsible Authority.

vi) Line-marked and/or delineated to indicate each and access lanes must be kept available for these purposes at all times.

(d) All parking of vehicles must be undertaken on-site, including the vehicles of the owner and/or staff.

(e) Provision shall be made for bus parking to the satisfaction of the Responsible Authority.

(f) The loading and unloading of goods from vehicles must only be carried out on the subject land to the satisfaction of the Responsible Authority.

(g) Sign(s) to the satisfaction of the Responsible Authority must be provided directing patrons and staff to the area(s) set aside for carparking. Such signs must be located and maintained to the satisfaction of the Responsible Authority. Each individual sign must not exceed 0.2 square metres in area.

5. OPERATING HOURS - GENERAL PREMISES LIQUOR LICENCE

The hours of operation for the use of the site's external facilities must be to the satisfaction of the Responsible Authority.

(a) The amenity of the area must not be detrimentally affected by the development and use, through:

i) The transport of materials, goods or commodities to or from the land.

ii) The appearance of any building, works or materials.

iii) The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, wastewater, waste products, grit or oil.

(b) External and internal lighjti8ng associated with the use of the land authorised by this permit must be suitably designed and baffled to reduce the impact of lighting on nearby dwellings and properties and to contain any light overspill within the curtilage of the site to the satisfaction of the Responsible Authority.

(c) Highly reflective glass shall not be permitted to be installed in any external windows that result in a visible impact upon neighbouring dwellings and/or land to the satisfaction of the Responsible Authority.

(d) All storage of goods and/or materials must be inside the buildings hereby permitted to the satisfaction of the Responsible Authority.

(e) This permit does not authorise the use of the land for the purpose of the landing or take off of helicopters.

(f) All external cladding and trim of the building hereby permitted (including roofs) must be constructed in colours and materials approved by the Responsible Authority. Prior to the commencement of the development. A schedule of colours and materials must be submitted to and approved by the Responsible Authority. For the purpose of this condition, the use of zincalume or similar reflective material shall not be permitted.

(g) No advertising sign(s) may be erected on the subject land or within local road reserves, except with the written consent of the Responsible Authority.

(h) This permit does not authorise the following activities in conjunction with the permitted use: horseriding, motorcycle/trail bike riding, 4-wheel drive vehicles, the recreational use of firearms or other activities that would create an unacceptable and detrimental effect on the Otway national park and surrounding area to the satisfaction of Parks Victoria and the Responsible Authority. These provisions do not prevent the conduct of such activities in conjunction with farming or agricultural activities on the balance of the land.

(i) Except with the further consent of the Responsible Authority, no domestic pets shall be permitted on the subject land in consultation with Parks Victoria.

(j) This permit does not authorise Gambling or Gaming activities at the hotel complex.

(k) This permit does not authorise the sale of liquor for consumption off the site.

(l) Except with the further approval of the Responsible Authority, motor bikes must not be hired to guests or visitors associated with the use authorised by this permit.

(a) Noise from the site must not exceed the limits require din the Environment Protection Authority - Interim Guidelines for Control of Noise from Industry in Country Victoria (EPA publication N3/89) to the satisfaction of the Responsible Authority.

(b) Prior to the commencement of the use and development, the permit holder must at its cost, and to the satisfaction of the Responsible Authority, enter into an agreement with a suitably qualified and experienced noise control consulting engineer, to have noise levels from typical activities on the land (Day, Evening and night). The subject of this permit, monitored during the first twelve (12) months of the operations. During this initial period, a minimum of two (2) noise tests shall be undertaken. Further testing shall be undertaken to the satisfaction of the Responsible Authority if complaints are received in regard to the impacts of noise resulting from the development hereby permitted. The agreement must provide for the consulting engineer to prepare reports and forward these to the Responsible Authority. Such reports will be made available for inspection free of charge.

(a) Prior to the commencement of any construction activities on the site, the permit holder shall prepare to the satisfaction of the Responsible Authority in consultation with other relevant authorities, a Construction Management Plan. Such plan shall address the following matters:

ii) Measures to reduce the transfer of site mud to roads

vii) Impacts on adjoining land owners with respect to any adverse effects upon existing businesses and/or farm production

x) Development of construction worker accommodation strategy

(b) The above plan must be submitted to and approved by the Responsible Authority in conjunction with other relevant authorities. When approved, the plan will be endorsed and will then form part of the permit. Three (3) copies must be provided.

(a) The use of the land authorised by this permit must be undertaken in accordance with an Environmental Management Plan (EMP) prepared to the satisfaction of the Responsible Authority in consultation with other relevant authorities.

(b) The Environmental Management Plan must include details of (but not be limited to) management proposals to minimise amenity and environmental impacts associated with the use and development of the site and must also set out objectives, performance and monitoring requirements for future protection and enhancement of the site. Such a plan shall address the following matters:

v) Water quality including ground water. The reuse disposal of treated wastewater must accord with the limits established in the EPA Works Approval and Licence. A methodology for testing and monitoring ground water must be included.

ix) Visual amenity (including details of how the lighting requirements of the conditions of this permit will be met).

xii) Fire safety and protection (including bushfires emanating from outside the site)

xv) Control of air traffic over the site, e.g. helicopters

xvi) On-going issues from Construction Management Plan.

(c) The above plan must be submitted to an approved by the Responsible Authority in conjunction with other relevant authorities. When approved, the plan will be endorsed and will then form part of the permit. Three (3) copies must be provided.

(d) The above plan shall be received by the Responsible Authority no later than six (6) months prior to the commencement of use hereby permitted.

10. STAGE 1 - ENVIRONMENTAL AUDIT AND REPORT

(a) At the completion of Stage 1 and prior to the commencement of stage 2 of the development hereby permitted, an Environmental Audit shall be undertaken to the satisfaction of the Responsible Authority. The purpose of this audit will be to ensure that all environmental objectives, performance measures and monitoring requirements/systems required by this permit are being implemented to the satisfaction of the Responsible Authority.

(b) Stage 2 of the development hereby permitted, shall not commence until the audit has been completed to the satisfaction of the Responsible Authority.

(a) Before the use and development starts, the permit holder must provide a Vegetation Management Plan aimed at incorporating the proposals recommended in the Landscape Concept Plan Report prepared by Context Conybeare Morrison Pty Ltd, Revised June 2002_, together with landscape Concept Plans LMP-001, LMP-002, LMP-003 and LMP-004 (4 sheets) as amended by the plans prepared by Hansen partnership (5 sheets dared 3 March 2003, 26/6/2002. 28/2/2003 and 28/2/2003 respectively) and the report prepared by Biosis Research dated 19 February 2003 to the satisfaction of the Responsible Authority. The Vegetation Management Plan must be prepared by a suitably qualified person in consultation with the Department of Sustainability and Environment, Parks Victoria and the Country Fire Authority._

(b) The plan shall also address the opportunities for off-site planting along and within the Parkers Access Road reserve and also within the road reserve of the Cape Volney Track (Government Roads) and the responsibility for planting and on-going maintenance to the satisfaction of the Responsible Authority.

(c) Revegetation of the stipulated areas specified in the Vegetation Management Plan must be undertaken in accordance with the specified time frames in that Plan to the Satisfaction of the Responsible Authority.

(a) A "Type C" intersection treatment must be provided on the Moonlight head-Great Ocean Road intersection, designed and constructed generally in accordance with AUSTROADS publications "Guide to Traffic Engineering Practice, Part 5 - Intersections at Grade) to the satisfaction of VicRoads and the Responsible Authority. The access shall incorporate two (2) 3.5 metres wide sealed through lanes and a 3.0 metre wide sealed left turn lane, and at the full cost to the applicant.

(b) The Moonlight Head Road's intersection with the Great Ocean Road must be upgraded to a standard specified by VicRoads and the Corangamite Shire and at the full cost to the applicant to the satisfaction of VicRoads and the Responsible Authority.

(c) Prior to the commencement work within the declared road, the developer must to the satisfaction of the Responsible Authority:

i) Provide a minimum payment to VicRoads of 1% of the estimated cost of the roadworks, to cover the cost of VicRoads surveillance.

ii) Provide a security deposit of either $10,000 or 10% of the estimated cost of roadworks, whichever is greater, to VicRoads.

iii) Provide evidence that the developer/developer's contractor has a public liability insurance for at least $10 m for the duration of the proposed works.

iv) Forward detailed design plans to VicRoads for approval

v) Prepare a specification for the works in accordance with relevant section(s) of th4e VicRoads Standard Specification for Roadworks.

vi) Any consultants and or contractor s engaged in design or construction processes are to be approved by VicRoads.

vii) Demonstrate that al work will be administered in accordance with quality assurance principles.

viii) Work site practices are to be in accordance with VicRoads' Roadworks Signing Code of Practice.

13. CONDITIONS REQUIRED BY THE DEPARTMENT FOR VICTORIAN COMMUNITIES (FORMER ABORIGINAL AFFAIRS VICTORIA)

(a) The permit holder shall adhere to the following recommendations as contained in the archaeological report prepared by Dr. Vincent Clarke, Moonlight Head Eco-Hotel Project -Cultural heritage investigation, June 2002 to the satisfaction of the Responsible Authority.

(b) Thew works as proposed may proceed without any restraints arising from cultural heritage issues, provided that care is taken to avoid damage to the two Aboriginal and one historical site, and to the areas of sensitivity for Aboriginal cultural heritage, identified in this report to the satisfaction of the Responsible Authority.

(c) If either Aboriginal isolated artefact site AAV7520-0135 or 0136 are to be damaged or destroyed, the developer will be required to obtain permission to so from the Framlingham Aboriginal Trust.

(d) If sites AAV7250-0135, 0136 or sensitive areas SA1, SA2 or SA3, as shown in Figure 4, are to be disturbed there should be subsurface testing of these areas to the satisfaction of the Responsible Authority. This should take the form of shovel probe testing to determine whether any sub-surface deposits exist in these areas and to establish the nature and extent of any such objects.

(e) Once site plans for the development have been finalised, the development must liaise with the Framlingham Aboriginal Trust to allow them to assess the likely impact of the development upon Aboriginal cultural heritage and to determine any mitigation measures that may be appropriate.

(f) If historical house site H7520-0004 is to be disturbed there should be further investigation of the site. This should include preparation of a detailed plan of the sit and test excavation to determine whether any significant archaeological deposits exist. A consent to disturb the site will be required from Heritage Victoria.

(g) Prior to the disturbance of any identified Aboriginal site, place or object, the permit holder is to seek and obtain written consent to disturb from the relevant local Aboriginal community, as nominated for the purposes of Part 11A of the (Commonwealth) Aboriginal and Torres Strait Islander heritage Protection Act 1984.

14. CONDITION REQUIRED BY LIQUOR LICENSING VICTORIA

(a) A General Purpose Liquor Licence is required to be obtained under the Liquor Control Reform Act 1998.

15. CONDITIONS REQUIRED BY THE DEPARTURE SUSTAINABILITY AND ENVIRONMENT (the DSE, FORMER DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENT)

a) All future geotechnical investigations must consider the following potential impact:

i) The impact of increasing soil moisture levels from wastewater disposal on slope stability.

ii) The impact of "Ha Ha" wall construction slope stability

(b) Irrigation of wastewater must not occur during periods of soil saturation to the satisfaction of the DSE.

(c) The applicant should conduct ongoing monitoring of the performance of wastewater management systems to the DSE.

(d) The applicant must reconfigure wastewater detention and disposal systems if performance monitoring show unacceptable risks to offsite water values to the satisfaction of the DSE.

16. CONDITIONS REQUIRED BY SOUTHERN RURAL WATER

(a) Removal of biosolids offsite to be undertaken by an accredited contractor to the satisfaction of the Responsible Authority and the Environmental Protection Authority.

(b) Design and maintenance of the wastewater treatment plant. Storage and irrigation areas by the contractor complying with the Relevant E.P.A. guidelines to the satisfaction of the Responsible Authority and the Environment Protection Authority.

(c) The groundwater bore to be constructed before the 21st May 2003, or a later date consented to by Southern Rural Water. The permit holder possesses a Bore Construction Licence valid for 13 ML per year, provided that the bore is constructed within twelve (12) months of the acceptance of the bore construction licence application

17. CONDITIONS REQUIRED BY THE ENVIRONMENT PROTECTION AUTHORITY

(a) The proponent must obtain a Works Approval from EPA before commencing works on the sewerage treatment system.

(Note: The statutory timeframe for a detailed assessment and decision on a Works Approval application is 4 months after the application has been accepted.)

(b) The proponent must develop a stormwater management plan that incorporate water sensitive urban design and best practice environmental management of stormwater to the satisfaction of the Responsible Authority.

18. CONDITIONS REQUIRED BY THE COUNTRY FIRE AUTHORITY

(a) The main hotel/lodge buildings and the detached cottages must be designed, constructed and maintained to the requirements of AS3959 for buildings in an area determined as being subject to medium ember attack (level 1 construction) to the satisfaction of the CFA.

(b) An emergency management plan must be prepared in accordance with AS3745 to the satisfaction of CFA with an aim to save lives and minimise personal and property damage. This plan must include consideration of wildfire management issues.

(c) The emergency management plan must be reviewed at least every twelve monthly to the satisfaction of CFA.

(d) All staff must be trained in the emergency procedures contained within the emergency management plan prior to the commencement of operation of the complex. A formal training program must be implemented for all new staff joining the complex and for refresher training of all staff to the satisfaction of the CFA.

(e) The applicant shall use the best endeavour to have the complex included within the Municipal Emergency Management Plan for the Corangamite Shire to the satisfaction of the Responsible Authority.

(f) Vegetation must be maintained to the following standard during the declared Fire Danger period to the satisfaction of the CFA:

i) For a distance of 30 metres around the main building and cottages:

* Grass must be no more than 100 mm in height; and

* Leaf litter must be no more than 10 mm deep; and

* There must be no elevated fuel on at least 50% of the area. Of the remaining 50%, the dry shrubs must be isolated in small clumps more than 10 metres from the buildings, and

* Trees must not overhang the roofline of the buildings.

ii) For an additional distance of 70 metres from the inner zone:

* Grass must be no more than 100 mm in height; and

* Leaf litter must be no more than 20 mm deep; and

* There must be no elevated fuel on at least 50% of the area; and

* Clumps of dry shrubs must be isolated from one another by least 10 m.

(g) With regard to the main complex buildings a minimum of 20,000 litres on-site static water supply must be provided and maintained solely for fire fighting purposes to the satisfaction of CFA. The swimming pool may be designated for use provided that it is accessible to fire trucks for drafting purposes. A hardstand area within four metres of the water supply, or adequate suction points fitted with CFA couplings must be provided to the satisfaction of the CFA.

(h) With regard to the detached cottages, a minimum of 10,000 litres of on-site static water supply must be provided and maintained solely for fire fighting purposes to the satisfaction of CFA. The water supply must be located within 60 metres of the outer edge of the cottages and a hardstand area within four metres of the water supply, or adequate suction points fitted with CFA couplings must be provided to the satisfaction of the CFA.

(i) Specifications for static water supply systems are as follows:

i) Water supply coupling must be 64 mm, 3 thread/25mm x 50mm nominal bore BSP, round male coupling to CFA specifications;

ii) All pipe work and valving between the water supply and the outlet must be no less than 50 mm nominal bore, and

iii) If less than 20 m from the building, each outlet must face away from the building on the opposite side or the water supply.

iv) All below-ground water pipelines must be installed to the following depths:

* All fixed above ground water pipelines and fittings, including water supply, must be constructed of non-rust and protected from the effects of heat.

(j) An external sprinkler system must be designed, installed and maintained to assist in coping with medium ember attach for the main complex buildings and for the detached cottages as identified in the submitted consultants reports to the satisfaction of the CFA. The design must be undertaken by an appropriate expert and submitted to CFA for comment prior to implementation.

(k) Adequate amounts of water as required by the sprinkler system design must be provided (additional to the previously required static water supplies) to ensure that the system will operate independently to the satisfaction of the CFA.

(l) The water supplies must be readily identifiable from the main entry to the site to the satisfaction of the CFA. Appropriate signage must be provided to direct emergency personnel to the water supplies to the satisfaction of the CFA.

(m) As recommended in the submitted consultants report a reticulated water system must be provided for use by CFA for wildfire fighting purposes to the satisfaction of the CFA. The system must be provided with a fuel-motorised pump unless the development has an electricity-generating plant independent to mains supply. The reticulated system must allow coverage of all the building by fire hoses. A system design must be submitted to CFA for approval prior to implementation.

(n) Access to the main building and detached cottages from the public road must be designed to allow emergency vehicles to enter to the satisfaction of the CFA. The minimum design requirements are as follows:

i) Driveway including gates, bridges and culverts must be designed constructed and maintained for a load limit of at least 15 tonnes and be of all weather construction, and

ii) Driveways including gates, bridges and culverts must provide a minimum trafficable width of 4 m width, and be clear of encroachments for 4 m vertically, and

iii) Curves in the driveways must have a minimum internal radius of 10 m, and

iv) The average grade must be no more than 1 in 7 (14.4%) with an absolute maximum grade of no more than 1 in 5 (20%) for no more than 50 m, and

v) Dips must be no more than 1 in 8 (12.5%) entry and exit angle.

vi) As the driveways are longer than 100 m, a turning area for fire fighting vehicles close to the buildings must also be provided by either:

* A turning circle with internal radius grater than 10 m; or

* A T or Y head with a minimum formed surface of each leg being 8 m in length measured from the centre point of the head and 4 m trafficable width; or

vii) As the length of the driveway is grater than 200 m, passing bays must also be provided. Passing bays must be 20 m long and must be provided every 200 m with a trafficable width of 6 m.

19. SECTION 173 AGREEMENT

(a) Prior to the commencement of the use and development, the permit holder must enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987. Such an agreement is to be registered on the title. The agreement must be to the satisfaction of the Responsible /authority, and all costs associated within its preparation and registration must be borne by the permit holder.

(b) The agreement must provide, to the satisfaction of the Responsible Authority:

i) Prior to the commencement of any works or buildings as hereby permitted, the permit holder shall enter into an agreement with the Responsible Authority for the lodgement of a performance guarantee to ensure the satisfaction completion of the hotel complex.

ii) Such guarantee shall be in a form of Bank Guarantee or other acceptable financial security that is satisfactory to the Responsible Authority. The amount of the performance guarantee shall not be less than 2.5% of the project sum for the construction of Stage 1. Before the commencement of Stage 2, a further performance guarantee shall be submitted to the value of 2.5% of the project sum. Each guarantee will be released when the occupancy permit(s) are issued respectively for stages 1 & 2 of the development.

iii) The permit holder shall fully construct and seal the intersection of Moonlight Head Road and the Great Ocean road in accordance with the required standards of VicRoads and the Corangamite Shire Council. Such works shall be undertaken at the full cost of the permit holder.

iv) The permit holder shall construct and seal the first 500 metres of the Moonlight head Road from the Great Ocean Road intersection to the Parkers Access Road intersection. This section of road shall be constructed to the following minimum standards unless otherwise agreed by the Responsible Authority:

* Minimum Height (vegetation) Clearance - 4.5 metres

v) The permit holder shall widen, realign and seal Parkers Access Road from its intersection with the Moonlight head Road to the entrance (roundabout) of the hotel complex. This section of road shall be constructed to the following minimum standards unless otherwise agreed by the Responsible Authority:

* Minimum Height (vegetation) Clearance - 4.5 metres

vi) The permit holder shall be responsible for the provision and installation of all statutory road signage and traffic management devices in accordance with endorsed plans.

vii) The permit holder will use its best endeavours to have the hotel complex included within the Corangamite Shire's - Municipal Emergency Management Plan. Such inclusion will formally establish the complex as a strategic location in the case of an emergency or disaster.

viii) The on-going implementation of the Construction Management Plan, Environmental Management Plan and Vegetation Management Plan in accordance with the requirements of this permit.

20. This permit will expire, in one of the following circumstances:

(a) The development and use is not started within two (2) years of the date of this permit.

(b) Stage 1 of the development is not completed within four (4) years of the date of this permit.

(c) Stage 2 of the development is not completed within eight (8) years of the date of this permit.

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

__________________________ _________________________

Mr. Andrew Mitchell appeared on behalf of himself and Mrs. Anthea Evelyn Mitchell

Ms. Michelle Quigley, QC, with William Gillis instructed by Mr. Neil Longmore, Solicitor, on behalf of the Otway Planning Association.

Helen Arundel and Julie Brazier for the Port Campbell Environment Group

Louise Hicks & Helen Rechter, Phillip Fox, Lawyers on behalf of the Shire of Corangamite. Ms. Hicks called Mr. Ray Phillips, Agribusiness Specialist, Mr. Peter Keage, General Manager Investment & Aviation, Tourism Victoria, and Mr. Terry Binder, Manager Economic Development & Tourism, Shire of Corangamite, to give evidence on agriculture, tourism and economic development.

Mr. H. McM. Wright, QC, instructed by P. Bisset, Minter Ellison, Lawyers. Mr. Wright QC called the following experts to give evidence, Mr. Glen Murcutt, Architect, Dr. Peter Bacon, water and wastewater, Mr. Michael Broise, geotechnical engineer, Mr. Andrew Hill, on Ecological (flora and fauna) assessment, Mr. Russell Fairlie, traffic engineering, Stephen Schutt, Landscape Architect, Mr. Dennis Williamson, on Visual Assessment, Mr. Brian Haratsis, Economist Planner, and Ms. Roz Hansen, Town Planner, to give evidence in their respective fields.

1. This is an Application under Section 82 of the Planning and Environment Act 1987 to review a decision made by the Shire of Corangamite ("the Council") to grant a permit in application no. 02/074 for a two stage development of a three level hotel complex comprising 75 rooms, 5 cottages, ancillary car parking (126 spaces), ancillary facilities and works, landscaping, and a General Purpose Liquor Licence at Parkers Access Road, Moonlight Head.

2. For the assistance of the hearing, Mr. Wright tabled sets of A3 plans for all parties and called Ms. Wendy Lewin, architect practising with Mr. Murcutt, to describe the proposal briefly.

3. The review site is known as the `Moonlight Head Farm' located just south of Moonlight Head Road approximately 250 metres from the Great Ocean Road. The site is approximately 12 kilometres from Lavers Hill to the north east and similar distance from the well known `Twelve Apostles" to the west via Princetown.

4. It is a 42 hectare site used as a farm for about 80 years. Parts of this property were cleared and converted to pasture for this farm in the 1930's. The land is somewhat equivalent in the ratio of pasture and bush. It is currently used as part of a grazing and dairy farm by a nearby dairy farmer.

5. The review site is irregular in shape with the northern part of the lot (25 hectares) as mentioned before, converted to pasture with the remainder of the land covered by vegetation. A farm house, the `Blue House' is located at the south-west corner of the site.

6. The topography of the site is undulating with some steep slopes, vegetated gullies with streams that run north-south into a watercourse and eventually into the Otway National Park. On the highest point at the northern end of the site, one can obtain panoramic views from the east to the west, and of the coast on a clear day including the Otway lighthouse.

7. In terms of infrastructure access to the site is via Parkers Access Road, a gravel road. This road is off Moonlight Head Road which is off The Great Ocean Road. There is no reticulated water or sewerage service. Electricity supply is a single-phase power supply.

8. In terms of landform, we adopt the description of the Context Conybeare Morrison Pty Ltd's report. That:

"The site is located along the eastern slope of a ridgeline within a landscape of undulating hills forming the western edge of the Otway Range. The ridgeline below which the site is located forms part of a prominent ridgeline running north-east to south-west and meeting the Southern ocean at Moonlight Head, approximately 3 kilometres south-west of the site. To the east, the topography increases in elevation as the main Otway Range, whilst to the west the topography decreases in elevation beyond the Gellibrand River."

9. The character of the area is one of rural and forest outlook. To the south is extensive native forest which adjoins the Otway National Park. This National Park follows the coastline from Apollo Bay in the east to Princetown, and is an integral part of a network of national and State parks significant as flora and fauna habitats, spectacular forest and coastal sceneries, and recreational and ecological resources.

10. The immediately surrounding land is predominantly used for agriculture (grazing) with many of the gullies retained for native vegetation. However, immediately to the north-west on the opposite side of Parkers Access Road is a smaller land holding used as a tourist accommodation facility called `Moonlight Retreat'. This facility also relies on Parkers Access Road for access.

11. In a wider context, the site is located along the south-west coastline of Victoria which is a popular tourist area of scenic value and natural beauty. The property is 65 kilometres west of Apollo Bay and approximately 3 hours drive from Melbourne. It is in close proximity to The Great Ocean Road which is renowned for its scenic value and is a significant and internationally known tourist destination. The Great Ocean Road runs along the southwestern coastline of Victoria and through the Otway Ranges, providing spectacular coastal and forest sceneries.

12. The application is to develop part of the land (northern) for a hotel and ancillary facilities. It comprises a two and three storey building along the northern slope of the land generally between the 200 and 202metre contours. This is the main building of the hotel which includes:

* An `amenity and facility' wing for guests and the running of the hotel, comprising of an indoor swimming pool, a gymnasium, restaurant seating 90 and a bar seating 40, dining terrace, meeting rooms, foyer, and supporting rooms such as various store rooms, administration, staff rooms, kitchen, fire refuge, plants and equipment rooms.

13. The design of this building is linear, approximately 200 metres in length from end to end, 10 metres in depth for the accommodation wing, and of varying depth at the amenity and facility wing. The building `hugs' the 200 and 202 contour lines. It has a bend between the amenity and facility wing with the accommodation wing. A third of the length along the accommodation wing is another bend. These bends enable the building to follow the curve of the contours. The distinct features of the design of this building are the `finger' configuration of the entrance area and the 5 cottages, and the design principle of working with the particular environment, aspects, and conditions of this site. It is about a low impact development which would not require reticulated water and sewerage services, or air-conditioning, but making use of natural light, relying on on-site water supply and managing waste water on site. It has been described as an eco-hotel. For example, there is the extensive use of roof skylights to capture natural light, and vertical ventilators to ventilate rooms without reliance on air-conditioning. Water storage tanks beneath the building capture rain water, and the employment of fins or blades between rooms reduce glare, achieve light reflection and at the same time provide a framed view for the guest rooms.

14. The height of this building is three levels. On the south-east elevation, the maximum building height to the underside of the eaves is 9.0 metres which the building presents as a three level. Due to the fall of land away from Parkers Access Road, the building presents essentially a single storey appearance to this road.

15. This building is typically setback 10 metres to 25 metres from Parkers Access Road.

16. Apart from this building, there is a separate compound at the western end of the site where the topography is flatter. Near the existing farm house, the proposal is also for five single storey cottages. Two are four bedrooms and the other three bedrooms. Each cottage is self-contained and is provided with two parking spaces. Access to these five cottages is by means of an internal road within the site.

17. Car parking is provided northwest of these cottages. A total number of 102 spaces are provided, including two car spaces for each cottage and two spaces for 12-22 seater buses. Informal parking is possible between the car park and the cottages. A valet parking system is to operate where guest vehicles are taken from the main hotel building to the parking area. Closer to the Parkers Access Road are the workshops of the hotel and waste water treatment areas.

18. External materials for the buildings are natural concrete, timber, anodised window frames and zinc roofing.

19. The linear form of the main hotel building and the siting of the cottages are such that their construction would minimise the amount of site and earth work.

20. As far as the operation of the hotel is concerned, it is aimed at the higher end of the market, with a level of services and facilities at the moment not available in the region. The level of service has been mooted to be 5 or 6 stars. It proposes to employ 75 staff.

21. A significant feature of the development is that there would be no loss of native trees. The submitted landscaping plans show extensive screen planting along Parkers Access Road, a continuation of the Eucalypt forest concept through the car park, a wetland planting regime for the waste water detention ponds, aggregate pavement for internal access roads, and fencing of the existing bushland along gullies to allow natural revegetation.

22. Construction methods for the main hotel building are to be by means of

pre-fabricating components off-site which would then be transported on-site. This would minimise on-site disturbances, reduce construction time, the number of tradesmen and workmen on site, and reduce the amount of traffic on the local network.

23. As for the provision of infrastructure, potable water will be supplied by collection of rainwater and from bore water sourced on site. A licence has been obtained to extract water exceeding the expected required amount. Waste water will be treated on site and recycled for toilet, irrigation, wash down and gardening. Electricity will be up-graded from the existing single phase to a three-phase electricity supply.

Planning Controls and Relevant Planning Policies

24. The site is within the Environmental Rural Zone of the Corangamite Planning Scheme. Pursuant to Clause 35.01-3 of the Scheme, a hotel is a Section 2 (discretionary) use, that is, a planning permit is required for the use. A hotel is defined in the planning scheme as:

"Land used to sell liquor for consumption on and off the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling."

25. A hotel is in the `food and premises' nest. As such, it must not have a direct access to a rural freeway.

26. In addition, this clause requires a permit for building which is within 20 metres of any other road that is not a Category Road 1 and 2), 5 metres from other boundaries, 100 metres from a dwelling not in the same ownership and 100 metres from a waterway.

27. The site is affected by the Vegetation Protection Overlay - Schedule 1.

28. A permit is required for the removal, destruction or lopping of any vegetation specified in a schedule. Decision guidelines that must be considered by the Responsible Authority, as appropriate, include the statement of the nature and significance of the vegetation to be protected and the vegetation protection objective. In this case, Schedule 1 refers to significant and remnant vegetation.

29. Other clauses that affect the site are Clause 52.06 Car Parking, Clause 52.17 Native Vegetation and Clause 52.27 Licensed Premises.

30. Applicable policies from the State Planning Policy Framework are:

* Clause 15.01 Protection of catchments, waterways and ground water;

* Clause 15.09 Conservation of native flora and fauna

* Clause 18.02 Car parking and public transport access to development

31. Applicable policies from the Local Planning Policy Framework are:

* Clause 21.03 MSS - Vision and Strategic Framework Plan

32. In greater details, Clause 21.03 identified two major strategic issues, one of which is the need for the protection of coastal and landscape environment along the Great Ocean Road, volcanic landscapes and lakes areas of the central and northern areas of the Shire, and substantial heritage assets of Camperdown, Terang and Cobden.

33. Clause 21.04-2 Environment under the heading of Heritage and Landscape has the following objectives:

* "To preserve heritage buildings, places, significance landscapes and Koori sites

* Protect the scenic values of coastal areas, particularly along the Great Ocean Road.

* Prevent linear development along the Great Ocean Road

* To preserve and protect important landscape features.

* "Environmental Rural Zone with a 60 hectare minimum lot size adjacent to the Great Ocean Road

* Heritage overlay to all heritage buildings and places

* Significant Landscape Overlays to areas of high visual sensitivity along the Great Ocean Road

* Clause 22.03-4 Tourist Use and Development applies to use and development for tourist purposes or which may affect natural built and cultural resources of the Shire which contribute to its tourism appeal.

35. The application for the development was lodged on 20 June 2002. Public notice of the application was given by means of individual notices and three local papers (Warnambool Standard, Cobden Times and Colac Herald) in July 2002. A total of 19 objections was received. An on-site meeting was held on 21 August 2002, attended by about 30 people, including representatives from the permit applicant, Council and other interested parties.

36. Pursuant to Section 55 of the _Planning and Environment Act 198_7, the application was referred to:

* Aboriginal Affairs Victoria administered by the Department of Natural Resources and Environment

* Council's own Environmental Health Officer and Manager Assets Planning.

38. No objection was received from any of the authorities, with some requiring permit conditions.

39. Council (Regulatory Services Committee meeting) considered the application on 27 August 2002 and resolved to issue a Notice of Decision to Grant a Permit subject to conditions as set out in its NOD. This Notice of Decision to Grant a Permit was issued on 30 August 2002.

40. Applications for review were received from Mr. And Mrs. Mitchell on 17 September, 2002, the Otway Planning Association Inc. on 20 September 2002 (this application included Peter Turnbull and Susan Ball), Brian Conway on 21 September, 2002, and Helen Arundel for the Port Campbell Environment Group also on 21 September, 2002.

41. At the review hearing, parties made written and verbal submissions. A number of plans, photographs and other documents were tendered to the Tribunal. They are retained on file. Witnesses were made available for cross-examination.

42. In the presence of the parties, the Tribunal inspected the site on the second day of the Hearing. With the consent of the parties, the Tribunal inspected the site and surrounding areas again on the 26 March 2003, including the Volney Track and those locations (marked as 1, 2, 3 and 4 on a map) requested by the Otway Planning Association along this track. For the second inspection, we are indebted to Parks Victoria (Apollo Bay) who provided a Ranger to assist our inspection of the Volney Track. He was invaluable in providing logistic and navigational support, as signage for the Volney Track is almost non-existent, and for the fact that there is another somewhat confusing parallel track in private properties.

43. On the fifth day of hearing (17 March 2003), Ms. Quigley SC on behalf of the Otway Planning Association made an application to disqualify Senior Member Gould from the Tribunal on the ground of apprehended bias. She cited the Ebner v The Official Trustee [2000] HCA 63; (2000) 205 CLR 337 in bankruptcy case and the ACT Nominees v Morrison case that a fair minded observer would conclude that Mr. Gould's conduct of the hearing as a whole would lead to the belief that the matter was not dealt with fairly. Indication of such conduct included the banter between himself and Mr. Wright, exchanges, resistance to alter the order of cross-examination, and resistance to an inspection of the site from Volney Track, a sense of familiarity with Mr. Wright, and his comment about large buildings (the unsuccessful Grollo Tower in the Docklands). Although one cannot take exception to an individual incident, she submitted that it is a course of conduct that may cause a fair-minded person to feel apprehensive.

44. Having heard submissions from other parties regarding this application, the Tribunal concluded that Senior Member should not stand down briefly for the following reasons.

45. A fair-minded observer would have to have reasonable acquaintance with the procedure of the Tribunal. Banter is a common practice to liven proceedings with quips, particularly for a long hearing such as the present case (set down for 7 days). Ms Hicks noted that the banter was "not more than normal". As for the order of proceeding, it has been the practice of the Tribunal, (and its predecessors), for some 30 years, to have the order of submissions and cross-examination from Council first, objectors, and then from the permit applicant. There was no objection at the time to this order. In addition, Section 98 of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal:-

(b) is not bound by ... procedures applicable to courts of record ...;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality ... (as) a proper consideration of the matters before it permit.

46. As for not inspecting the site from Volney Track on the first inspection day, Mr. Longmore conceded that it was by then too late in the evening (7.00pm) to go down the track. Volney Track was later traversed for virtually its full length following the hearing as noted below.

47. As directed in Section 98(1) above the Tribunal conducts its proceedings informally. The layout of hearings, without a bench or formal bar table, means that the Tribunal members are only separated from the parties by a metre or so. Adding to this informality is the fact that witnesses are not sworn, and parties address the Tribunal seated. There is no bench clerk to convey or even number exhibits for the Tribunal members so that the Tribunal members have to ask the parties to pass exhibits along and even, in some cases, to retrieve them themselves. All this of course is well known to Ms Quigley who would, no doubt, have conveyed these matters to Mr Longmore her instructing Solicitor.

48. The Tribunal found the application cannot be made out individually or collectively. The hearing of the review proceeded.

49. Having heard all the submissions and evidence presented, and having inspected the site and locality, we find the proposed development acceptable in terms of applicable planning controls and policies, as a response to the characteristics of the site, impact on land and impact on the area. We do not accept the arguments put forward by review applicants or their interpretation of the planning scheme for this development. We are satisfied that the multi-disciplinary approach to the design of the development has resulted in a development which has dealt with the capability. It is sensitive to the environment, and has managed to resolve most of the issues. We set out findings to the key issues.

50. We have already outlined the applicable planning controls and policies. The site is in the Environmental Rural Zone and covered by a Vegetation Protection Overlay. Various planning policies both in the state Planning Policy framework and Local Planning Policy Framework apply. The crux of the matter, as we see it, is whether against these controls and policies, the proposed development is reasonable and satisfies the provisions of the planning scheme. Not surprisingly, there are marked differences in the interpretation of these provisions.

51. As noted above (para 49) review applicants had a general view that the size of the building is excessive for the zone, and that it would dominate the area and detrimental to the character of the area. Ms. Brazier referred to the intent of the zone which is to protect the landscape features of the region. Ms. Quigley SC pointed out that the number of guests that can be accommodated on the site is larger than the total population of Lavers Hill or Princetown, and that the development, due to its size, is out of character with the area. They attached considerable emphasis on the landscape quality of the area, and their view of the impact of the development on this landscape quality.

52. In terms of the zoning of the land, the site falls under the Environmental Rural Zone. The Purpose of this zone is:

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

* To give effect to the environmental outcome specified in the schedule to this zone.

* To conserve and permanently maintain flora and fauna species, soil and water quality and areas of historic, archaeological and scientific interest and areas of natural scenic beauty or importance so that the viability of natural eco-systems and the natural and historic environment is enhanced.

* To encourage development and the use of the land which is in accordance with sound management and land capability practices, and which takes into account the environmental sensitivity and the bio-diversity of the locality.

* To ensure that subdivision promotes effective land management practices and infrastructure provision."

53. The outcome for development under the Environmental Rural Zone is quite clear. The schedule to the zone states:

"Maintain the environmental values of the Shire's coastal areas, in particular the landscape values, vegetation, fauna habitat and protect ecological systems."

54. This clause sets out a schedule of decision guidelines which cover the areas of General, rural, environmental, and design and siting issues.

55. The general issue of the decision guidelines refer to (as relevant) the capability of the land to accommodate the development and how the development relates to the management of natural resources. Rural issues refer to whether the site is suitable for the development and the compatibility with adjoining and nearby land uses, whether the use would adversely affect surrounding land uses, a land management plan, and impact on infrastructure. Environmental issues refer to the impact on the natural physical features and resources, particularly on soil and water quality and emission of noise, dust and odour, impact on flora and fauna and landscape features, protection and enhancement of the natural environment and character of area, including the retention on vegetation and fauna habitat, and impact on the character and appearance of the area or features of architectural or other significance or of natural beauty or importance. Design and siting issues refer to the design, appearance, siting of the development and the impact on infrastructure.

56. We have considered the proposal against these guidelines and we are satisfied that the design of the development, the siting of the buildings, including the non-reliance on reticulated water and sewerage, represent a sensitive and site responsive approach, based on environmental sustainable principles. It is therefore consistent with the decision guidelines of this zone. The emphasis of the zone on the protection of native vegetation is achieved by zero loss of native vegetation and a net gain of 4.5 hectares. Further, there is the protection of the natural bush by the fencing of gullies to prevent livestock from damaging this vegetation and allow natural revegetation.

57. The review site is affected by a Vegetation Protection Overlay - Schedule 1. The objectives of this overlay are:

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

* To ensure that development minimises loss of vegetation.

* To preserve existing trees and other vegetation.

* To recognise vegetation protection areas as locations of special significance, natural beauty, interest and importance.

* To maintain and enhance habitat and habitat corridors for indigenous fauna.

* To encourage regeneration of native vegetation."

58. As far as protection of native vegetation is concerned, we are satisfied that this has been achieved by no removal of native vegetation, fencing of gullies to allow natural revegetation and an increase of 4.5 hectares of native vegetation.

59. We note that the site is not affected by a Significant Landscape overlay. It is an overlay specifically for the identification of significant landscapes and the protection of these significant landscapes. This overlay would afford a higher level of control for significant landscape. The land has not been identified, as we are aware, to be of significant landscape value. This is not to devalue the contribution of the land to the general rural and forest character of the area. Nonetheless, by not having this overlay on the land, it indicates to us protection of vegetation (as the site is affected by vegetation protection overlay) rather than protection of significant landscape character is the primary aim.

60. As noted above review applicants had a general view that the size of the building is excessive for the zone, and that it would dominate the area and detrimental to the character of the area. Ms. Brazier referred to the intent of the zone as to protect the landscape features of the region. Ms. Quigley QC pointed out that the number of guests that can be accommodated on the site is larger than the total population of Lavers Hill or Princetown, and that the development due to its size is out of character with the area. Mr. Mitchell compared the development as creating a township at Moonlight Head which can accommodate the residents of Lavers Hill, Beech Forest and Princetown.

61. There is no question that the main hotel building is a large or long building compared to those currently existing in the surrounding area. Whether this building is acceptable depends on how it responds to the topography, the environment, and whether it diminishes or detracts from the landscape quality of the area, as distinct from preservation of the landscape quality of the area, should the land be affected by the Significant Landscape overlay. To us, it needs to be a building that respects the landscape through siting, scale and massing, skilful use of materials, and complementary landscaping. The visibility of the building is not necessarily a negative thing. As Mr. Murcutt indicated during cross-examination, there is no intention of concealing the building. The hotel complex, despite its length and size is sited on a part of the land that has been degraded. The majority of the site is still untouched, bearing in mind that the site is 42 hectares in area. The overall feel is a sensitive and well designed building in a wilderness setting. The open farmland and forest character of the land is retained. As to the number of people that can be accommodated on site compared to those in nearby townships, we do not see it as creating another urban settlement. Guests at the hotel are not permanent residents. They do not have the same needs of urban services of such a settlement, such as reticulated water and sewerage services, schools, or community facilities.

62. Another issue is whether the proposed use is compatible with the uses of adjoining land. The predominant land use of the area is farming (animal husbandry) and tourist accommodation. In terms of farming activity of the area, the balance of the site will continue to operate as a farm. The farming community surrounding the site has raised no issue with the proposal. As for tourist accommodation in the area, particularly Mr. & Mrs. Mitchell's establishment, the proposed use is similar except for the difference in scale. More of the impact of amenity on the Mitchell's establishment later.

63. Review applicants also urged us to consider the ridgeline policies in the Otway-Colac Planning Scheme, due to the proximity of the site to that Shire and the fact that the site shares common features with areas on that side of the Shire. We would say that we are not at liberty to consider planning controls outside the ambit of the Corangamite Planning Scheme. We note that the application was referred to the Shire of Otway-Colac and that Shire has made no objection or submissions regarding the development.

64. In terms of planning policies, the main contention is whether the development is consistent with the State Planning Policy for coastal areas (Clause 15.08). Despite debate whether there were absolute accuracies on information provided or whether the proposed systems are fail safe, the other issues such as flora & fauna protection, wildfire management, and energy efficiency are accepted to be dealt with by a proposal which does not involve removal of native vegetation, an energy conscious design and a submitted wildfire management proposal.

65. As for the area of coastal planning, review applicants' placed considerable weight on a number of strategies and action plans not referenced in the Planning Scheme.

66. Clause 15.08-3 specifically relates to relevance of such strategies:

"Planning authorities must have regard to any Victorian Coastal Strategy endorsed by the Minister for Conservation and Land Management, any relevant coastal action plan, any relevant State environment protection policy and any relevant approved Land Conservation Council recommendation."

67. Planning authority is distinct from Responsible Authority. The primary intent of this clause is that a planning authority, in preparing a planning scheme or planning scheme amendment, must have regard to these strategies. This clause does not specify that a responsible authority is compelled to consider these action plans or policies. The responsible authority therefore is not bound to consider these action plans and strategies. However, despite the lack of statutory status of these strategies, we find them useful tools to assist us in our deliberation of this review, as there is much merit in these documents.

68. It was the submission of the Port Campbell Environment Group and the Otway Planning Association that the development fails to meet the objectives of the Victorian Coastal Strategy. To assist in our consideration of the application, we have read the Victorian Coastal Strategy 2002, Design and Siting Guidelines, Landscape Setting Types, and the South Western Coastal Action Plans provided to us. We are of the view that these strategies and action plans primarily relate to development either immediate to coastal areas or close to the coast. For the fact that the site is located over 1.5 kilometres inland means its relationship with the coast is visual rather than immediate. The only direct reference we can find regarding the subject site from these documents is the document Landscape Setting Types for the Victorian Coast May 1998, specifically No. 6 Moonlight Head from Princetown to Glenaire. The description of this Landscape Type is that it is "an area characterised by some of the highest coastal cliffs in Australia and general visual character of ocean oriented wilderness. These contrast with the Twelve Apostles in that they are higher, of non marine sediments and supporting visually absorptive medium scrub and woodland at their peaks. There are some dunes, in particular near Princetown, where there is little development with only the occasional dwelling and access track. The cliffs that abut the Southern ocean in this area attain a height in excess of 100 metres and the soft limestone is continuously being eroded by the ocean and strong southerly winds. The cliffs at the Gable, near Moonlight head are approximately 123 metres above sea level, possibly the highest sea cliffs in Australia. Critical viewing points are mainly along roads car parks and beaches."

69. Special considerations for this Type are: minimal disruption in the visually exposed cliff edge areas and the inland ridgeline is a major determinant to this wilderness area. Landwards of it are areas said to be clearly of development potential. It also states that this area is of outstanding scenic quality and requires special landscape protection to ensure development does not impact on landscape values.

70. This document did not go so far as to indicate the extent of the special landscape protection zone. Further, since the preparation of this document (dated May 1998), there has been no attempt to incorporate such landscape control in any statutory document or formal consideration in the planning process.

71. The next document is the South West Victorian Regional Action Plan 2002. Page 9 of this document shows the extent of the study area, which includes some distance beyond the coastline, including the review site. Figure 4 of this document (P. 23) is the Strategic Directions Plan. Specifically for the Moonlight Head area, it reads, "recognise and reinforce the implementation of the Otway National Park Management Plan". We turn to the Otway National Park Management Plan June 1996. Our reading of this Plan is that it affects the National Park only, and therefore is of no assistance to us regarding this proposal.

72. The Siting and Design Guidelines for Structures on the Victorian Coast May 1998, refers to buildings immediately on or near the coast. They are not of much relevance to the development before us.

73. Apart from our own reading of these strategies, there are a number of agencies which are either directly responsible for or are in a capacity to have a statutory input into the design of development affected by these strategies: Council as responsible Authority, the former Department of Natural Resources and Environment (now Department of Sustainability and Environment), and the Western Coastal Board. None of these bodies has opposed the proposal.

74. The Western Coastal Board (a regional coastal board set up pursuant to Sec. 12 of the Coastal Management Act 1995) has the following relevant functions:

* "To develop Coastal Action Plans for land within the region

* to provide advice to the Council on coastal development in the region and any other matters referred to it by the Council

* to facilitate the implementation in the region of the Victorian Coastal strategy, Coastal Action Plans and approved coastal guidelines for the region."

75. The Western Coastal Board's recommendations to Council were:

"Consider the wider strategic issue of this development in relation to the Victorian Coastal Strategy specifically as follows:

1. Protection of significant environmental features - the Landscape Setting Types for the Victoria Coast (1998) identifies the general visual character of the area as "ocean oriented wilderness". A principle of the Victorian Coastal Strategy is that parts of the coast will remain largely inaccessible to protect and retain areas with a sense of remoteness.

2. Appropriate coastal development - A primary focus of the strategy is to protect the values of the coastal environment whilst providing for appropriate sustainable use. To this end, development pressure and infrastructure will be directed away from sensitive areas and management within defined existing settlements (activity nodes) and recreational nodes. Suitable coastal development can range from small scale infrastructure to larger scale developments however it is noted in the strategy that in relatively pristine areas and important vistas along the coast no development will be appropriate.

3. Precedence - Notwithstanding the intensive endeavours this development has shown in achieving best practice in regards to design and siting, the location of a large-scale tourist development on private land within and adjacent to the critical views of the coastal environment will "open the door" to similar styles of development being developed outside existing settlements and recreational nodes."

"The Board commends the project proponents for their thorough consideration of a wide range of issues in regards to the siting and design of the complex. The efforts towards demonstrating "no net loss" of native vegetation are applauded. Management considerations of wildfire, waste management, traffic, access, heritage and landscape treatments all indicate a development that is making every effort to promote a responsible approach to tourism development in the region."

77. We interpret the Board as not objecting to the proposal, because it commends the project as a responsible approach to tourism, that the development is one that has made every effort to promote a responsible approach to tourism development in the region whilst reiterating the principles contained in the considerations of the Landscape Setting Types, and their concern of precedence.

78. In terms of tourism policies in the state and local planning frameworks, we have the evidence of Mr. Keage and Mr. T. Binder that the proposal would achieve the tourism outcomes of Tourism Victoria and Council, and that it would fill the gap of a facility lacking in the area.

"To encourage tourism development to maximise the employment and long-term economic, social and cultural benefits of developing the State as a competitive domestic and international tourist destination."

80. Clause 17.04-2 requires that "responsible authorities should use the Planning and Building Tourism from Concept to Reality: Guidelines for planning Developing Tourism Projects in Victoria" in considering applications for tourism development and having regard to any relevant regional tourism development strategy. Mr. Keage, on behalf of Tourism Victoria expressed the view that the proposed development:

* Is consistent with relevant State and regional tourism policies and strategic plans, including State-wide tourism industry launched in 1993, 1997 and 2002.

* Would respond to a market gap in quality regional hotel accommodation that is fuelled by an increasing demand for this class of accommodation in the great Ocean Road region.

* Would attract a high yield market that would result in a substantial boost in regional visitor expenditure and yield by attracting new market segments and convert day trip visitation to overnight stays.

* Would provide a distinctive nature-based tourism experience that would complement and enhance visitor experience within the region and Victoria as a whole.

* Would deliver substantial direct and indirect economic and employment benefits to the region both in its construction and operation.

81. Mr. Keage's view was that there is a significant lack of accommodation and a great opportunity for a wilderness lodge along the Great Ocean Road. Tourism Victoria's research shows that the three tourist activities of the highest demands are soft adventure, nature and eco-tourism, and indulgence. The proposal is aimed to provide these. However, it is not appropriate to locate it in the townships of Port Campbell or Apollo Bay because it is a site-specific product that is closely associated with, but separate and set back from the National Park and coastline. As far as eco-style accommodation is concerned, his review of other Australian facilities found that there are common elements such as:

* A strong focus on sites outside National parks, taking advantage of already disturbed or modified land;

* A preference for quasi-remote sites that provide visitors with a `remote' experience for both public day visitors and guests

* Utilisation of low impact design standards and practices

* High quality construction practices and service delivery, often above the levels provided in their local region

* Improvement in regional tourism performance, stimulated by the `destinational' value of the properties in their own right

* Improvement in regional destinational marketing via improved brand awareness and consolidation.

82. Further to these common elements, the Moonlight Head Eco-hotel has the potential to become a distinct and identifiable destination in its own right, especially for medium to high yield tourism markets that are not represented in the region, has the potential to lessen the amplitude of seasonal visitation to the Great Ocean Road, would likely improve the viability of existing local attractions and attract new businesses. Due to the involvement of the internationally acclaimed architect who holds the renowned Pritzker Architecture Prize, the hotel could well become a destination because of its design. (This prize was awarded recently to Joern Utzon, Architect for the Sydney Opera House).

83. Mr. Binder's evidence was that Council's planning scheme seeks to encourage the promotion of tourism related development. It, however, does not exclude tourism development in non-urban areas. Instead, it contemplates high quality tourism developments in association with the heritage and landscape values of rural areas. Although the proposal is not in a township, the strength of the proposal is that it is linked to a quiet nature-based rural environment. The attraction is its remoteness, similar to other eco-hotels which are located in remote and natural landscape environments throughout the world. During cross-examination, he also gave his view that this development would have employment benefit which would hopefully assist in the spread the economic benefits across the shire, and retain young people in nearby townships because of the availability of this substantial employment opportunity.

84. We accept the evidence of Messrs. Keage and Binder that the development meets the tourism objectives of the planning scheme. However, we would comment on the apparent contradiction of Clause 22.03-4 - Tourist Use and Development, as emphatically pointed out by review applicants, that the intention of the Planning Scheme is to direct tourism development to existing townships.

* "To support quality tourist development in association with the landscape and the heritage values of rural and urban areas.

* To promote coastal related use and development to be focused in the towns of Port Campbell and Princetown.

* To encourage tourist development related to agricultural and other rural based industries."

86. The policy of this clause is that the design and siting of buildings and works will have regard to:

* The landscape features of the immediate environs.

* Integration with existing commercial use and development. The use of landscaping treatment to assist in the presentation of the Development;

* Height, scale, mass and colour to reflect building forms and types that are compatible with the environment.

* Native vegetation, watercourses and other natural features.

* The capacity of the site to accommodate the proposed use and development.

* Access from roads, both internal and external to the site and the provision of car parking areas for patrons."

87. One of the objectives is to promote coastal related use and development to be focussed in the towns of Port Campbell and Princetown. This is one of the issues where review applicants submitted that the proposal should fail. We, however, disagree. The nature of development of this hotel in our view is not just "coastal related". The emphasis is being remote. It would rely on its proximity to the coast, the Great Ocean Road and the hinterland. The theme of the development is "wilderness" and isolation. It cannot be located in urban areas or existing townships. Further, we have no doubt that it is a development which, as the other two objectives state:

* "To support quality tourist development in association with the landscape and the heritage value of rural and urban areas.

* To encourage tourism development related to agricultural and other rural based industry."

88. We find the concept of a quality tourism facility located in already modified land with a low impact design and one which responds to its environment, a sound one. This is not confined to the architectural merits of the building, but as a package of landscaping, energy efficiency, on-site water supply and waste treatment, and having regard to the issues such as traffic and parking, soil stability, wild fire management, and remaining farming activities. We conclude that the development is acceptable in light of planning controls and policies as currently contained in the Planning Scheme.

Design of the building, its responsiveness to the environment

89. The proposed hotel is designed by Mr. Glen Murcutt and Ms. Wendy Lewin. Prior to the hearing, both Tribunal members were not aware of Mr. Murcutt's very high stature in the architectural profession and his pre-eminence in his field. This placed us in an objective position when assessing the merits of the design without being over-awed by any pre-conceived views. Our consideration of the design is limited to its response to the site, the scale and massing of the buildings in their context and setting, its regard to the topography of the site, and whether as a whole it will achieve energy efficiency, best practice waste management, land management, and appropriate against planning policies.

90. The size of the main building in terms of length and number of levels, is not usual in the area. This is not a usual or traditional building. Despite its three levels, it presents as a single storey building to Parkers Access Road. It hugs the contour of land and flows with the slope. The bends in the building, use of shrub screen planting, the minimal excavation, respect for land, the negative loss of vegetation as a whole, mean an environmentally sound building. The massing, choice of materials and the landscaping enable a harmonious marriage of land and building. The fact that it is visible from a number of points does not diminish the principles of the design.

91. Mr. Murcutt's evidence demonstrated to us his skills in designing with nature by understanding the particular qualities of the site such as aspect, orientation and topography. He persuaded the permit applicant to re-site the main building from its original location which has a maximum view of the coast, to one where the slope is more stable, a degraded part of the land and where there would be no loss of native trees. He convinced us that he is uncompromising in achieving quality outcome. The orientation of the buildings is such that it is placed to maximise the northwestern aspect for the rooms. General activities (noisier elements) are located at the eastern end with sleeping quarters to the western end. Further, both the general amenity/facility wing and guest rooms are oriented away from Parkers Access Road.

92. As far as climate controls of the hotel are concerned, there will be no air-conditioning. Cooling is by means of natural ventilation using vertical ventilators, use of fins/blades between rooms to deflect lighting and wind velocity. Although the construction cost of the development may be high, the running cost was said to be low because of the energy efficiency of the buildings.

93. As for water supply and waste water treatment, there will be no reliance on reticulated services. Water is provided on site, with potable water from collection of rain water and from bore water. A licence has been obtained from Southern Rural Water. Waste water is treated on site without relying on the aerobic system. The permit applicant has been negotiating with and has accepted conditions requested by the EPA, Southern Rural Water and DNRE. The involvement of these authorities and their support for the development give us the confidence that the proposed development is provided with a workable and viable alternative services.

Impact on the Landscape of the Area - Scenic Value

94. One of main concerns of review applicants is the impact of the development on the landscape which in turn leads to a loss of view for other people using Parkers Access Road, and the visibility of the building from other points in the area.

95. Again, we note that no Significant Landscape Overlay applies to the site and it has not been identified to be of particular landscape or heritage/cultural significance. Is there, therefore, any impact on the landscape of the development on the area, and is such an impact acceptable in the locality? The location of the main hotel building is almost on the ridge. It has a horizontal profile, with `fingers' pointing at Parkers Access Road. Landscaping is proposed for Parkers Access Road to the extent that there would be a filtered look of the building from the road. As far as being highly visible from other viewing points, we have inspected the site of the building from various points nominated in the Williamsons Report and those points nominated by the Otway Planning Association along the Volney Track. On our second inspection, the weather was fine but hazy along the coast. From this inspection, we find the most exposed view of the main building is from the Volney Track, the two points nominated by the Otway Planning Association (equivalent to VP 27 of Mr. Williamson's report). In fact, the main building would be almost in full view at a reasonably short distance from neighbouring paddocks. Is this visibility of the building fatal to the proposal?

96. Our second inspection included the experience of the length of the Great Ocean Road from Geelong to Port Campbell, and almost the entire length of the Volney track. This gave us a feel for the area and a would-be tourist experience of the coast, forest, intervening townships, and farmland. From the Volney Track, we saw parts of the proposed Great Ocean Walk. This experience indicated to us that a walking experience in the area would include pristine environment in the National Park with its majestic forest, gullies and waterfalls, native forests, plantation forests, spectacular coastal and cliff sceneries, townships, farmland, valleys, and rivers. As far as the Volney Track is concerned, it is a walking/4 wheel drive track that leads to headlands with exposure to coastal views of cliffs, the southern ocean, gullies, up and down slopes, scrubland, heathland, farmland, closed and open views, and encounters with livestock. At the points (marked 2 and 3) recommended for viewing by the Otway Planning Association, the main hotel building will almost be in full view.

97. We are not disturbed by the visibility of this building. Its visibility is part of the visual encounter of this walking experience. A walking experience in the area should not be to exclude views that are not bush. What we see as important is that it is a positive one. We would consider a well-designed low impact development such as is proposed here in a landscaped setting amongst expansive farmland and wilderness, part of the landscape. Its visibility is not fatal to this review. It may even become a future reference point in this walking experience.

98. Mr. Mitchell was particularly concerned with the obstruction of view from Parkers Access Road which he and his guests at Moonlight Retreat currently enjoy. We would first confirm that planning schemes and a long line of Supreme Court decisions do not purport to guarantee enjoyment of views. Whilst some planning schemes, such as the Mornington Peninsula Planning Scheme, specifically refer to sharing of views for parts of that municipality, it is not a primary consideration. We accept that the views from Parkers Access Road down the slope of land to the coast will be reduced by virtue of the buildings and landscaping. It is not a basis for refusal of this review. Instead of the current total open view, there will be openings along Parkers Access Road where these views will be still available.

99. As part of the investigation and design of the development, the permit applicant commissioned a number of technical reports on the site: water and waste management, Geotechnical assessment, ecological assessment, traffic assessment, landscaping, visual assessment, economic assessment, planning assessment, and wildfire assessment. We do not intend to repeat the findings of these reports. Further to this investigation, Council has commissioned Mr. R. Phillips for a report on the impact on the viability of the farming aspect of the balance of land. Our reading of these reports and our observation from the cross-examination of the authors of these reports (except wildfire assessment where it was agreed that it was not necessary to call Mr. George Wright to appear in person to be cross-examined), we are satisfied that the development represents a low impact development, one which is responsive to the elements of the land without loss of native vegetation but an improvement to the vegetation. Despite doubts of the review applicants of the various aspects of the development failing, for example, waste management, water supply, inability to employ staff, inability for trees to grow etc., no evidence were put before us to be the case (except for comments from Mr. Leonard tabled by Ms. Quigley regarding water and waste water management).

100. What gave us comfort is that the proposal has been referred to the statutory referral authorities such as VicRoads, EPA, DSE, DNRE, Southern Rural Water and non-statutory agencies such as the Western Coastal Board, who have the expertise and responsibility of these areas. We put considerable weight on their advice. These authorities or bodies have no objection to the proposal, subject to what we consider as reasonable conditions. We therefore rely on their acceptance of the proposal as indication that these areas are resolvable and the proposal workable.

101. The most affected adjoining properties are those of the Moonlight Retreat (Mr. & Mrs. Mitchell) and Mr. Conway (represented by Mr. Rogalsky). Other adjoining property owners did not object to the proposal. We gather from their submissions and subsequent cross-examination of expert witnesses that they were concerned with the location of the waste treatment facilities, apart from the amenity issue of traffic on Parkers Access Road, the noise, dust, light spill generated by the development. We suspect that Mr. and Mrs. Mitchell are concerned with what the development might take away from the perception of isolation of their operation, or what they see as the attraction of the retreat. We consider that what they see as attraction for their retreat is part of the attraction of the proposed development, such as the remoteness, the views and the wilderness feel of the area. We see no argument against the sharing of the enjoyment of this environment, except that the proposed development provides for very different facilities. Whether the two facilities would generate synergy for each other is not for us to speculate. However, we are satisfied that the design of the complex focussed its guest activities and traffic activities at the eastern end of the complex hence minimising impact on the Moonlight Retreat cottages. We have no evidence that the waste treatment would cause actual odour or similar detriments. We note that Council's approval is subject to many conditions, covering areas such as noise monitoring, and various management plans for the environment.

102. It is important for us to point out that an approval of a development inherently involves changes to the land in question. Our task is to ensure that this change is within the planning policies of the planning scheme for the site.

103. Review applicants were all concerned with the precedent of a large development in the area and that it would be difficult for Council to refuse similar types of development.

104. We have no hesitation in re-iterating the Tribunal's approach to reviewing applications: that each is considered on its merits. To us, every site is unique, subject to different influences, opportunities and constraints. Support for this proposal does not translate to compulsion to approve another. This is not to dismiss that other landholders may not try to emulate this proposal. If they are prepared to be as thorough as the current application, taking almost every aspect one can think of in terms of the environment into account, there is no reason why such application cannot be considered. That application would be subject to the same rigorous assessment by the various authorities and agencies, consultation with the community through the permit application process, and the responsible authority. It is only through such a process that a proposal can be properly tested. It is folly to suspect that either Council or VCAT is bound by a precedent to approve a development simply because one has been approved, especially if the one approved is found to be a poor example.

105. We wish to make a comment about the multi-disciplinary approach adopted by the permit applicant in the preparation of the project. The up-front consideration of water supply, waste water treatment, commissioning an architect who is particularly skilled in designing with the environment, consideration of bushfire, investigation of the flora, fauna, aboriginal heritage, etc. represent a thorough investigation of the site. Together with the input of other disciplines such as economic analysis, landscaping, and scenic assessment, we have been given information that would assist us to conclude that the major issues affecting the development have either been resolved or are resolvable.

106. On the final day of hearing, we discussed permit conditions. Mr. Bisset tabled a set of draft conditions which are a revision of those contained in the Notice of Decision to Grant a Permit. The extent of revision is restricted to streamlining the language of the conditions without changing the content.

107. Following review of changes requested by the review applicants and permit applicant, we decided to adopt the `streamlined' version of conditions and the further amendments in the following areas:

* Condition 6(e) to replace the word "properties" with "land". We do not agree with Ms. Quigley's suggestion of using "best commercially available non-reflective glass". We are not aware of a "best commercially available non-reflective glass". We are of the view that it should be of a type that is to the satisfaction of the Responsible Authority.

* Condition 6(e) to exclude the use of `zincalume' or similar reflective materials as external cladding and trim for the buildings.

* Condition 6(h) to require consultation with Parks Victoria regarding the keeping of domestic animals on site, apart from consent from the Responsible Authority.

* An additional sub-condition for Condition 6 of "Except with the further approval of the Responsible Authority, motor bikes must not be hired to guests or visitors associated with the use authorised by this permit."

* Condition 9(d) be amended so that the required Environmental Management Plan may be submitted no later than six months "prior to the commencement of use" instead of six months "after the commencement of the use and development".

* Condition 11(b) to add "and responsibility for planting and on-going maintenance" after the words (Government Roads).

* Condition No. 15 to substitute the words `Responsible Authority' with the name of the referral authority.

* Condition No. 17 be deleted as that condition requested by Powercor relates to subdivision only.

* Condition No. 19(e) to require the permit applicant to "use best endeavour to have the complex" included in the Municipal Emergency Management Plan for the Corangamite Shire.

* Condition 21 to allow a time limit for completion for Stage 1 as 4 years from date of permit, and 8 years for Stage 2.

108. As can be noted, we did not amend Condition No. 2 which requires the detailed design and execution of the design by Mr. Murcutt. Although it is unusual for the Tribunal to impose a condition which is personal in nature, we agree with Council that the detailed design, implementation and execution of the design should be carried out by Mr. Murcutt to ensure the desired quality of the development.

109. The outcome of the development is a hotel complex of 75 rooms, 5 cottages, supporting facilities, ancillary parking, and workshop/treatment facilities to be constructed on a degraded part of the land. Apart from the building component, the end result is also a gain of 4.5 hectares of native vegetation, no loss of native vegetation, a self-reliance of water supply, a credible water and waste management system, a design that responds to and respects the land, the retention of the balance of land as a farm, recycling of water for irrigation and hotel use (not potable purposes), an acceptable level of impact on the road system which is to be augmented by improved road conditions in the pavement and intersectional treatment.

110. More importantly, we are satisfied that it is consistent with the zoning, overlays, and planning policies of the Corangamite Planning Scheme.

111. For the above reasons, the Applications for Review are not allowed and Council's decision is affirmed. We will order the issue of permit subject to the conditions as discussed.

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