Rowe v Greater Geelong CC [2011] VCAT 1772

1. The decision of the Responsible Authority is set aside. In permit application 1271/2010 a permit is granted and directed to be issued for the land at

179 Fellows Road, Point Lonsdale. The permit allows the construction of two dwellings and a two lot subdivision in accordance with the endorsed plans and subject to the conditions set out in Appendix A.

1. The decision of the responsible authority is affirmed. The time for the commencement and the time for the completion of the permitted development is not extended.

The construction of two dwellings and a two lot subdivision

Application P751/2011 under section 77 of the Planning and Environment Act 1987 to review a decision to refuse a permit in permit application 1271/2010. Application P1405/2011 under section 81(1)(a) of the Planning and Environment Act 1987 for review of the refusal or failure of the responsible authority to extend time in respect of permit 948/2005

A planning permit is required to subdivide the land pursuant to Clause 32.01-2 of the Residential 1 Zone.

A planning permit is required to construct two or more dwellings pursuant to Clause 32.01-4 of the Residential 1 Zone.

A planning permit is required to subdivide the land pursuant to Clause 43.02-3 of the Design and Development Overlay.

The most important policies in the resolution of this application are the state and local policies relating to planning for climate change, Clause 13 and clause 21.05-5 in particular.

The subject land is located on the west side of Fellows Road in Point Lonsdale on the Bellarine Peninsula. The site is currently vacant with a dwelling having been recently been demolished. The site has an area of approximately 878 square metres

1. This is an application to review the decision of the responsible authority to refuse permission for construction of two dwellings and a two lot subdivision, at 179 Fellows Road, Point Lonsdale. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:
   1. The proposed subdivision does not accord with Clauses 13 (Environmental Risks), 13.01-1 (Costal Inundation and Erosion), 13.02-1 (Floodplain Management), 21.05-5 (Climate Change) and 21.05-7 (Flooding) of the Greater Geelong Planning Scheme. The proposal will result in the intensification in the development of the land that will be subject to the affects of climate change by the year 2100 including flooding and inundation from storm surges. It is considered the development of multi dwellings and subdivision of land in a low lying area is inappropriate when no mitigation works can be guaranteed. The precautionary principle should be adopted.
2. The parties at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

1. The subject land is located on the west side of Fellows Road in Point Lonsdale on the Bellarine Peninsula. Point Lonsdale, east of Fellows Road is in the Borough of Queenscliff .

1. The site is currently vacant with a dwelling on the land having been recently demolished. The site has an area of approximately 878 square metres.
2. Fellows Road has a residential character dominated by single storey dwellings of varying styles located in a spacious setting with some established vegetation. The street is quite wide with an informal verge with no kerb and channel. This pattern of development is consistent across the wider neighbourhood.

1. This application relates to a permit application proposingthe construction of two single storey, three bedroom dwellings and a two (2) lot subdivision.
2. The dwellings are a mirror image of each other and are designed in a side by side configuration. Each dwelling will have a double garage accessed directly from the road. The frontage set back will be 6.7 metres..
3. The proposed subdivision will divide the land in two.. Both lots will have a frontage of 9.6 metres and an area of approximately 438 square metres. No common property is proposed.

1. This application relates to a request for and extension of time for a permit for a two lot subdivision of the land issued on 22 September 2005. Under this subdivision the lots are one behind the other, with the rear lot having a battle-axe configuration.

1. The significant issue in this application is the vulnerability of the site to storm surge events as a result of climate change an the consequent implications for development or subdivision which would increase the development intensity of the land.
2. In the table below Mr Jones of the Corangamite CMA estimates the 1% AEP storm surge level for the land based on the assumed impacts of climate change used for land use planning. Scenario 2 in the table is an estimate which factors in the predicted increasing incidence of high winds resulting from climate change.

1. Storm surge levels are affected by the state of the tide, the relationship of storm surge levels to tidal conditions is illustrated in the following table provided by Mr Jones. Based on this table the storm surge affecting the land would have a duration of approximately 6 hours.

1. Council and the CMA have assumed site levels varying between 1.60 m and 1.70 m with Fellows Road having a level, at its apex, of approximately 1.60 m. The applicant arranged for a surveyor to take levels on and near the land, the measured levels were somewhat higher than those that have been derived from mapped contour levels. The surveyed levels showed the apex of Fellows Road with a level in the order of 1.95 m, the road verge, at the front of the site having levels in the order of 1.64 m and levels at the rear of the land in the order of 1.78 m.
2. The proposed dwellings can obviously be built with a floor level above that of the estimated stir storm surge level. Mr King advocated a level of 2.35 m primarily on the basis that it is a level which had been accepted elsewhere within Point Lonsdale,. This level would provide a theoretical freeboard of 100 mm, less than the recommended 300 mm. At the peak of the storm surge event access to the dwelling would be inundated, to a depth varying between 290 mm and 600 mm[1].
3. Council and the CMA argue that the risks associated with these storm surge levels is unacceptable, and that there should be no intensification in the development potential of the land.
4. The VPP practice note, Applying For A Planning Permit Under The Flood Provisions. A Guide For Councils, Referral Authorities And Applicants, suggests circumstances that should lead to the refusal of an application for development on flood affected land. Circumstances relevant to this application include
   • it is likely to result in danger to life health and is safety of occupants due to the flooding of the site;
   • it relies on a low level access to and from the site;
   • it is likely to increase the burden not emergency services and the risk to emergency personnel;
5. Clearly an assessment of a proposal having regard to these circumstances requires a judgement to be made about the extent of any danger to residents, the actual difficulties associated with access and the significance of any increase burden on emergency services.
6. Mr Jones relied on the draft policy guideline A Guide For Coastal Floodplain Management Authorities: Assessing development in coastal flood risk areas, June 2010, draft version 2.7 in his assessment..
7. Mr King argues that as the guideline has not been adopted by the Minister or incorporated into the planning scheme little wight should be given to its provisions. I agree that its embryonic status does present some difficulty for the tribunal on the other hand I accept that its risk based approach is a useful approach to the assessment of applications such as these.
8. However, the code seems to strangely single out dual occupancy development vis -a-vis all other forms of infill development. Under the heading, Subdivisions And Dual Occupancies the code provides that increases in dwelling density should be assessed against the 2100 flood hazard and are generally discouraged where the flood hazard at 2100 is predicted to be medium or high. While, under the heading Infill Development, development is to be assessed against the 2040 flood hazard and the code provides that a residential apartment complex is likely to be a viable development when flood hazard is assessed as medium or low.
9. In Suburban Blue Print Pty Ltd v Hobsons Bay CC [2010] VCAT 1272 Member Read was considering a two dwelling proposal in circumstances similar to that of the subject land in this case and in respect of the climate change issue concluded that:
   1. The site is situated in an area where there are possibly hundreds of existing dwellings with floor levels below the desirable 2.94 metres AHD that would give a 300mm freeboard above the adopted 2100 sea level. There is no requirement for a planning permit along the Altona foreshore area for single dwellings on lots of 500 square metres or more and, consequently, such dwellings can be constructed without regard to any future sea level rise.
   2. This proposal would result in the addition of a second dwelling to this site, with both dwellings having minimum floor levels close to that which would satisfy the requirements of Clause 15.08; this in contrast to a single new dwelling that need not comply with this policy. When Council's Planning Scheme and Corporate Plan are amended to include more specific policies that address the challenge of future sea level rise in Altona they will, importantly, have to also address the problem of the existing large stock of housing that is set at a too-low level. Mr. Glossop submitted that the addition of an extra dwelling with an almost-appropriate, raised floor level would not impose any additional costs on the community at any point in the future.
   3. In applying the precautionary principle, I have therefore taken account of the fact that future policy to address rising sea levels will, most importantly in this location, have to deal with the inundation of extensive areas of existing housing stock. It seems reasonable to conclude that, in this context, a proposal for an additional dwelling with both dwellings now having almost-acceptable floor levels and possibly floodable basements is acceptable.
10. In P2514 2010 Trevor Homes Pty Ltd v Greater Geelong I refused to allow an extension of time of a permit or two dwellings on land on at the periphery of Portarlington township, because of my view in relation to the risks associated with climate change. In that case the sole access route to the land was likely to be inundated to a depth of approximately 1 m. Access in Trevor Homes would have had a high flood hazard rating.

1. According to the evidence before me a substantial area of Point Lonsdale will be subject to in inundation by 2100 as a result of storm surge events. In this context an application for a dual occupancy does not represent a significant change to the intensity of development in the affected area. There would need to be evidence that over time this type of development is likely to lead to very significant changes in population densities and in the number of households in the affected area of Point Lonsdale before you could reasonably conclude that a significantly greater risk arises.
2. There was no evidence that there is a significant pressure for medium density redevelopment in point Lonsdale likely to lead to significant population changes.

1. The Council submits that there are at present no plans to adapt to climate change as it affects the Point Lonsdale township and consequently had no regard to the possibility of adaptation in its decision.
2. Mr Reid in Suburban Blue Print in effect had regard to the likelihood of adaptation measures being employed in circumstances where there are large populations of people in houses likely to be affected by inundation as a consequence of climate change by 2100.
3. I think that this is the correct approach. In relation to climate change we are working on a 90 year time horizon. In the case of Point Lonsdale I think it is likely that adaptation measures will be adopted to reduce the extent of inundation in Point Lonsdale by 2100.
4. In any event, physical measures to limit inundation are not the only measures which could assist in adaptation. It is even more likely that by 2100 there will be highly sophisticated forecasting and early warning systems. A householder in this case having notice of the forecast storm surge event will have the option of leaving before inundation occurs, or staying, in the knowledge that the dwelling will not be inundated and that the access route to the property is only likely to be flood affected for a period of approximately 6 hours.

Conclusion in relation to climate change vulnerability.

1. By 2100 the estimated storm surge event will result in a medium flood hazard on and near the subject land. Dwellings on the subject land can be developed so that they are not significantly at risk of inundation as a result of a storm surge event by 2100. A proposal to build two dwellings on the subject land does not represent a significant intensification of development within the affected area of Point Lonsdale. In my mind it is probable that by 2100 there will be adaptation measures which significantly reduce the impact of inundation as a consequence of climate change in point Lonsdale.
2. For these reasons is my conclusion that vulnerability to climate change is no basis for refusing the proposal for the development of two dwellings and the subsequent subdivision.
3. However, I do not propose to allow the application in respect of councils refusal to extend time for the completion of development permitted by the 2005 planning permit. In this application, I am only able to extend the time within which it development is completed. I am not able to modify the permit to include additional conditions which I think would be required to make this permission for subdivision satisfactory having regard to the new provisions of the planning scheme as they relate to the effects of climate change.[2]

1. Council did not oppose the proposed two dwelling development for any reason other than the climate change consideration. At the hearing, I expressed concern about the way in which the streetscape view of the proposed dwellings is dominated by the provision of two double garages at the frontage of the dwellings and the associated driveways. Council expressed no concern about this potential outcome.
2. The applicant developed a similar side-by-side dual occupancy development, with similar garages, a short distance north in Fellows Road. I accept that the architecture of the dwellings is quite pleasing, and expect that a similar outcome will result in this case.
3. I am of the opinion that the streetscape of Fellows Road would be significantly damaged if this development style became the prevalent development style in the street. Council needs to carefully consider the streetscape outcome it is seeking to achieve. A streetscape in which:
   1. garages are the dominant building element,
   2. landscaping is compromised by multiple driveways and
   3. street tree planting and on street car parking is also compromised by multiple vehicle crossings;

1. I accept that in isolation the outcome is not so unfortunate that this individual application should be necessarily be refused, particularly in a context where the Council has during the course of the application raised no objection to the intended outcome. I will impose additional conditions to manage the visual dominance of car parking infrastructure at the front of the site.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the council in relation to 2010 permit application should be set aside and the decision of the council in relation to 2005 permit should be affirmed.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

1. Before the development start(s), amended plans must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
   • (a) Floor level being not less than 2.35 metres AHD; and
   • (b) The driveways being no more than 3 metres wide at the frontage of the land.
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

1. All stormwater runoff must be collected and discharged on site via an appropriate infiltration system/soak pit, to the satisfaction of the Responsible Authority. The structure must be designed and certified by a suitably qualified engineer. The design must:
   • (a) Be supported by appropriate soil and percolation tests;
   • (b) Have regard to WSUD Engineering Procedures: Stormwater (CSIRO, 2005), and
   • (c) Cater for flows up to, and including, the critical 10 year ARI rainfall event.
2. Prior to the occupation of the dwellings, the developer must, unless otherwise approved by the Responsible Authority:
   • (a) Construct a soakage pit on each dwelling to retain all stormwater runoff on site;
   • (b) Construct a vehicle crossing for each dwelling in accordance with relevant Council standards.

All to the satisfaction of the Responsible Authority.

1. Prior to the commencement of the development, three (3) copies of a landscape plan prepared by a suitably qualified or experienced, person to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority. The plan(s) must be drawn to scale and show:
   • (a) A landscape outcome which reduces the visual prominence of the proposed garages and driveways in the streetscape.
   • (b) Details of surface finishes of pathways and driveways;
   • (c) A planting schedule of all proposed trees, shrubs and ground covers including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
   • (d) Landscaping and planting within all open areas of the site;

When approved, the plan will be endorsed and form part of the permit, all to the satisfaction of the Responsible Authority.

1. Prior to the occupation of the dwellings, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
2. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority.

1. The layout and site dimensions of the proposed subdivision as shown on the endorsed plan(s) must not be altered or modified without the written consent of the Responsible Authority. There are no requirements to alter or modify the endorsed plan if a plan is certified under the provisions of the Subdivision Act 1988 that is generally in accordance with the endorsed plans.

1. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.
2. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
3. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

1. Prior to the issue of Statement of Compliance for the subdivision, the developer must, unless otherwise approved by the Responsible Authority:
   • (a) Construct a soakage pit on each lot to retain all stormwater runoff on site;
   • (b) Construct a vehicle crossing for each lot in accordance with relevant Council standards.

All to the satisfaction of the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development of the dwellings hereby approved has not commenced within two (2) years of the date of this permit
   • (b) The plan of subdivision has not been certified within two (2) years of the date of this permit.
   • (c) The development of the dwellings hereby approved is not completed within four years of the date of this permit.
   • (d) A statement of compliance is not issued within five (5) years of the date of certification.

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

[1] Mr King tabled plans showing how floor levels would be raised if the development was to proceed. The plan shows garage floor levels being raised. Therefore, in my opinion it is likely that the construction of a driveway and crossover will result in a maximum depth less than 600 mm.

[2] A basis of council's refusal to extend time related to the power of the council and on appeal the Tribunal, to extend the time within which a plan of subdivision is certified. I think this consideration is misconceived but I do not need to consider the question because of the decision I have made in this matter.