Victorian Civil and Administrative Tribunal|2025-10-20

The applicant's submission does not include any detail of how the proposal has addressed the relevant design and siting decision guideline[18] that requires consideration of the proposed location and design buildings used for accommodation to avoid or reduce noise and shadow flicker impacts from the operation of a WEF. There was no shadow flicker or noise evidence provided from the parties. The lack of proper analysis with respect to the relevant matters contained in the decision guidelines is unhelpful.
The applicant relies on the existence of dwellings that are more proximate to the WEF and the suggested inability for it to expand as reasons to support the proposal. I have not been persuaded the existence of these dwellings mean the siting and design of the proposed dwelling is acceptable. There is no evidence or confirmation that the proposed dwelling will not experience any adverse impacts from shadow flicker or noise arising from its proximity to the WEF.
The comparison with the WEF located in South Gippsland Shire provides no assistance in the determination of this application for review. It may well be that the existing WEF has a lesser amenity impact than a larger one located in South Gippsland. However, that does not mean the proposal is acceptable.
Further, I have not been persuaded the previously issued permits on the land negates the need to consider the proposal having regard to the relevant planning scheme provisions. Whilst the permits may have been issued after the commencement of the operation of WEF, I was not taken to any permit or Council report that shows a permission and/or assessment with respect to the relevant decision guidelines.
Even if there had been an assessment and subsequent issue of a permit, current circumstance is a planning permit is required to construct a building or works associated to a dwelling (accommodation) within one kilometre from the nearest boundary of land subject to a WEF permit. It follows that an application must therefore be considered having regard to the relevant planning scheme provisions. Whilst a previously issued permit may have relevance, it is only one part of a range of matters the decision maker must consider.

The proposal seek to construct access from West Area Road. The submissions confirmed that the construction of the access point will require the removal of vegetation located within the road reserve.
The Council submits a planning permit is required pursuant to the provisions of clause 52.17-1 and the applicant has refused to provide Council the information required by the planning scheme regarding the native vegetation to be removed. They say the site has three road frontages, with hundreds of metres of cleared frontage from which to gain access. Council is not satisfied that no other practical opportunities to access site are available.
The applicant submits clause 52.17-7 provides an exemption from the requirement to obtain a permit for the removal of native vegetation to create vehicle access. The exemption is said to provide for the removal, destruction or lopping of native vegetation to the minimum extent necessary to enable the construction or maintenance of a vehicle access across a road reserve from a property boundary to a public road.
It is apparent from the applicant's submission they rely on the exemption and a permission has not been sought to remove native vegetation. They say the exemption applies to properties which share a common boundary with the road reserve, and the total width of clearing must not exceed 6 metres. They acknowledge the exemption does not apply where there is a practical opportunity to site the accessway to avoid the removal, destruction or lopping of native vegetation. They say the width of the access point is approximately 4.0 metres and given the location of the proposed building envelope, and the use of the land for extensive agriculture, there is no practical opportunity to avoid the removal of vegetation from the West Area Road reserve.
Council's Notice of Refusal to Grant a Permit includes a ground of refusal that states the proposal has provided insufficient information with respect to the application requirements of Clause 52.17-1 (Native Vegetation).
In circumstances where:
- I am refusing a permit for the reasons previously discussed;
- no permission being sought by the applicant to remove native vegetation; and
- there being a lack of submissions regarding the proposed access point, other potential access points and the vegetation that may or may not need a permit to be removed.

I make no findings with respect to the proposed access from West Area Road, including whether the exemption relied upon by the applicant for the removal of native vegetation applies or whether a permit is required as submitted by Council.

For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[1] The plans prepared by Drouin Drafting Service, version 1, dated 22/10/2024 show the road as Webb Road whilst Council's submission states it is known as Redstone Road. Council confirmed the name to be Redstone Road which was not opposed by the applicant.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Plan forming part of plans prepared by Drouin Drafting Service, version 1, dated 22/10/2024.

[7] Council submission, paragraph 68, pages 19 and 20.

[8] Council submission, paragraph 68, page 20.

[10] Clause 14.01-1S - Protection of agricultural land.

[11] Clause 14.01-1L - Dwellings and subdivision in rural areas - General strategies.

[13] Clause 14.01-1L - Dwellings and subdivision in rural areas - Dwelling strategies.

[14] Bass Coast Delegation Report dated 17 September 2009.

[15] Permit 090371 issued 17 September 2009.

[16] Planning Permit 090371 issued 17 September 2009.

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Schellekens v Bass Coast SC [2025] VCAT 871 (20 October 2025)

Schellekens v Bass Coast SC [2025] VCAT 871

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)

Schellekens v Bass Coast SC [2025] VCAT 871 (20 October 2025)