MEDIUM NEUTRAL CITATIONS: [2003] VCAT 1272

The Responsible Authority's decision, particularly in relation to grounds 4 and 5 of the refusal notice is affirmed. No permit shall issue.

For Responsible Authority: Mr C Harty, Town Planner

1. This is an Application for Review pursuant to Section 77 of the Planning and Environment Act 1987 against the decision of Colac Otway Shire Council which refused Application for Permit No. P02/122 for construction of three 2 storey dwellings (Group Accommodation).

1. The site is subject to a "Wildfire Management Overlay" and the proposal fails to meet the requirements of that overlay due to-

* failure to provide easily accessible water for fire fighting purposes, in particular, the water tanks are proposed to be sited in the subfloor spaces which makes it especially hazardous for the CFA to obtain water if the building itself is on fire,

* inadequate access to the site for emergency vehicles due to the surface of Old Tuxion Road being unstable, in part due to its steepness,

* inadequate access to the site for emergency vehicles due to the lack of passing lanes in Old Tuxion Road,

* inadequate access to the site for emergency vehicles due to the lack of an all weather turning circle at the and of Old Tuxion Road,

* inadequate access to the site for emergency vehicles as a result of the narrowness of Old Tuxion Road making it difficult for vehicles to pass,

* the siting of the proposed dwellings and the large decks on all sides fail to minimize the fire risk to life and property,

2. The site is subject to an "Erosion Management Overlay". The proposed development may tend to concentrate the flow of wastewater, stormwater and/or water overflowing from full water tanks and this concentration of water might unreasonably place the site and/or neighbouring properties at risk from erosion.

3. The site is in an "Environmental Rural Zone" and the proposal is unable to satisfy the requirements of that zone that the development conserves, maintains and enhances flora, fauna, soil and water quality due to-

* the extensive earthworks required to accommodate the dwelling,

* wastewater, stormwater and/or effluent, may adversely effect the water quality of Milford Creek,

* wastewater, stormwater and/or effluent may pass onto neighbouring properties as a result of the steepness of the site,

* the positioning of the proposed dwellings is such that this will conflict with the requirement of the "Wildfire Management Overlay" that there be a "building protection zone" where ground fuel and shrubs are managed to minimize the fire intensity in the vicinity of buildings.

4. The site is outside the area of Apollo Bay identified, in the Municipal Strategic Statement as being preferred for tourism developments.

5. The proposal is inconsistent with the Victorian Coastal Strategy as it is outside the development nodes in which such developments should be sited.

6. The car parking is inadequate, as it will be necessary for the vehicles at units 1 and 2 to reverse from the parking area unto the steep and narrow Old Tuxion Road to exit the property, and

7. It is the combination of the above factors, together with the topography of the site, that make the proposal both inappropriate and an overdevelopment of the site.

3. It is proposed to erect three detached two storey dwellings on the site behind an existing single storey dwelling. Each dwelling would comprise retreat, two bedrooms, bathroom and WC at lower deck level, and main bedroom, ensuite, dining, living and kitchen at upper level. Large decks would surround the upper level and smaller decks would surround on the southern, eastern and western boundaries.

4. Two car parking spaces would be provided for each dwelling with provision for car manoeuvring to enable vehicles to exit the site in a forward motion to Old Tuxion Road. Provision would be made for individual water storage below each dwelling plus three water tanks on the site for fire fighting purposes.

5. Each dwelling will be cut into the land so that from Old Tuxion Road only the upper most portion will be visible giving the appearance of a single storey dwelling although when viewed from the east each building will appear as a two storey structure.

6. The Applicant submitted geotechnical reports regarding Landslip Risk and Waste disposal. Both of these reports gave conditional support.

7. The Applicant also tabled a landscaping plan to complement the development.

8. The subject site is located on the south-eastern corner of Tuxion Road (Carwood Street) and Old Tuxion Road. It is an irregular shape property roughly described as a battleaxe shape totalling 1.87 hectares. The development will take place in the axe handle part of the site. The southern portion of the site is narrow with a width of about 20 metres opening to about 25 or 30 metres and then flaring up to a much wider expanse. This flaring also coincides with a dramatic change in levels on the site, so the southern portion essentially falls in a southerly direction and the northern portion virtually falls in a north-easterly direction. That part of the site to be developed has a slope about 15 degrees and currently contains a weatherboard dwelling with several outbuildings at its southern or Tuxion Road abuttal.

"The subject site and surrounding properties are approximately half way up the foothills to the summit of ranges that form a visually stunning backdrop to the township of Apollo Bay. The subject site and surrounding land is generally very steep and accordingly, has spectacular and unrestricted views towards the north, east and south overlooking Apollo Bay and the waters of Bass Strait/Southern Ocean and towards Cape Patton and the Great Ocean Road."

10. Land to the west of the subject site on Old Tuxion Road comprise two dwellings, one dwelling is oriented toward Tuxion Road and is on a relatively small rural residential lot. The Tribunal was told it was used primarily for holiday purposes. A further single storey dwelling Road on a rural residential lot is located about 50 metres up Old Tuxion Road. The Tribunal was told that has been occupied by the current owners for the past 25 or more years.

11. There are also other dwellings further along Old Tuxion Road. One dwelling is occupied by Mr Jevons' family as a family home/holiday residence and until about three years ago the land was operated for sheep farming.

12. Land to the south-east of the subject site is a rural residential landholding which is also occupied as a gallery. It is much lower down in elevation but forms part of a rural backdrop to the Apollo Bay township.

13. The subject site is zoned Environmental Rural Zone under the Colac-Otway Planning Scheme. The relevant purposes of the zone are:

* To encourage development and use of 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 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.

14. A permit is required to use land for accommodation under Section 35.02-1 of the Planning Scheme. A permit is also required to develop buildings and works unde Clause 35.02-3. There are various Decision Guidelines in Clause 35.02-6.

15. The site is also partially covered by a Wildfire Management Overlay. It is also partly covered by an Erosion Management Overlay.

16. A permit is required for accommodation under the Wildfire Management Overlay and a permit is also required under the Erosion Management Overlay for buildings and works. There are some exemption to rights to object and seek a review the decision of the Responsible Authority in these matters.

17. The Tribunal was told that the Responsible Authority had exhibited Amendment C8 to the Planning Scheme which would introduce tighter requirements relating to Landslip Assessment for new planning proposals and this would also increase the area to the overlay. Whilst there would currently be a statutory requirement for permission to develop part of the site under the landslip control the proposed amendment would see the entire site covered by such requirement

18. There are various planning controls and policies of relevance in this application including:

* Clause 21.04-3 Settlement Patterns and Rural Living

* Clause 24.04-1 Apollo Bay (including the Apollo Bay Framework Plan)

19. Mr Harty on behalf of the Responsible Authority, argued that the Responsible Authority considered that the development of the proposed dwellings on this site is inappropriate. He claimed it poses unacceptable environmental risks, relating to erosion, containment of wastewater, and impact on water quality of Milford Creek. He advised information presented by the applicant had not allayed Council's concerns in this regard.

20. Mr Harty also argued that the Council considered the proposal does not meet fire protection objectives, and may increase the threat of life and surrounding property from wildfire, given the development's proposed siting, design and access and he also argued the proposal is inconsistent with the Municipal Strategic Statement and the Victorian Coastal Strategy.

21. Mr Harty argued that the development of three dwellings on a cleared and exposed rural site outside the town limits of Apollo Bay is inappropriate, would lead to a poor planning outcome in terms of sustainable management of the foothills region behind the town and would add an additional built form feature in a predominantly rural and dramatic landscape backdrop to Apollo Bay.

22. Mr Harty also criticised the proposed carparking and claimed it was unsafe and inadequate. He argued it would require reversing from two of the dwellings into Old Tuxion Road and that due to the steepness of Old Tuxion Road, such actions would be unsafe.

23. Mr Harty referred to the Colac-Otway Strategic Master Plan and the Apollo Bay Structure Plan to support his argument that the site was outside the urban area of Apollo Bay, which was the designated node for tourist development..

24. Ms Beaumont raised various criticisms of the proposed development including lack of reticulated water supplies, lack of sewerage, likely loss of privacy, impact of native animals, impact on traffic conditions in Old Tuxion Road and claimed the proposal was of far too high density for this rural locality. Ms Beaumont also claimed the proposal would have a negative impact on the coastal/environmental location. She referred to the non-compliance with the Victorian Coastal Strategy which directed development to existing towns.

25. Ms Beaumont also raised concern about access for vehicles, difficulties for visitors/tourists to appreciate traffic issues along Old Tuxion Road, and also raised concern about access for emergency vehicles.

26. Mr Jevons raised concerns about the apparent non-compliance with the Victorian Coastal Strategy and various Local planning policies including Clause 21.02 and Clause 22.05-3. He also expressed concern about Wildfire Management and the ability of the development to cope in an area which has disturbance and is prone to erosion. He claimed the proposal was of inappropriately high density and was inappropriate in this section of rural area. He also raised concerns about difficult traffic access and referred to the trouble tourist have in utilising Old Tuxion Road. He cited examples where tow trucks are frequently required to attend to tow vehicles out of verges along the road.

27. Ms Smith raised concern about instability of soil condition of the site, potential for dogs and pets to impact on local rural activities, claimed the proposal was inconsistent with the Victorian Coastal Strategy and local planning controls. Similarly she raised concerns about access, potential flooding of her site and carparking.

28. Ms Rigo on behalf of the Permit Applicant, made detailed written submissions about how the Applicant had tabled geotechnical reports to explain the site's suitability of landslip basis and its capability of treating all wastewater. Ms Rigo tabled landscaping plans to demonstrate that landscaping details could meet various Council requirements and she also tabled correspondence from the Fire Brigade to demonstrate that the CFA did not object to the proposal. She also tabled a letter from a fire expert to demonstrate that the development would not pose a threat to cases of Wildfire.

29. Ms Rigo's principal arguments were that the proposed development and use of the land will provide a number of key social, environmental and economic benefits including:

* The protection of the scenic qualities of the area through strategic siting and design of buildings and works;

* The enhancement of landscape and habitat values of the area through the extensive relandscaping program utilising native plant species;

* The provision of a high quality accommodation facility which will support the regional tourist industry and reinforce recreation and tourist role of the locality;

* The inclusion of measures to properly treat stormwater and contain wastewater on site in accordance with relevant standards and guidelines; and

* Creating social networks in the local community where there are common opportunities for the broader marketing of Apollo Bay as a total package for tourists.

30. Having regard to a number of matters raised by Objectors and the Responsible Authority, I consider there is essentially one major issue that needs addressing in this application and that concerns the appropriateness of locating a tourist facility outside the township of Apollo Bay. Matters relating to control of wastewater, carparking, rubbish collection, access, landscape, soil stability, and Wildfire Management have been appropriately addressed in the application either by the Architect or by Ms Rigo in her detailed written submission. I would go far as to suggest if this site was located about 300 or 400 metres eastwards down Tuxion Road (Carwood Road), I would have no hesitation in granting a permit for the proposed use and development. I think for all intents and purposes, the Architect has satisfactorily met the physical challenges of the site. I see no objection to the materials, colours or finishes of the proposed development and I consider the landscaping was adequately addressed.

31. Where I consider this proposal fails is principally in regard to non-compliance with Clause 21.4-10 of the Local Policy and to a lesser extent the Victorian Coastal Policy. The particular area in Clause 21.4-10 referred to is the `implementation to be achieved' section in that clause and in particular:

* Concentrating residential development within existing zoned (sic) areas; and

* Limiting further subdivision and development in the low lying area between Apollo Bay and the surrounding hills.

32. An examination of the Apollo Bay Framework Plan attached to Clause 21.04 clearly show the subject site outside the urban area of Apollo Bay, and a visual inspection of the site demonstrates its detachment from the urban area. It is, in reality, located along the lower reaches of the foothills. I consider therefore that the policy breach is fatal to the application. Whilst there are other policy initiatives supporting tourism activities, these should also be read in conjunction with Clause 21.04-10.

33. I am further guided by the Draft Apollo Bay Structure Plan which forms part of the Council's Municipal Strategic Statement review. Whilst I would not accept this document as a seriously entertained planning proposal as it is yet to be examined by an Independent Panel, there are a number of matters in the Draft Apollo Bay Structure Plan which indicate current thinking of the Shire about the current and future development trends for Apollo Bay. In particular there is a notation which is located close to the subject site which says "Protect the foothills" and it also indicates a limit of urban grown to an area east of the subject site. Whilst there may be some need for finer tuning of this Structure Plan following review by an Independent Panel, there appears to be a number of logical matters addressed in this Draft Structure Plan which are worthy of consideration and debate.

34. There was also concern raised by Objectors and the Responsible Authority about the proposal's inconsistency with the Victorian Coastal Strategy. I note in the Strategy that Apollo Bay is listed as an Activity Centre and therefore it is expected that there would be development in and around the Apollo Bay township. However I note the subject site is outside the town's urban perimeter and the proposed development intrude onto the foothills around Apollo Bay. I am somewhat concerned about allowing a development which would further concentrate a residential form of development outside the main urban area of Apollo Bay without sound reasoning.

35. During the hearing Ms Rigo pointed to a number of other residential developments and a recent tourist accommodation facility further up Tuxion Road. Firstly, the residential development on Tuxion/Old Tuxion Road was undertaken some 25 to 30 years ago, long before current planning controls and policies were in place. Secondly, the tourist accommodation approved up Old Tuxion Road was not approved by the Tribunal, and whilst in some respects, some people may consider it a precedent for this development. I do not consider development of one inappropriate form of development as justification for breaching current planning policies existing in the Planning Scheme (and which appears to be reinforced by the Draft Municipal Strategic Review documentation).