1. The decision of the Responsible Authority is affirmed.
2. Planning Permit No. P204-0655a must not be amended.

• Mr Michael Deidun, Town Planner of CPG Australia Pty Ltd
• Ms Deborah Parkhouse, Lay witness as owner of the land affected by the review application.

Original permit was to construct 1 house across two lots, C/A22 and C/A19B. This permit was amended in 2006 to include a change to the description of the land to Lot 1 (C/A 19B and Part C/A 22). The change to Lot 1 reflected a re-subdivision (permit P206-0025) of 3 lots, C/A 19B, C/A 22 and C/A 23 to two lots. This re-subdivision never occurred and the subdivision permit has now lapsed.

The proposed amendment now sought is to change the land description to only C/A19B.

Section 77 Planning and Environment Act 1987

C/A19B has an area of 2.42 Ha. C/A22 has an area of approximately 4.8 Ha. The two lots are now held in separate ownership on separate title. Neither lot has a house on it. Both are vegetated to the rear of the lot but have cleared areas near Amblers Lane. C/A23 has a house to the front of the property.

During the hearing I noted that the application to amend the permit had not been referred to relevant servicing agencies. I subsequently ordered the responsible authority to refer the application to the relevant agencies. As a result, letters were then received from Southern Rural Water and Western Water advising they would have objected to the permit amendment application. The CFA advised it would not have objected, but requested conditions to be placed on the permit.

Upon receipt of the referral comments I made further order for any party seeking to make further written or oral submission about the comments of the authorities to advise the Tribunal by 1 March 2010.

None of the authorities requested to be heard through additional hearing or made further written submission.

Ms Parkhouse and Mr Crawford made further written submission to the Tribunal in response to the referral letters of Southern Rural Water and Western Water in an electronic mailed letter and facsimile dated 19 February 2010.

Rozen v Macedon Ranges SC (Red Dot) [2009] VCAT 2746

1. In 2004 Macedon Ranges Shire Council issued a planning permit[1] for one dwelling to be constructed land across two titles, (C/A19B and C/A22) of Section 12, Parish of Blackwood, commonly referred to as 75 Amblers Lane, East Trentham. The plans associated with this permit indicated a dwelling building zone located across the common title boundary. All of C/A19B and C/A22 formed the planning unit indicated on the plans of the permit.
2. A planning permit to re-align and consolidate title boundaries between these two lots and a third adjoining lot (C/A23) was then issued by Council on 18 September 2006[2]. This permit realigned the three lots (C/As 19B, 22 and 23) into two lots, being Lot 1 and Lot 2, PS 546177N. Council also amended the dwelling planning permit[3] to make reference to Lot 1 of the new plan of subdivision. The amended dwelling planning permit is P204 - 0655a, and endorsed a plan aligning with Lot 1, being C/A19B and Part C/A22.
3. The re-subdivision of the three lots into two lots never proceeded so the three lots (C/A19B, C/A22 and C/A23) remain separate titles. A house exists on C/A23. No houses exist on C/A19B or C/A22. The permit[4] for a dwelling across C/A19B and part of C/A22 continues to exist and has been extended to 25 October 2010.
4. The matter before me is to review Macedon Ranges Shire Council's refusal to further amend the amended planning permit, P204-0655a to refer the land description for the dwelling as only C/A19B.
5. The Council refused to further amend the permit to only relate to C/A19B on the basis that:

1. The proposed amendment is not in keeping with the purpose of the Rural Conservation Zone Schedule 1. 2. The amendment would create the potential for an additional dwelling that was never part of the agreed outcome for the area.

1. The amendment would increase the density of development within the area that is not encouraged under the zone.

1. The original permit intent was to restrict development of the three lots to two dwellings.

1. Ms Sumner submitted Council's primary concern was that the amended permit would result in an intensification of land use from that previously approved and lead to three houses across three lots when the existing approval provides two houses across three lots.
2. Mr Crawford submitted the approval of the amendment does not increase the 'dwelling entitlement' of the land as no additional dwelling has been applied for.
3. C/A19B is 2.42 Ha (6 acres). C/A22 and C/A23 are both 4.84 Ha (12 acres). The existing amended permit relies on a plan of subdivision that has no planning permit[5], but would provide for the dwelling to be located on Lot 1 with an area of 4.11 Ha (10.15 acres) and the remaining are of C/A 22 being combined with C/A 23 to form an 8.12 Ha (20 acre) lot.
4. Ms Parkhouse with Mr Crawford submitted C/A22 had been sold and therefore was no longer in common ownership with C/A19B that would provide for the consolidation of the land.
5. The existing permit includes conditions that a land management plan must be lodged and implemented through an agreement with Council for the on going management of native vegetation, weed suppression and erosion management.
6. Whilst it is not before me to consider a dwelling permit approval for C/A22, I do need to address the consequences of the amendment application that is before me to reduce the land area to C/A19B only and to leave C/A22 a separate vacant, 4.8Ha lot between two dwelling lots.
7. In his evidence on behalf of the permit applicant, Mr Deidun clearly acknowledged that a likely consequence of amending the permit to only refer to C/A19B is that a dwelling will be sought on C/A22. It was his opinion that such intensification could be accommodated by the zone and overlay provisions.
8. I find I must address the direct consequences of approving the amendment or not. If the amendment is approved:
   • A dwelling and associated land management plan will be to be tied to only 2.42Ha rather than 4.11Ha of land.
   • The 4.8Ha of land (C/A22) will remain vacant with no land management plan between two dwelling lots (C/A19B and C/A23), or
   • C/A22 will be subject to future assessment for a dwelling or other development on the basis that retaining this land vacant and without a management plan is untenable.
9. Alternatively, if the amendment is not approved, a future permit for a dwelling on C/A22 would need to continue to address how the land management issues accommodated for in the existing permit would be resolved.
10. Hence, whilst a third dwelling is not before me, I find I do need to consider the consequences of approving the amendment to construct the dwelling only on only 2.42Ha (forming C/A19B) and leaving C/A22 a vacant 4.8Ha lot between two, rural dwelling lots.

1. Ms Sumner and Mr Crawford acknowledged at the hearing that the amendment to the permit should have been referred to Western Water as the Catchment Management Authority as well as the Country Fire Authority. I issued an interim order directing Council to refer the application to these authorities. Both Western Water and Southern Rural Water have now advised in writing that had they been referred the application as part of the amendment of permit consideration process they would have objected to the amendment application. This was on the basis that the amendment:
   1. Was inconsistent with the guidelines for planning permits in water catchment areas[6] and the precautionary principles to minimise cumulative risks associated with increase in housing densities in catchment areas; and
   2. Would be seen to be giving in principle support to another dwelling being built on C/A22 that would further increase housing densities in the catchment area.
2. Upon receiving referral comments, Ms Parkhouse and Mr Crawford made further written submission to the Tribunal about the objections of the authorities. I have reviewed these further written submission and the submissions made in the hearing and concluded the issue of water catchment protection is a relevant consideration.

1. Mr Crawford submitted that since the approval of the dwelling permit, Council had since approved a number of other dwellings nearby on smaller lots and that to some extent Ms Parkhouse was only seeking to obtain a permit similar to what others had received. He contested there was some element of equity or fairness to be sought.
2. As is often noted by Members of the Tribunal each site must be addressed on its merits and I cannot simply approve the amended permit on the basis that Council has permitted dwellings on other small lots in the area. I must assess the amendment to the permit on the provisions of the planning scheme as they relate to this site.

1. From the above, I have determined I must address whether the smaller land area for the dwelling:
   1. will remain consistent with the objectives and provisions of the zone to address land management; and
   2. will be consistent with local and state water catchment protection policies.

Will the amended area for the dwelling remain consistent with the objectives of the zone to address land management?

1. Mr Deidun provided evidence that the location of a dwelling on the smaller lot, with acknowledgement that this may lead to opportunity for a total of three dwellings across the three lots were consistent with the purpose of the site zone and overlay provisions.
2. In summary this was because:

1. The zone purpose, whilst including provision for agriculture, was not directly relevant to this site as the lots are already too small to farm productively. The area is already characterised as a rural living environment. 2. The proposed location of the dwelling on CA 19B would not affect native vegetation or existing conditions to protect this vegetation on either C/A19B or C/A22.

1. The dwelling on a smaller lot was consistent with sustainable land management, as it would facilitate a dwelling on currently vacant land that was too small to farm.

1. The three existing lots, identified in a potable water supply catchment area, could accommodate a total of three dwellings, as the nearest creek was 300m from the rear boundary of the site and 600m from the proposed siting of the dwelling. The dwelling location exceeded Council's policy requirements in Clause 22.03 of the planning scheme.
2. The Rural Conservation Zone, combined with Schedule 1 has a number of purposes. Most of these relate to environmental imperatives of protecting the areas of potable water supply, the landscape and environmental qualities of the land and minimising the impact of development on these values[7]. I address the issues of water quality below at Paragraph 36 onward. Other land management issues I address below.

1. Mr Crawford submitted along with Mr Deidun's evidence that the difference in land area between the consolidated lot and C/A19B (from 4.11Ha to 2.42Ha) was insignificant and therefore there was little difference in the planning merits of the existing permit and the amendment sought.
2. I accept the area is not one in active farming. However, as an area zoned Rural Conservation, the area for a dwelling should also not compromise the ability to sustainability manage the land for vegetation protection, water quality in the catchment and land capability. The zone also requires me to address if the proposed development is compatible with adjoining land uses[8]. A lack of agricultural viability alone does not justify the approval of the amended permit.

1. The approval of a dwelling only on the 2.42Ha of C/A19B would then lead to a dwelling on C/A23, a dwelling on C/A19B and leave the intervening 4.8 hectares of C/A22 vacant. Mr Deidun's evidence acknowledged a relevant planning consideration was whether allowing a dwelling only on C/A19B was acceptable acknowledging that an additional dwelling would likely be sought on C/A22. He then stated that a dwelling on each of the three lots was acceptable.
2. Whilst Council failed to impose a condition on the original permit to consolidate C/A22 and C/A19B. The permit intent however, was clear. It permitted one dwelling across C/A19B and C/A22, with an existing dwelling on C/A23. The permit intention was then acknowledged further by the permit applicant with approval of re-subdivision of the 3 lots into two and the amendment of the dwelling permit to refer to Lot 1 of this subdivision. The fact that the subdivision has now lapsed and one lot sold, is not the result of any change in town planning circumstance that applied to the land when the permit was first issued with pre-amble previously acknowledged and accepted by the permit applicant.
3. If the amendment is approved, it will leave C/A22 as an adjoining separate vacant title with no requirement for a land management plan on any part of this land as currently provided for in the existing dwelling permit. It will also alter the density of dwelling to land on the existing permit from one dwelling on 4.11Ha to one dwelling on 2.42 Ha. It would then leave 4.8Ha on a separate title (C/A22) vacant and unmanaged.
4. If the current permit is retained it will enable one dwelling to be constructed on a 4.11Ha lot, with the remaining 3.15Ha of the existing C/A22 to be either:
   • Consolidated with C/A23 (requiring establishment of Lot 2, PS 546177N),
   • Sought to be separately excised as a separate lot via a new subdivision permit, or
   • A dwelling could be sought to be approved on the 3.15Ha of C/A22 with the remaining Part of C/A22 continuing to be tied to CA19B if no further subdivision occurs.
5. Mr Crawford also submitted that currently there was a problem that with no one living on the land Ms Parkhouse had land management problems such as weed infestation at C/A23 as both C/A19B and C/A22 were vacant. He submitted that placing a house on the land would improve land management.
6. On the other hand the proposed amendment will lead to C/A22 being left vacant with similar arguments then being posed unless a third dwelling to manage C/A22 is approved.
7. I find the purpose of the zone and schedule to the zone is to, where possible, ensure dwellings are located on parcels of land of a suitable size and management regime. Whilst the reduction in the area of dwelling will be relatively small (from 4.11 Ha to 2.42Ha) it further intensifies the use of the land for a dwelling and its associated functions of a dwelling. It also leads to 4.8Ha of land (C/A22) to be left vacant between C/A19B and C/A23. This land will either remain vacant and become a management issue for both the dwelling owners at C/A19B and C/A23 or a permit may be sought to construct a third dwelling. Whilst it is not before me to consider the merits of a third dwelling, I do need to consider the consequences of leaving C/A22 vacant and unmanaged as a result of the proposed amendment.
8. Mr Crawford submitted that the current permit would enable a dwelling to be built within the approved building envelope of the permit that straddles C/A22 and C/A19B. This envelope is sufficiently large that the dwelling could be located totally within C/A19B. Other conditions relating to the dwelling include a land management plan to be submitted and approved for all the land including the part of C/A22 that forms part of the permit. I do not find it a tenable or responsible conclusion to rule that the permit can be amended to only refer to C/A19B when this would then leave management consequences for C/A22 that are currently provided for in the existing permit through provision of the land management plan.
9. Implementing the current permit may leave the remainder of C/A22 vacant and outside the requirements of the management plan. But the remnant area without a land management plan will be smaller, and there is opportunity for the two lots to continue to be managed together. At some point in the future C/A22 may be realigned as previously approved or the owner may seek to create a separate smaller lot for the remnant C/A22 land. Again neither of these subdivision scenarios is before me. I can only address the direct consequences of retaining a dwelling approval with a land management plan encompassing C/A19B and part C/A22 or a approving a dwelling on C/A19B only, thereby leaving all of C/A22 vacant and unmanaged.
10. I find such consequences of amending the permit to only address C/A19B when it currently provides for land management on at least part of C/A22 to be a detrimental outcome that is inconsistent with the purposes of the zone to promote sustainable land management.

Will the amended area of the dwelling be consistent with the Water Catchment provisions?

1. Mr Diedun's evidence was that the dwelling complied with relevant overlay, zone and policy provisions relating to potable water catchments as the land was 300m from the nearest creek with the dwelling site located some 600m from this creek.
2. The most consistent theme of provisions applying to the land is the need to maintain land capability with emphasis on protecting the potable water supply. This is reflected in the zone purpose, the zone schedule purpose and the Environmental Significance Overlay (Schedule 5). All of these direct consideration of land capability, most specifically if the land can sustain the proposed development with the area being in the potable water catchment area.
3. The environmental significance of this area states[9] "The protection of catchments from inappropriate development and the protection of water quality is paramount[10] to the health of the surrounding environment, habitat, vegetation and all urban and rural communities". As recently affirmed in Rozen v Macedon Ranges SC (Red Dot) [2009] VCAT 2746, the protection of potable water catchments is the primary planning concern that will shift the balance of considerations that may affect a proposal.
4. Here, The Tribunal stated "whilst planning must always involve a balancing of conflicting objectives, we have no hesitation in finding that in respect of the Shire's open potable water supply catchments, net community benefit and sustainable development require protection of water quality to be the primary planning consideration. This primacy is explicitly stated in clause 22.01, which states it is policy that:
   • Protection and utilisation of the resources of the policy area for water supply ... must be the primary concern.[11]
5. Both Western Water and Southern Rural Water objected to the permit amendment upon referral of the review application on the basis that the land is smaller than 40Ha which is the minimum size recommended by Guideline 1 of the Guidelines for Planning Permit Applications in Open, Potable Water Supply Catchment Areas, May 2009.
6. Western Water also objected to the amendment on the basis that it would be seen to be giving in principle support to another dwelling being built on the larger of the two lots and would be inconsistent with the precautionary principle associated with cumulative risks associated with any potential increase in dwelling densities.
7. Mr Crawford made further written submission that the comments of Western water were not valid as no additional dwelling was proposed.
8. At the hearing Mr Crawford did table a land capability assessment for on site effluent disposal prepared by Mr Paul Williams. This report is dated November, 2009. Mr Williams did not appear as an expert witness and the report was not tabled prior as expert evidence. At outset I have therefore given limited weight to this report. My subsequent reading of the report is that its findings in any event are not directly relevant to the issues before me. Firstly, on introduction it states it is an assessment for a residence at Lot 1 PS 5461277N, having an area of 4.11 Ha. This is the lot description and approximate area of the existing permit, not the amended permit area sought. Secondly, the report does not assess the impacts of the effluent disposal against the Guideline 1 - Guidelines for Planning Permit Applications in Open, Potable Water Supply Catchment Areas, May 2009 which I consider is the primary policy determinant.
9. I am therefore not satisfied that the report prepared by Mr Williams offers any relevant support to the amendment to the planning permit.
10. Mr Deidun's evidence and further written submission of Ms Parkhouse and Mr Crawford was that the proposed house was well away from any tributary of the rivers that form the water catchment. Likewise, Mr Deidun stated he consider the proposal met the provisions of Clause 22.03, that address protection of water catchments.
11. Clause 22.03 includes purpose "to protect and enhance water quality, both surface and ground water". I find the distance to the creek is therefore not a sole determine as it is both ground water seepage and surface runoff that need to be assessed. Clause 22.03 must be read in conjunction with state policy for water protection. State policy, directs that I must also consider any regional catchment strategies approved under the Catchment and Land Protection Act 1994 and any associated implementation plan or strategy.
12. As detailed in Rozen v Macedon Ranges, the most relevant guideline is Guideline 1 - Guidelines for Planning Permit Applications in Open, Potable Water Supply Catchment Areas, May 2009 that was adopted by the Minister for Planning for the purposes of section 60(1A)(g) of the Planning and Environment Act 1987 and therefore applies to all open, potable water supply catchments declared to be special water supply catchment areas under Division 2 of Part 4 of the Catchment and Land Protection Act 1994.
13. As stated in Rozen v Macedon Ranges the guideline(s):
    1. 50 ...."make it clear that compliance with the Septic Tank Code of Practice is not of itself sufficient, a point that was made by Justice Osborn.[12] They refer to the provisions of the SPPF relating to the importance of water quality in water catchments[13] and section 53M of the Environment Protection Authority 1970, which provides that a municipal council must refuse a septic tank permit if a proposed onsite waste water/septic tank system is contrary to any state environment protection policy or waste management policy. SEPP Waters of Victoria requires the application of the precautionary principle to guide decisions about the protection and management of Victoria's surface waters when considering a permit for a septic tank system. The current Guidelines state:

The proper application of the precautionary principle requires consideration of the cumulative risk of the adverse impact of onsite waste water/septic tank systems on water quality in open, potable water supply catchments resulting from increased dwelling density. [Tribunal emphasis]

1. Mr Crawford's additional written submission was that the precautionary principle adopted in Rozen v Macedon Ranges was not relevant as the dwelling has already been approved. I disagree. A dwelling has been approved, but on a larger lot than was assumed to have resulted from a re-subdivision of land that would have created two lots across the three parcels.
2. The amendment sought will increase the density of dwelling by reducing the area on which the approved dwelling will lie and leave C/A22 a vacant, unmanaged lot between two separate lots, retaining all three original lots. Whilst the cumulative risk is perhaps lower than in Rozen v Macedon Ranges, as it does not directly create additional dwellings or new lots I find the principle remains the same. Whilst the permit amendment will not add to the number of dwellings it will further reduce the area on which the dwelling is to be located, thereby increasing the dwelling density on this site. The land on which the dwelling is to be located is already well below the preferred 40Ha directed by the guideline. I find it difficult to accept that any reduction in the area, thereby increasing the ratio of dwelling to land area is appropriate. It will add to the cumulative decisions that impact potential risks to water quality.

1. Mr Crawford submitted it was not orderly planning to retain the permit in its current form as the land was no longer held in common ownership and the Plan of Subdivision that is detailed in the permit preamble no longer exists. No application, however, has been made to amend the permit to a different form, other than to reduce the land area to C/A19B which I find is inappropriate for reasons I have explained above.
2. The original permit was issued to a land area that encompassed all of C/A19B and C/A22. The permit applicant then initiated the amendment to alter the land area to Lot 1. The fact that the permit applicant has not created new titles from this plan of subdivision and sold the land is a matter for them to address and a risk they took in selling C/A22 when the permit applied to both C/A19B and C/A22 or Part C/A22.
3. It is not for me to make planning decisions based on financial decisions made by the permit applicant, knowing that these would impact their capacity to develop land in accordance with a planning permit. I find it does not make orderly planning to simply alter the permit to accord with the permit applicant's current financial arrangements. I must address the planning merits. On these merits I find it unacceptable to further reduce the land area for the dwelling to only refer to C/A19B and subsequently leave all of C/A22 vacant.
4. I agree a decision to not amend the permit will cause difficulties in progressing the existing permit, but this is a choice the permit applicant made by allowing the subdivision permit to lapse, having already amended the dwelling permit to accord with the subdivision permit, rather than retaining the original permit that referred to all of C/A19B and C/A22.

1. The need to apply the precautionary principle in catchment areas has been now well tested through the Tribunal and reference to the Supreme Court and I find no reason to deter from this approach in the amendment application before me by further reducing the land area to accommodate a dwelling.
2. I am further deterred from amending the permit given the purposes of the zone in which the land lies, including the need to promote sustainable land management. To further reduce the land area would further erode this purpose and leave all of C/A22 without any management plan as currently required by the dwelling permit.
3. It therefore follows that I will uphold the decision of the responsible authority and direct not to amend the permit.

[1] Permit No. P204 - 0655 dated 25 October 2004.

[2] Permit No. P 206-0025 dated 18 September 2006.

[4] As amended by P206-0655a on 12 September, 2006.

[5] The planning permit for the Plan of Subdivision having lapsed.

[6] Guideline 1 - Guidelines for Planning Permit Applications in Open, Potable Water Supply Catchment Areas, May 2009.

[9] ESO Schedule 5 - Statement of Significance.

[11] Rozen v Macedon Ranges SC (Red Dot) [2009] VCAT 2746, Paragraph 33.

[12] [2008] VSC 302 at [50]