With respect to permit application no. 04281, the Responsible Authority's decision to refuse the grant of a permit is affirmed. A permit must not be granted.

Mr C Taylor, Solicitor, The Partners. Mr Taylor called Mr A Clarke, Planning consultant and Mr BA Wollard, Traffic Engineer, to give expert evidence.

Mr T Ludeman, Planning Consultant with Mr B Fitzgerald, Council officer - Engineer.

Mr B Keen, Planning Consultant and Ms C Van Eyk, on behalf of the residents of 27 properties listed in the document tabled by Ms Van Eyk.

The following objectors appeared in person: C Van Eyk; P Steinkellner; W Anders, M Williams, P Xuereb, J Anders, T Morsink, P Cooke, N Treasure.

1 This matter relates to an application under s 77 of the Planning and Environment Act 1987 by Mr V Nightingale against the Latrobe Shire Council's decision to refuse the grant of a permit in permit application no. 04281. The permit application sought permission for the use part of the land at 215 Thomson Road Hazelwood South for the purpose of a paintball game facility.

2 Despite receiving a report from its officers recommending that a permit be granted, the council decided to refuse the permit application. The grounds of refusal listed in the notice issued on the 5 November 2004 are:

1. The proposal would have an adverse impact upon the amenity of the area.

2. The environmental impact of the proposed development would be unacceptable.

3. That Crawford's Road is of inadequate standard to cater for the increased traffic which the development will generate.

3 The council made its decision after it received 45 objections to the application. In general terms, the grounds of objection express concerns about the appropriateness of the use within a rural/residential environment; amenity impacts such as noise and dust; environmental impacts on native vegetation; traffic and the suitability of the access as well as the risk to the safety and security of residents.

4 The council also forwarded the application to the Victoria Police and the Department of Sustainability and Environment [DSE].

5 Victoria Police advised the council that it did not wish to make any comment at that stage; however, if a permit is granted, the applicant will need to make a written application to the Chief Commissioner of Police to conduct a Paintball Activity Location on the site.

6 DSE provided the council with 2 responses. The first response was by letter dated 24 August 2004 and provided information about the vegetation on the property, expressed concerns about the impact on understorey planting and requested further information. A meeting with DSE officers was subsequently held on site and further information was also provided. Following a meeting with the applicant and the provision of further information, DSE wrote to the council[1] advising that it did not object to the grant of the permit subject to the inclusion of specified conditions on any permit that should issue. I will discuss these conditions in more detail later in these reasons.

7 The subject site comprises part of the property known as 215 Thomson Road, Hazelwood South. This property fronts onto the east side of Thomson Road, a few hundred metres south of Crawford Road and is also bounded by Rules Road to the south. Crawford Road, which has a meandering alignment, terminates at the properties rear of easternmost boundary.

8 Strictly speaking the property is vacant land; however, I understand that the applicant proposes to construct a dwelling[2] on the western half with access from Thomson Road and to undertake some farming in the form limited grazing of cattle and ostriches. Post and wire fencing has been erected around the perimeter of the property to facilitate this use.

9 The property has an extensive cover of native vegetation comprised of both taller canopy trees and understorey. Based on the information set out in a letter from DSE[3], the vegetation on the site is mapped as 'Lowland Forest' Ecological Vegetation Class [EVC] which is considered vulnerable in the bio-region. DSE also noted that there is a possibility of 'Damp Forest' EVC, which is considered endangered, occurring in gullies. This information is consistent with the information on a map tabled by objectors which shows the location of the various EVC's on the site and surrounding area. By and large, the vegetation on the property would appear to be largely intact, although there has been some clearing to provide vehicle access tracks and around its perimeter adjacent to where the boundary fencing has been erected.

10 The "site" which is the subject of the proposed use has an area of about 23 hectares located at the eastern end of the property at 215 Thomson Road. I have distinguished this 23 hectare area as the "site" for the purposes of this application as permission is only being sought to use this component of the parent property for the proposed paintball game activity. The identification of the site follows the principle set out in BP Australia v Bayside CC [2004] VCAT 604 when the tribunal commented:

We agree with Mr Finanzio that given that "site" is not defined within the planning scheme, it must be given its ordinary meaning having regard to the context in which it is being used. The Macquarie dictionary defines "site" as "the position of a town, building etc., especially as to its environment" and "the area on which anything, as a building, is, has been or is to be situated." There is no mention of a site being identified by title boundaries. It follows that the "site" of a particularly use or development is not necessarily the same as the title boundaries, rather, it is the position or area upon which the use is situated.[4]

11 The site would have its access from Crawford Road. The site is much like the balance of the parent property; vacant but extensively covered in vegetation with cleared areas near the Crawford Road entry, adjacent to boundary fences and more centrally in the form of a vehicle access track. According to the mapping information tabled, the vegetation falls within the 'Lowland Forest' EVC. The site is set on terrain with moderate slope, falling from its northeast corner down towards a small gully that traverses southern half of the site.

12 Properties to the north and south also comprise relatively large lots; however, they are smaller than the parent property of which the site forms part. These neighbouring properties are also set on sloping terrain and heavily vegetated. The mapping data indicates that the vegetation is also within the "Lowland Forest' EVC. Mr Williams' property, which is occupied by a relatively new dwelling, has its side boundary in common with about the western two-thirds of the parent property but no direct abuttal with the site of the proposed use. Ms Anders' and Mr Beasy's property is located immediately to the south of the front part of the parent property, but to the west of the site. The eastern corner of the Anders/Beasy property would be about 30 metres from the site's southwest corner. I understand that Ms Anders and Mr Beasy have cleared a site on their property with a view to constructing a dwelling. The dwelling would be located about 850 metres from the site.

13 Land to the east of the site has been cleared and is used for grazing and quarrying.

14 The area to the west of the parent property, fronting onto the west side of Thomson Road generally comprises rural living style lots that have been developed with dwellings.

15 Thomson Road provides for one lane of traffic in each direction with a 100kph speed limit. It is sealed and line-marked to divide opposing lanes of traffic. Crawford Road can be described as a rural road with gravel/sand surface. It has a meandering alignment for much of what I would describe as its east-west leg, whilst the north-south leg leading to the site has a relatively straight alignment. The distance between Thomson Road/Crawford Road intersection and the site's Crawford Road access pint is about 3 km.

16 The applicant seeks permission to use and develop the site for the purpose of a paintball games facility.

17 Development on the site would comprise a portable office building, portable toilets and staging area of about 2500 square metres located near a cleared area toward the Crawford Road frontage; a 30m by 50m target area near these buildings and a car park area and access with crushed basalt surface. The staging and target areas are to be fenced and accessed by gates. To facilitate this development some clearing of vegetation is required.

18 It is envisaged that save for a 25 metre "buffer" area around the perimeter, the balance of the site will be divided into various "fields", generally about 1 hectare in size, suited to playing various paintball games. The field boundaries are not to be permanently defined. Rather, fields are to be defined by brightly coloured tape that can be moved so that the location and size of a particular filed can be modified to suit the type of game being played and to alternate where activity occurs on the site.

19 The applicant seeks permission to be able to allow the facility to be used on a 7 day per week basis between the hours of 9.30 am and 6.30 pm. It is proposed that there would be 2 sessions per day, each session having duration of about 2.5 hours with up to 50 competitors or players. All players are required to hold a gun licence. The morning and afternoon sessions would be broken by a 1 hour interval to allow for the changeover of competitors. Night time sessions are no longer proposed.

20 Several games lasting between 20 and 40 minutes would be played within each session. In general terms, players will have what Mr Clarke described as a "paintball marker which uses compressed carbon dioxide so as to propel paintballs". The applicant will provide the paintball markers or guns to be used as well as other equipment comprising helmets, paintballs and overalls. Players will not generally be able to provide their own equipment.

21 The aims or objectives of the various games that could be played vary. However, the common element is that they would require players to fire paintballs [described by Mr Clarke as "1.5cm wide sphere, filled with non toxic vegetable dye in a gelatine coated casing."] to achieve the outcome or aim of the game. Paintballs can be fired from a distance of up to 50 metres; however, the degree of accuracy decreases at distances of between 20-30 metres. Games will be supervised by several referees [ratio of about 1 referee to 10 players] who will also be able to supply players with additional paintballs if they run out.

22 Under the planning scheme, the site and surrounding land to the north, south and east is located within the Rural zone the provisions for which are found at clause 35.01. The land is not affected by overlay controls.

23 Under the zone provisions, "Paintball game facility", a use which falls within the meaning of "Outdoor recreation facility" and the broader definition of "Leisure and recreation" under the planning scheme's nesting provisions, is a section 2 or permit required use within the zone.

24 Further, a permit is also required under clause 35.01-3, a permit is required to construct and or carry out works associated with a Section 2 use.

25 In addition to the decision guidelines at clause 65, the zone control specifies that a number of general, rural, environmental as well as design and siting issues must be considered, as appropriate.

26 Clause 52.17 sets out the provisions for native vegetation. The clause states that a permit is required to remove, destroy or lop native vegetation unless one of the exception circumstances apply. However, it seems that Mr Taylor was, at the very least, unclear whether the exceptions would apply. On this basis at the commencement of the hearing, Mr Taylor indicated that it would be appropriate to amend the permit application to expand the permission being sought to include "removal of native vegetation". Mr Keen and other objectors expressed concern about this amendment; asserting that there is no detail in the application documents as to the nature of the vegetation to be removed. Mr Taylor indicated that the vegetation to be removed would be in the car park and staging areas.

27 After hearing from the parties, I allowed the application to be amended to expand the permission being sought to the removal of native vegetation within the staging and car park areas shown on the plans.[5] I did so on the basis it was apparent that the issue of vegetation removal had been an issue in the permit application and had formed part of the council's consideration of the proposal, albeit that the express permission for such removal had not been specified in the application or the plans.

28 Where permission is require for the removal of native vegetation, the decision guidelines at the end of clause 52.17 come into play.

29 Car parking requirements are set out at clause 52.06. A use must not commence until satisfactory car parking has been provided. In this case, the table at clause 52.06 does not specify a requirement for parking associated with the proposed use; as such, it is a matter of car parking being provided to the council's satisfaction. The council and the objectors did not indicate that the area provided for car parking would not be able to accommodate the demand generated by the use.

30 There is a raft of planning policies that provide what I consider to be general guidance to the consideration of this proposal. In terms of the State Planning Policy Framework, these include the clause 15.05 (noise abatement0, 15.09 (conservation of native flora and fauna) and tourism (clause 17.04).

31 When read in total, I consider that the outcomes to be achieved under the MSS, as relevant to this case, relate to the protection of the municipality's biodiversity, rare and endangered plants and wildlife habitats; the protection of high quality agricultural land for farming unless the land supports significant vegetation; and encouraging tourism opportunities that are compatible with the nature of the locality and do not cause unreasonable loss of amenity.

32 After having heard the submissions and evidence, the matters set out in the planning scheme and legislation and the details of the proposal, it seems to me that the key issues are:

•

Is the proposed use appropriately located within the Rural zone?

•

Would the proposed use result in any unreasonable impacts on the amenity of the area?

•

Would the proposed use result in any unreasonable environmental impacts?

33 Before turning to these matters, I should make some comment about submissions presented on behalf of objectors asserting that the proposed use is inappropriate on moral grounds; that its existence would potentially pose risk to the security of the local community because strangers would be drawn to the area and unlawful vegetation removal has already occurred.

34 In relation to the moral issue as to whether it is acceptable to have a use which involves "gun" like equipment and activities that involve shooting at human targets, I can appreciate that some members of the community may be offended by the nature of what takes place. The same could be said about other uses like brothels, sex book shops and adult entertainment venues.

35 However, it must also be recognised that some members of the community are not offended by the type of use proposed in this case; rather, they consider it to be a legitimate form of organised recreation. Indeed it was with some irony that 2 objectors at the hearing admitted to participating in paintball games at other venues.

36 I think the former Planning Appeals Board in Ganoid Nominees Pty Ltd v City of St Kilda [Appeal No P82/1633] set out the correct position when it said:

This board is not the arbiter of morals. Whatever its view on amusement parlours, it must balance the scales firmly. Amusement parlours are not a prohibited use. If they were to become such a prohibited use is a matter not for this Board but for the Government of the day. Consequently this board must consider the matter on a dispassionate basis.

37 The simple fact of the matter is that the proposed use in this case is one that is lawful subject to a permit being granted. It is not prohibited. My task is to assess the appropriateness of the proposed use having regard to the circumstances at hand and having regard to the relevant matters as set out in the planning scheme and the Planning and Environment Act 1987. Given that the legislation contemplates that there will be circumstances when this type of use will be acceptable, it would be inappropriate to deny a permit on the basis that the use is inappropriate on moral grounds.

38 I am also unable to conclude that the concern raised about strangers being drawn to the area, particular those inclined to play paintball games, would give rise to unacceptable security risks or antisocial behaviour.

39 Residents are concerned that persons who engage in paintball games pose an unacceptable risk to their local community. Similar concerns were expressed by objectors in the matter of P Richards and Others v Shire of Pakenham [Appeal No. 1993/20488] a case that involved the use of land zoned "Conservation 2" for paintball skirmish games. In that case, the use had already been operating for some years without a permit. The objectors recounted their observations of that use, alleging that persons associated with it had exhibited dangerous driving behaviour as well as loutish and boorish behaviour. In response to these submissions, the tribunal commented:

.........., these incidents must be placed in context. The use has been in operation for over three years and the Tribunal would estimate that in that time it would have attracted between 4000 and 5000 patrons. The Tribunal considers that it should be cautious about the concept that the solution to the problem, of anti-social behaviours by a small group of people is to deny the whole community access to a particular facility. In the broader community, vandalism and other forms of anti-social behaviour can be associated with a range of uses from secondary schools to hotels. We do not as a consequence decide that these uses are inappropriate, rather we may give some thought to locational considerations which might arise from these marginal effects.

40 In this case, there was no evidence presented to show that the assertion put forward by objectors, perhaps better described as the fear of residents, is soundly based taking into account the facts.

41 What must be remembered is that a use of this type is regulated. A planning permit is required. The conditions of the permit must be complied with. Each player must hold a shooters licence. Equipment is to be supplied on site and then taken away from players when they leave. Games are to be monitored by staff patrolling the fields of play.

42 The site must also be licensed by the police. I would expect that compliance with the police requirements would need to be met. If compliance is not achieved and activity such as shooting outside the site is shown to occur [demonstrated by the tell tale "splat" of a paintball outside the designated area], I would be surprised if in such circumstances the police did not review and possibly revoke the licence.

43 Further, I would have thought that the police would be in the best position to ascertain if the proposed use would give rise to crime or unacceptable security risks. The police have given no indication that the proposed use on this site would give rise unreasonable security risks.

44 The proposed site is located over 1 kilometre away [as the crow flies rather than by road which is further] from the rural residential area to the west of Thomson Road. The rural residential area to the west of the site is not a gated enclave segregated from the outside world. Like all areas, this area is not immune from security risks, vandalism or the effects of anti-social behaviour. Many "outsiders", not just the persons using this facility, would travel along Thomson Road on a day to day basis. I do not so why an "outsider" using Thomson Road to access the site would pose anymore threat to the security of residential properties than other "outsiders" using this road. In my view, the expectation that only uses that do not attract "outsiders" into an area should be allowed is simply unrealistic.

45 The reality is that the site is zoned Rural. The provisions of the Rural zone provide a wide level of discretion as to the type of uses that may be permitted. This is not to say that all discretionary uses will be acceptable simply because a permit can be issued. Rather, the provisions of clause 31.01-2 make it clear that in deciding whether a permit should be granted, the responsible authority must decide whether the proposal will result in "acceptable outcomes". The assessment of what constitutes an acceptable outcome is not necessarily based on what applicants and objectors want; rather, the planning scheme makes it clear that it is to be based on factors such as planning policy, the purpose of the zone and the decision guidelines that apply.

46 Concerns were also raised by objectors about various works that have been undertaken on the land, particularly the removal of vegetation and the installation of boundary fences around the perimeter. These matters are not the subject of the application before me. As I understand it, various assertions have been made about whether these works were lawful. In a proceeding before Deputy President Gibson in Morsink v Latrobe CC [2005] VCAT 1161, the tribunal declined to make the declaration sought by the applicant[6]. The simple fact of the matter is that it has not been proven that the development and works undertaken were unlawful. Further, even if I put aside the question of the nature of this application, the material before me was well short of the standard required to enable the tribunal to come to a finding that an offence has been committed.

47 I now turn to the key issues, the first of which is whether the proposed use accords with the purpose of the zone. It was submitted by Mr Keen that the purpose of the rural zone does not encourage this type of use and that this is a factor that weighs against the grant of a permit. Conversely Mr Taylor posed the rhetorical question, if a use such as this could not be located within a rural environment like this, where could it be located?

48 The purpose of the Rural Zone is clearly geared toward facilitating rural land use and activity. However, the zone purpose also seeks outcomes that include an integrated approach to land management, protection and enhancement of bio-diversity and "the promotion of economic development compatible with rural activities".[7]

49 I think that there are 2 important points to be made about the purpose of the zone. The first is that the zone purpose itself recognises that rural land presents an opportunity for activities that facilitate economic development. In this regard I would expect that the proposed use would attract people to the municipality thus making some contribution to local tourism and as well as creating some employment. Further, there was nothing submitted to substantiate the view that the proposed use would be incompatible with rural activities on surrounding land. There was a claim that persons shooting paintball markers outside the site onto adjacent farmland could endanger livestock; however, this assertion does not take into account the way that the use is to be run, licensing requirements and the restriction on paintball games equipment being brought onto the site.

50 The second point to be made is that there is nothing in the purpose of the Rural Zone to support the view that it is there to facilitate residential use and or amenity. Contrary to Mr Williams' assertion, the site and the adjoining properties to the north, south and east are not located within a Rural Living Zone. The balance of the parent property to the west of the site is also zoned Rural. This site is effectively within and surrounded by land zoned Rural. Whilst the area to the west of Thomson Road is zoned Rural Living, this area does not have a direct interface with the site, the western edge of which is located over 1 km away. The Rural Living area to the east is even further away.

51 Whilst I appreciate that the view expressed by neighbours to that they enjoy the ambience, quietness and natural setting of the area, the purpose of the Rural Zone is not about providing land for superior quality residential amenity. As noted by the tribunal in Tylden Equipment Sales Pty Ltd and Anor v Greater Dandenong City Council and Ors [2001] VCAT 2239

It must be recognised that land zoned for rural purposes is not necessarily a "haven" providing for superior quality residential amenity. Rural uses, will because of the buildings they require, the equipment that needs to be used and other agricultural practices (eg: the keeping of animals, the use of fertilisers and sprays etc.) all have the potential to have an impact on amenity.

52 This is not to say that amenity impacts on rural properties with dwellings are not relevant; however, the expectations as to what may be reasonable must be balanced against the type of activity that may be entertained within the zone.

53 A further point to consider is the nature of the use and activity itself. As indicated by Mr Clarke, the very nature of the proposed use requires an environment that provides a reasonably expansive area of land and vegetation cover.

54 The conclusion that I have reached is that, in principle, I do not see the proposed use as being one that is incompatible with the purpose of the zone. The real test of this proposal is whether it would result in any unreasonable amenity and environmental impacts.

55 The next issue relates to various amenity concerns raised by both Mr Ludeman and the objectors. These concerns related to noise; dust, litter, and traffic.

56 It was asserted that the proposed activity would disturb the quiet, peaceful ambience of the area in a number of ways; first, the "popping" noise of the paintball markers as they shoot the paint balls; second, players yelling loudly during the course of and in between games and third, traffic travelling to and from the site along Crawford Road.

57 I do not accept that the "popping" of the paintball markers would result in significant noise. Mr Clarke's evidence was that the noise generated by paintball markers is similar to that of a champagne cork popping. I doubt that the popping associated with the paintball markers being fired would be audible from the rural residential area to the west of the site or from Mr Williams' property given the distances involved. Depending on the location of the fields, the "popping" of paintball markers may be heard from the rural area to the east; however, I doubt that the extent of noise would be sufficient to disturb and cattle grazing nearby. With respect to the property to the south, I would expect that there is the prospect of the "popping" of paintball markers being heard in the vicinity of the common boundary with the site. However, as one moves away, the noise would be less audible. I doubt that noise from paintball markers would be audible at the proposed house site which is about 850 metres away.

58 I also have difficulty accepting that noise generated by players would be a reasonable basis to deny a permit given the nature of the game and the distances involved. It seems to me that the perception of the residents is that players would generally be yelling, screaming and cheering throughout the playing of paintball games. Whilst I have no doubt that there would be some cheering and conversation at either end of a game, I accept Mr Clarke's evidence that in general terms, players would seek to be as quiet as practical to avoid being caught and/or to eliminate their opponents. I have not been persuaded that the noise associated with the cheering of a victorious team would, in itself, be unreasonable given the distances involved and the limited occurrence.

59 Noise may also be associated with traffic. I would expect that the use of the site for up to 50 players in each session [100 players per day] would result in about 100 vehicle trips per day to and from the site. This figure may vary; however, I agree with Mr Woollard's view that it is likely to be around this mark as I would expect players to travel to the site in pairs or carload groups rather than individually given that games are team oriented and attended by organised groups.

60 I am unable to accept the proposition that the likely additional traffic associated with this proposal would have any marked noise impact on Thomson Road. The amount of cars using Thomson Road would increase; however, given the standard of the road construction and its function, I doubt that noise from the additional traffic will be perceptible.

61 The change in Crawford Road will be more substantial. According to Mr Woollard, about 10 vehicle trips per day could be expected in Crawford Road at present. This would increase by about 110 vehicle trips on days when 2 sessions with different participants in each are being conducted on the site. Assessing only the noise impacts, Mr Williams may notice an increase in activity on Crawford Road, but I do not accept that the degree or extent to which there would be an increase in noise associated with traffic would justify the rejection of the proposal.

62 Concerns were also raised about dust impacts, the concern being that dust would be generated by vehicles travelling on Crawford Road resulting in traffic safety problems due to poor visibility and dust settling on nearby buildings potentially contaminating rainwater. I was not presented with any evidence on this issue which has made it difficult to come to a conclusive finding. Indeed, Mr Woollard conceded that he had not been asked to consider the dust issue in making his assessment of the suitability of Crawford Road. Further, I have concerns that the observations I made during my inspection only reflect one set of circumstances with respect to the condition of the road surface and weather.

63 On this issue I would simply say that gravel/sandy roads are not an unusual feature of rural areas and that in some cases roads with these surfaces carry large trucks and other vehicles servicing rural properties. It is not uncommon to find homes on rural properties and associated infrastructure like rainwater tanks located towards the road frontage. Whilst the evidence needs to be better than what was presented at the hearing for me to make a conclusive finding, on the material available, I have doubts that the dust associated with traffic using Crawford Road would cause unreasonable amenity impacts. In terms of visibility and possible traffic problems, I am mindful that there will be periods when there will be concentration of traffic before and after games sessions. It is likely that cars will be following each other either coming or going from the site. Decreased visibility due to dust would be of concern to me given the nature of some parts of Crawford Road which are windy, narrow and present limited sight distance.

64 It is unclear to me as to how the proposal will result in litter being deposited in Crawford Road. There is nothing in the application to suggest that the site will provide food or other products etc for sale that would result in litter being thrown out of vehicles. In any event, the residents made it abundantly clear that Crawford Road is well utilised for recreational pursuits such as walking and horse riding. People come to Crawford Road. Nothing was presented to demonstrate that there is a very real likelihood that persons associated with the proposed activities on the site would give rise to litter problems compared to other visitors.

65 I have spent some time discussing the above amenity impacts given the concerns raised by and on behalf of the objectors. However, I think it would be fair to say that the most significant concern relates to the traffic impact of the proposal. These concerns relate to the ability for Thomson Road to accommodate the additional traffic; sight distance at the intersection of Thomson Road and Crawford Road and the condition of Crawford Road itself and its suitability to accommodate the amount of traffic associated with the proposal safely.

66 I have no concerns about the additional traffic in Thomson Road. The road is sealed, divided and provides for a 100 km per hour speed limit. Despite residents' concerns, the council did not express any concern about Thomson Road's ability to accommodate the extra traffic.

67 In relation to the sight suitability of distances at the Thomson Road/Crawford Road intersection, I agree with Mr Woollard's view that these are generally acceptable subject to some works being undertaken.

68 I think Mr Woollard was too conservative in expressing the view that despite the 100 km/hr speed limit, a reasonable driver would travel at about 70 km/hr along this section of Thomson Road. On my inspection, I travelled at or just under the speed limit and did not find it to be overly difficult. I observed other vehicles travelling at similar speeds.

69 However, even taking into account the likelihood that vehicles will be travelling at or just under the maximum speed allowed, I am unable to form the view that sight distances are unreasonable at the intersection. The intersection is very broad and allows for satisfactory views in either direction. I would, however, think that the surface in Crawford Road near the intersection should be sealed to avoid tyre spin as vehicles seek to accelerate from Crawford Road into Thomson Road.

70 It would be fair to say that the council's main difficulty from a traffic viewpoint relates to the nature and condition of Crawford Road itself and its suitability to safely accommodate the amount and type of traffic associated with the proposal. Specifically, the concern is that Crawford Road cannot safely accommodate the extra traffic associated with the proposal give its surface condition, narrowness in parts and winding nature. Mr Fitzgerald explained that Crawford Road is considered to be a road of limited access under the council's "Road Management Plan" give its very limited use, estimated to be about 10 vehicle movements per day. He said that this type of road is at the "bottom end" of the rural road food chain and required minimal work from council given its current function and traffic levels. Mr Fitzgerald submitted that the proposed use would substantially increase traffic volumes and that it would be necessary, for the road to be upgraded substantially, to overcome safety difficulties.

71 Mr Woollard accepted that the applicant should take some responsibility with respect to traffic works to facilitate the proposed use. In particular he expressed the view that signs should be installed in Thomson Road before the intersection with Crawford Road to provide visitors with advice as to how the site is to be accessed; the grade of Crawford Road at the entry to the site should be reduced to provide a better transition with the site and additional maintenance grading to the surface given the extra traffic. Mr Woollard also pointed to potential hazards along Crawford Road; however, he suggested that these already exist and they should be attended to by the council.

72 The availability of suitable access to a site that is to accommodate a use like that proposed in this case is fundamental to the grant of a permit. After having considered the submissions and evidence and after having had the benefit of driving along Crawford Road for its entire length in both directions, I have not been persuaded that it would provide suitable access to the site given its condition as well as the amount and type of traffic that it would need to accommodate.

73 In relation to the amount of traffic, it seems to me that it was reasonably common ground that Crawford Road would need to accommodate about 110 to 120 vehicle trips per day[8]. It was, however, suggested by Mr Clarke that the use would not operate at the same intensity on all days and that it was unlikely to be open every day. I accept that this may be the case, particularly when a use like this commences. However, the applicant proposes to have the site available for use 7 days per week between the specified hours. Mr Clarke agreed that in assisting the impacts of the use it is relevant to take into account the extent to which it could be operational.

74 If the proposed use were to operate on a 2 sessions per day/7days per week basis, it could be expected to generate about 100 vehicle trips daily and 700 trips weekly. I would not consider this amount of traffic to be high or unmanageable if the access road leading to the site was found to be of suitable standard.

75 However, this proposal involves a substantial increase in the use of Crawford Road. Vehicles would need to travel for just under 3 km to the site entry. Whilst I accept that parts of the road provide reasonable access, in my view, there are too many points along its length that are narrow, provide restricted sightlines and present difficulties for passing vehicles. I understand that one point is also subject to some flooding.

76 In considering this issue, I also take into account that the persons visiting the site be visitors who are, for the most part, likely to be unfamiliar with it.

77 I also take into account that much of the traffic generated by this proposal would occur during concentrated periods, at the beginning of the day, during the break between sessions and at the end of the final session. This is not a case where the overall volume could be expected to be spread evenly over the whole day.

78 Further, I was not persuaded that the provision of a 1 hour break between sessions would be sufficient to avoid the scenario of vehicles travelling in different directions, particularly in between sessions. There could be up to 50 players in each session. I would expect that at the end of each session there would be time taken to review what had occurred and to allow for equipment to be returned. Similarly I would expect players for the afternoon session to arrive before scheduled start time to provide opportunity for equipment to be issued, games explained and possibly some practice using the equipment.

79 The opportunity for vehicles to meet in opposing directions is too great and would give rise to unacceptable difficulties. I find the access to the site to be unacceptable given the potential intensity of the activities and the associated traffic. This factor warrants rejection of the proposal.

80 The third key issue that was the subject of considerable submissions at the hearing related to the environmental impacts of the proposal, particularly the impact on vegetation and its habitat value for fauna. Concerns were raised about the need to remove vegetation in association with the office, staging area, and car park as well as the impact that human foot traffic would have on understorey planting. These concerns were expressed in light of council policy which is directed toward the protection of endangered plants and wildlife habitats as well as the understanding that EVC found on the site is considered to be vulnerable within the bio-region.

81 Mr Keen was very critical of the material submitted with the application. In particular Mr Keen criticised the lack of information around the identification of the trees and other vegetation to be lost to facilitate the development of the car park, staging and amenities areas as well the lack of proper analysis as to the impact of human activity on the site as a whole. The resident objectors expressed similar sentiments.

82 In relation to environmental issues, the views of DSE were sought. It seems that whilst DSE was initially concerned about the proposal, the applicant was subsequently able to provide further information to satisfy DSE officers that the vegetations losses could be "offset" by the applicant entering into a Section 173 agreement that provides for 1 hectare of the parent property being set aside and protected from activities such as grazing, removing vegetation; vehicle access and trail bike riding and also being subject to weed control. Further, DSE recommended that various conditions be imposed on any permit issued to regulate the impact of human activity on vegetation on the site. For example, DSE recommended that conditions be included that require native vegetation removal to be kept to a minimum, the rotation of playing fields and the provision of information to players[9] advising them that the must have regard to native flora and fauna and avoid disturbance where possible.

83 The applicant relies on DSE's non objection to the grant of a permit subject to conditions and has indicated that the conditions are acceptable.

84 I accept Mr Keen's view that the information supporting the application is somewhat scant insofar as it relates to the vegetation removal issue. In my view, in cases where a permit is required to remove native vegetation under clause 52.17, the documentation supporting such proposal should give a reasonably clear indication as to what is to be removed. I would expect major trees to be identified. Whilst it would be more difficult to identify each plant forming understorey vegetation, I would expect that there should be some indication as to the nature and quality of the understorey and an estimate of the amount to be removed.

85 In this case, the area where vegetation removal per se is to occur is reasonably well defined; being where the car park, staging area etc. are to be provided. To this extent, it would seem reasonable to accept DSE's assessment of the net gain "offset" required, that is, the protection of 1 hectare elsewhere on the parent property.

86 The more difficult issue with this proposal relates to the environmental impact of human activity on the site. Vegetation removal per se is not proposed on the vast proportion of the site; however, it would be somewhat naïve not to think that the activities associated with the proposed use have the potential to detract substantially from the site's environmental qualities. In this regard, I am specifically referring to the impact of human traffic on the understorey vegetation.

87 There is no doubt that the understorey planting forms an important part of the site's environmental values. In particular, understorey planting contributes to the habitat value, particularly for smaller species. I think that the importance of the understorey to the site's environmental values is reflecting in DSE's conditions which seem to be aimed at minimising disturbance. The cause of that disturbance is human foot traffic trampling on the delicate understorey planting. In this case, the scenario is one whereby there could be up to 50 players plus referees on any part of the site at any one time; with up to 100 players per day on a 7 day per week basis. Whilst I appreciate that the site is large and that several playing fields could be accommodated, I am unable to conclude that the potential for significant damage to the site's environmental values would not be high.

88 That having been said, a factor that complicates the consideration of this issue is the zoning of the land and its potential to be used for rural purposes without the need for further permit. It has already been indicated by the permit applicant that the parent property is to be used for a form of animal husbandry; that is, ostrich farming. The zone provisions are such that this activity is "as of right". There are no overlay controls that provide protection. Whilst the policies referred to by Mr Ludeman and Mr Keen seek outcomes whereby plants, habitats and movement corridors are protected, the statutory controls in place make it difficult to facilitate such an outcome, particularly when the purpose of the zone contemplates the use of land for extensive animal husbandry. This situation can be contrasted with the provisions applicable to the Environmental Rural Zone, the purpose of which includes encouraging development and use that takes into account the land's environmental sensitivity and biodiversity whilst extensive animal husbandry is not "as of right".

89 There is nothing to prevent livestock, whether ostriches or some other form of cattle, being kept on the property. There is nothing to prevent this site from being used for grazing. Perhaps the amount of stock would not be at the same level as one would expect on cleared pasture; however, I would think that even keeping modest amounts of livestock on the site would give rise to a loss of its environmental values.

90 I am also in no doubt that grazing activity could also have substantial impacts on the environmental values of the site with livestock trampling on understorey planting and possibly stripping larger trees of their bark. It is not surprising that in requiring the applicant to protect 1 hectare of the parent property for net gain "offset" purposes, DSE have specifically cited the "exclusion from grazing" as one of the activities that are not to be conducted on the protected area.

91 It seemed to me that by land large, the potential impacts associated with "as of right" activity was not properly entertained by the council and the objectors. It seemed to me that the assumption made by a number of the objectors was that the land could only be used for what is effectively a rural residential purpose and that such use would not result in any substantial environmental impact. I think the applicant's stated intention to use at least part of the site for keeping ostriches shows the vulnerability of the land's environmental values.

92 Whilst I am concerned about the vagueness of some of the requirements put forward by DSE, it seems to me that in principle, the approach that it has adopted is not without merit. In essence, DSE have put forward a regime of conditions which would control or regulate the proposed use with a view toward reducing the environmental impact. Assuming that the use could be "controlled" or "managed" to minimise the potential for substantial environmental damage, then I could see benefit in granting a permit with conditions to facilitate such an outcome.

93 However, the proposal presents 2 difficulties in this regard.

94 First, the requirements set out in the suggested DSE conditions are, in my view, so vague and unrealistic that I doubt that any reasonable person or applicant would appreciate what is required. Examples of this include requirements that native vegetation removal shall be kept to the minimum extent required; vegetation and the applicant must control vermin and weeds to the satisfaction of the council and DSE. I also have doubts that players engaged in paintball games will see the possibility of trampling on understorey as something that should be the focus of their attention.

95 It is also recommended that playing fields should be rotated "when and if" excessive bare ground appears, weed invasion or destruction of understorey occurs and soil moisture is high thus increasing the probability of disturbance. The question is, who is to make the judgement as to when the impacts are acceptable or not? For example, who will make the judgement as to what is considered to be an unacceptable level of "bare ground"? What constitutes weed invasion? And when is understorey considered to be destroyed?

96 A second difficulty I have is that nothing has been produced to support the application on this issue. I would have thought that a management plan based on an appropriate assessment of the land's environmental qualities would be put forward in support of a proposal like this. The assessment would, in particular, identify the site's attributes and its environmental sensitivity as well as making an assessment of how a use like this could be accommodated. The area suitable for fields of play could be identified as well as some understanding as to how this area would be managed in terms of rotation; how often they can be used; when they can be used (for example is there are seasonal factors to be considered) etc. The plan would deal in detail with issues such as those to covered by DSE's conditions, but providing a greater degree of certainty as to what is expected in terms of management of the site.

97 The conclusion that I have reached with respect to the environmental issue is that I see some merit in allowing the proposed use provided that it can be demonstrated that the environmental impacts are manageable. I have reached this conclusion having regard to the nature of the planning controls that apply, and in particular, the potential for the site's environmental qualities to be compromised by "as of right" activity. The grant of a permit subject to a well founded management plan would, in my view, provide the site's environmental qualities with protection, an outcome that I consider desirable.

98 The overall conclusion that I have reached in this case is that a permit should not be granted. In my view, the use is one which can be contemplated on land zoned for rural purposes. However, the level of activity proposed is too intense having regard to the access from Crawford Road. Further, I remain unconvinced that the environmental qualities of the land should be sacrificed simply because of the nature of the planning controls in place; nor do I consider the regime of conditions put forward by DSE to be appropriate.

99 However, based on the planning scheme's controls as they stand, the policies that apply and the material before me, I cannot rule out the possibility that there is no scope whatsoever for the site to be used for the purpose proposed. In my view, the upgrading of Crawford's Road and/or the lowering the intensity of the activity on the land may lead me to a different conclusion. Further, a proposal that is underpinned by a proper assessment of the site's environmental qualities and capabilities together with a well thought out management program would be advantageous.

[2] According to Mr Taylor, the applicant has obtained a building permit for the dwelling

[5] This amendment was allowed under clause 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

[6] The applicant was Mr Morsink who is an objector in this case

[8] taking into account existing traffic