Ms Juliet Forsyth SC and Ms Emma Peppler, Counsel, instructed by Mr Tom Callander from Rigby Cook Lawyers.

Mr Craig Murphy, Town Planer from Boroondara City Council.

Mr Nicholas Karageorge, Town Planner from Melbourne Water

Planning permit PP18/00017 was issued by Boroondara City Council on 30 July 2019, for the partial demolition of buildings and construction of buildings and carrying out of works associated with an existing education facility on land affected by the Land Subject to Inundation Overlay and Heritage Overlay, on land at 1 Morrison Street, Hawthorn (the review site). The Planning Permit was issued under the approved Master Plan for Scotch College (DP18/002).

The amendment sought under application PP18/00017.01 provides for the conversion of what was to be a basement storage to car parking, the omission of nominal landscaping and deletion of a window associated with the existing tuck shop.

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Zone and overlays applying to the application[1]

Special Use Zone Schedule 2 (SUZ2) (Private Education Centre) - clause 37.01 & Schedule 2.

Development Plan Overlay Schedule 2 (DPO2) - clause 43.04 and schedule 2.

Heritage Overlay, Schedule 608 (HO608) - clause 43.01.

Land Subject to Inundation Overlay, Schedule 1 (LSIO1) - clause 44.04 - applies to part of the relevant land.

Construct a building or construct or carry out works in the SUZ2 (clause 37.01-4) and the HO608 (clause 43.01-1) and on land subject to a LSIO (clause 44.04-2).

Demolish or remove a building in HO608 (clause 43.01-1)

Clauses 13.01-1S, 13.03-1S, 15.03-1S, 21.03, 21.04, 22.03, 37.01, 43.01, 44.04, 65.01, 66.03 and 71.02.

The review site is located on land described as 1 Morrison Street Hawthorn, being an existing education centre for Scotch College Campus, including a multiple range of education buildings, open space (formal and informal) parking and formal road accessways.

The northern boundary of the campus includes the properties on the northern side of Morrison Street. Glenferrie Road is adjacent to the eastern boundary, the M1 (Citylink) and Gardiners Creek provides the southern boundary. The Yarra River acts as the western boundary. The review site is partly situated on a designated floodplain at the confluence of Gardiners Creek and the Yarra River. Parts of the campus are subject to flooding from both watercourses during large flood events.

The proposed demolition and works occur within the area described in the application as the Keon Cohen building (building 6) within the Scotch College campus.

1. This is an application under s77 of the Planning and Environment Act 1987 (the Act) by Scotch College, to review the decision of the Boroondara City Council (the Council) to issue a Notice of Decision to Refuse to Grant amendments to planning permit PP18/00017.01. That permit provides for the partial demolition of an existing building and works to provide amongst other works, basement storage. The works are all to occur within the campus area of Scotch College but are essentially confined to an area known as Keon Cohen Building (the review site).
2. Amongst other changes, the amendment application seeks to convert the proposed basement storage to an under-croft car parking area of 18 spaces, linked to the existing science building car park.
3. The proposed car park lies in an area under the Boroondara Planning Scheme (the planning scheme) that is subject in part to the LSIO as it would be subject to inundation in a 1% Annual Exceedance Probability (AEP) flood event. Accordingly planning permission under clause 44.4-2 of the planning scheme is required.
4. The amendment application was referred to the Melbourne Water Corporation (MW) under s56 (1) of the Act and in accordance with clauses 44.04-7 and 66.03 of the planning scheme. MW advised the Council that it objected to the proposal on the following grounds:
   • 1. The proposed development is inconsistent with the Planning Policy Framework including the Local Planning Policy relating to drainage and floodplain management.
   • 2. The proposed development is inconsistent with the purpose and decision guidelines set out in the Land Subject to Inundation Overlay (LSIO) within the Boroondara Planning Scheme.
   • 3. The proposed development is contrary to the objectives of the 'Guidelines for Development in Flood Affected Areas' including Flood damage and Offsite impacts.
5. As MW is a determining referral authority, the council subsequently refused the permit amendment by operation of s61(2) of the Act. The grounds of MW were the only grounds of refusal issued by the Council.
6. For reasons that we set out below, the nature of this proceeding has now become confined to a question of what conditions to apply to the proposed permit amendment, as MW, Scotch College and the Council have reached agreement on a form of flood risk management that addresses the concerns raised by MW in its grounds.

1. The Tribunal understands planning permit PP18/00017 was originally issued on 30 July 2019 and is due to expire if the approved development has not commenced by 30 July 2021. The Tribunal accepts this permit had been issued under the approved Master Plan for Scotch College (DP18/002). In addition, the endorsed plans have been previously amended by the Council under secondary consent (Post19/00478).
2. In addition to the conversion of the basement to a car par, the amendment seeks to omit nominal landscaping (two planter boxes and staircase planting creepers) and deletion of a window associated with the existing tuck shop. These amendments are uncontroversial and not opposed by the Council and not relevant to the matters before us. We therefore do not refer to these further in these reasons.
3. Following the refusal of the application on the grounds raised by MW, the parties undertook further discussions. This resulted in amendments to permit amendment application. With the consent of the parties, we have amended the application by way of the plans lodged on 26 August 2020.
4. The amended planning permit application includes the following material:
   • Amended plans[2] prepared by Cox Architecture;
   • Revised proposed permit conditions;
   • A statement from Mr Jason Walsh of the Traffix Group; and
   • A draft Flood Risk Management Plan (FRMP)
5. The requirements of the FRMP are not in dispute. Submissions from the parties indicate that the amending plans and the flood response measures set out in the draft FRMP are considered acceptable to all parties and have effectively settled the functional flood risk matters.
6. The disagreement, principally between MW and Scotch College is about the appropriate mechanism to ensure that the FRMP is implemented, who takes responsibility for its implementation and who accepts the residual flood risks. More particularly it is the reliance on a flood protection structure comprising of manually inserted planks that is the focus of MW's concerns, as expressed in its submissions and proposed condition 4(b). We address these matters shortly. For now, it is sufficient to note as the parties have, that while the original application responded to a refusal to grant a permit, the nature of the dispute now before us is one of permit conditions, more particularly one permit condition.
7. For the record, we note here that with the consent of the parties the Tribunal made directions for the determination of the review application by a hearing on the papers.[3] The order sought written submissions from the parties about the disputed condition.
8. All parties have provided submissions to the Tribunal. The parties also confirmed their consent to the amended plans being substituted as the application plans[4] and that the remaining amended permit conditions were acceptable.
9. While we acknowledge that the nature of the original application made under s 77 of the Act sought a de novo review, we understand that the consent of the parties as set out above allows us to confine our consideration and these reasons pursuant to s 84AB of the Act to the dispute about MW's proposed condition 4.

1. To ensure the FRMP is implemented and that the operator of that plan, accepts the residual risks associated with that plan, MW's agreement to the FRMP is predicated on the following condition:
   1. Prior to the completion of works, the owner of the Land must enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987 with the Responsible Authority and Melbourne Water Corporation. All costs associated with the setting up of the agreement must be borne by the permit holder. The agreement must be registered on the title of the Land and must provide, to the satisfaction of the Responsible Authority and Melbourne Water for:

a) The implementation of the Flood Risk Management Plan which has been approved by the Responsible Authority and Melbourne Water Corporation under this permit.

b) The owner of the Land acknowledges and wholly accepts the risk to human safety and property associated with flooding in the event that the flood plank system fails/faults.

1. For reasons we set out later, Scotch College opposes the use of a s 173 Agreement to implement the FRMP and more particularly is opposed proposed condition 4(b). Scotch College gives in-principle agreement to a requirement that the FRMP be implemented in the event of a flood and that there be an acknowledgment of the risks borne from reliance on the FRMP. It says both these outcomes can be achieved through permit conditions.
2. To that end Scotch College proposes the following permit conditions:

The Flood Risk Management Plan must be implemented to the satisfaction of the Responsible Authority and Melbourne Water.

The Flood Risk Management Plan must include an acknowledgement by the owner of the land that the high flood levels predicted on-site within the Keon Cohen Centre basement from the Yarra River require management of risk in accordance with the Flood Risk Management Plan and that the owner is responsible for the Flood Risk Management Plan implementation measures including the flood plank wall system.

1. The Council says its priority in this matter is ensuring the preparation, approval and implementation of a FRMP that appropriately addresses the amended proposal. It is satisfied the FRMP lodged by the application addresses this priority. The Council submits that either permit conditions or a s173 Agreement can provide for the implementation of the FRMP.
2. It is apparent from the above that this dispute lies largely between MW and Scotch College. Even then, these two parties are not that far apart. Both agree that the FRMP must be implemented and that it is the responsibility of the owner of the land to acknowledge the flood risk and accept responsibility for implementing the FRMP. The substantive issues to be determined are:
   • Is it necessary for Scotch College's acknowledgement of the flood risks, and more specifically risks linked to the failure or fault of the proposed flood plank system, be locked into a planning condition?
   • Is it necessary and appropriate for Scotch College to 'wholly' accept this risk to the exclusion or indemnification of all others?
   • If the answer is yes to one or both of these questions, is it necessary to incorporate these requirements into a s 173 Agreement or is one or more permit conditions sufficient?
   • How is the implementation of the FRMP best secured through the framework of the planning permission?

The submissions of Melbourne Water Corporation

1. MW submits that the use of the flood plank system 'sits outside the standard measures for flood protection outlined in the DELWP Guidelines for Development in Flood Affected Areas'. It has not been able to verify the efficacy of the flood protection structure though it accepts that the proposed system and the provision of a back-up pump out system address the risks arising from the under-croft car park being located within the 1% AEP flood prone area. As such, MW says there is a residual risk in the event of a failure of the flood mitigation measures, most particularly the flood plank system, a system which it will have no control over its manufacturing, operation or maintenance.
2. It says that it would be unfair for a publicly funded authority such as it is, to bear any costs or damages arising from reliance on such a system in these circumstances.
3. On this basis it seeks indemnity against any future liability arising from the failure or fault of that particular system. This is the express purpose of its proposed condition 4(b). And it is submitted that a condition on a permit would not provide 'sufficient legal assurance', whereas a s 173 Agreement would.
4. MW similarly submits that the ongoing nature of a s173 Agreement will clearly and legally carry forward the obligations of the FRMP in the event of a new landowner. It acknowledges the chance of land ownership change occurring is low given the institutional nature of the existing use on the site. Nevertheless, it seeks a more legally binding and comforting basis for ensuring the obligation is carried forward with the land.
5. Thus, the reliance on a s173 Agreement is said to provide the authority with appropriate legal comfort in the event of any failure of flood mitigation measures approved in the FRMP and to provide the most appropriate mechanism for enforcing ongoing compliance with the FRMP.

1. Scotch College says the imposition of a s173 Agreement is not necessary or appropriate. It refers to two recent Tribunal decisions, Stock Corporation Pty Ltd v Yarra CC[5] and No. 8 River Street Pty Ltd v Stonnington CC[6], that have considered and imposed requirements for a s173 Agreement to implement relevant flood response plans. Scotch College submits these two decisions are distinguishable from the matter before this Tribunal. Namely, the development proposals in those reviews included multiple mixed land uses, tenants and / or landowners.
2. It says this matter involves a single landowner (Scotch College) who has long term aspirations to remain the owner and continue the use of the land for education purposes. The applicant submits that requiring a s173 Agreement in lieu of permit conditions introduces an additional and unnecessary layer of regulatory encumbrance.
3. Scotch College relies on the principles of Benedetti v Moonee Valley City Council [2005] VSC 434 (often termed the Benedetti principles) that conditions in a development planning permit have ongoing force and effect so long as the "benefit" of the permit is enjoyed.
4. In respect to condition 4(b), Scotch College says this condition 'appears to be intended to operate as an 'indemnity' condition'. It says that the wording of this condition does not meet established tests for clarity and certainty. Scotch College submits that the terms would unfairly constrain future liability claims for costs or damages beyond the limited purpose expressed by MW in the event of a future flood episode.
5. Apart from this lack of clarity, Scotch College says the MW condition serves no planning purpose, particularly as these matters are more appropriately governed and enforced through contract and tort law. Accordingly, it is said that the inclusion of such an 'indemnity' condition in a s 173 Agreement or as a permit condition is not consistent with the purposes of such agreements and so is not appropriate.

1. Section 174 of the Act sets out the form and content of a s 173 Agreement. In summary, the content may include matters[7] about the regulation of use of development of the land (to which the agreement would apply), conditions to which the land use or development may be subject to, and / or any matters to achieve or advance the objectives of planning in Victoria under the Act or of the planning scheme. In short, the agreement must serve a planning purpose.
2. Notwithstanding the ambiguous nature of the wording put forward by MW, we find the intent of this condition serves no planning purpose. By its own admission, its purpose is to protect MW from liability actions arising from a failure of the flood plank system.
3. We agree with Scotch College that as this is not a planning related condition it should not be included as permit condition. Our order reflects this conclusion.
4. Even if we are wrong to so readily dismiss this condition on that basis, we consider that imposing such a condition on the basis that the potential for failure of the plank system introduces a residual risk, misconstrues the intent of the planning scheme and the guidelines for flood management.
5. For reasons that we explain below, the intent of the planning scheme and flood management guidelines is not to eliminate flood risks, but to minimise and manage the risks to an acceptable level. Having accepted that the FRMP does minimise this risk, MW has discharged its duty to the appropriate requirements. It seems unnecessary and curious that it then seeks to disavow itself of that decision through a condition that is intended (at least in its opinion) distances itself from the acceptability of that residual risk. For this reason, we would not support the imposition of such a permit condition, notwithstanding any question of it serving a planning purpose.

Flood risk management under the framework of the planning scheme

1. Flood plain management is addressed at State level through clause 13.03-1S. Amongst other objectives, this clause seeks to assist the protection of life, property and community infrastructure from flood hazard.
2. Policy guidelines encourage the decision maker to consider amongst other matters, relevant floodplain management manual of policy or practice adopted by the relevant flood planning management authority.
3. Local policy at clause 21.03-4 (Floodplains) deals with land beside the Yarra River and Gardiners Creek that is identified in a declared flood liable area. Like the state policy provision, this clause includes an objective to minimise the impacts of flooding and overland flows on development. The application of the LSIO to identify land that has flood storage function or is a flood fringe area affected by the 1% AEP flood is an outcome of this strategy. The application of the LSIO over the review site serves to highlight the flood risks to, and the flood functions of the subject land for the purpose of land use planning.
4. Apart from identifying the flood storage and flood fringe areas, relevant purposes of the LSIO seek that development
   • minimises flood damage,
   • (be) compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity.
5. Decision Guidelines at clause 44.04-8 requires us to consider any comments from the relevant floodplain management authority, the existing use and development of the land and consider the potential flood risk to life, health and safety. Specific matters to consider in respect to the latter include:
   • The frequency, duration, extent, depth and velocity of flooding of the site and accessway.
   • The flood warning time available.
   • The danger to the occupants of the development, other floodplain residents and emergency personnel if the site ...is flooded.
6. We are satisfied with the referral comments made by MW, acting as the determining authority, that the above matters have been appropriately considered as part of the amended permit application.
7. We observe that the preparation of the draft, but nonetheless detailed FRMP that accompanied the amended permit application addresses the key objectives of minimising the risk to property and the safety of people in relation to the area of the subject development, i.e., the under-croft car park. The finalisation and application of the FRMP to the operation of the under-croft car park is supported by all the parties as an appropriate way of managing the risks.
8. We have also taken account of the fact that apart from the under-croft car park, the draft FRMP deals more broadly with other flood risks across the school grounds and infrastructure that would also be subject to inundation. Within the context of the broader flood response planning, the flood plank system which MW holds concerns about, is in fact the last step of a series of actions designed to progressively respond to the nature and extent of any flood event. The FRMP includes a series of early warning measures, alert levels, actions to deal with property and human safety risks at lower levels of the school grounds and school infrastructure (e.g., the rowing sheds and sports ovals) and a series of escalating actions, if and when flood waters breach or overtop an earthen levee.
9. We find that the FRMP presents a comprehensive response to the flood risks that is not limited to the development proposal that is the subject of this proceeding. It is of a substantive benefit to overall flood risk management for the school site.
10. The position of MW in respect to condition 4(b) therefore seems to us to be curious, given the integrated and escalating steps the FRMP sets out to manage the flood risks. To divorce the residual risk of one element of that plan from all other elements and encumber Scotch College with a liability as to its success or failure, seems to us to miss the integrated nature of the FRMP and the purpose of the planning scheme to minimise risks, not remove them all together.

Flood risk management and the Guidelines for Development in Flood Affected Areas

1. In support of its conditions and the use of a s173 Agreement to secure these conditions, MW relies on the fact that the flood plank system falls outside the standard measures for flood protection outlined in the DELWP Guidelines for Development in Flood Affected Areas (the Guidelines)[8].
2. We accept that the Guidelines is a relevant manual of practice adopted by MW to support the objectives of flood management planning policy we have set out earlier.
3. The introduction of the Guidelines states:

Usually the information in the guidelines is sufficient to guide decision making. However, the guidelines cannot cover all the circumstances and aspects of flood behaviour.

Floodplain managers have discretion to vary from the guidelines, considering local circumstances, the nature of the development proposal and the flood risk.

Given the above commentary within the Guidelines and though more a practice document rather than policy, we nonetheless agree with the submissions from Scotch College that the Guidelines are .... a tool to assist decision making, they are not mandatory and nor do they definitively set out measures or circumstances that are acceptable or not.

1. The Guidelines address four objectives; safety; flood damage; off-site impacts; and waterway and floodplain protection. The matters in issue in this proceeding focus on flood damage and safety. No party has raised off-site impacts or floodplain protection matters. From our reading of the FRMP and flood plain conditions this appears to follow from the fact that there is already in place a high degree of flood protection and management infrastructure within this part of the Yarra River floodplain and there is no issue about impacts arising from the proposed development in respect to storage, down-stream or up-stream afflux or floodplain health and functionality. Accordingly, our focus is on the safety and flood damage objectives of the Guidelines.
2. Under the heading of 'key principles for development,' the Guidelines reiterate that:

The flood risk to people (including emergency services personnel) should be kept to acceptable safety thresholds, as per the latest updated Australian Rainfall and Runoff Guidelines.

1. The principle is not to avoid risk, but to maintain it to an acceptable level. Similarly, in respect to property, the underlying principle is for:

Any development in a flood affected area, including associated infrastructure, should be planned to avoid or minimise the flood damage potential.

1. In line with this principle, consideration is to be given to how a building's contents can be protected to minimise the flood damage potential.
2. This approach to minimising risks and reducing impacts is further underscored when the Guidelines set out that:

Flood risk is determined by the frequency of flooding and the potential economic, social and environmental consequences to the community. They are interlinked: the less frequent the event, the larger the potential consequences.

Usually, it is not practical to eliminate the flood risk. A challenge for the floodplain management authorities is to determine what flood risk is acceptable to the community.

Future growth in the flood risk can be limited by encouraging development intensification away from areas of high hazard. Where development does occur on flood affected land, the risk must be reduced at the property scale. Examples include elevating the floors of buildings and flood proofing.

Risk reduction solutions are not always appropriate. They need to be considered in terms of the impacts on people, property and the environment.

The nature and understanding of flood risk are not set in stone.

1. Our assessment and consideration of this matter is undertaken bearing in mind these objectives, principles and approaches to flood risk management.
2. Given the nature of the development that is the subject of this permit application and the context of a long-established, ongoing use by Scotch College, we do not consider this to be a situation where risk reduction cannot be managed appropriately. As such risk reductions measures through the FRMP are an appropriate course to adopt to minimise flood risks to an acceptable level.
3. Finally, we note in the Guidelines, that guideline for safety seeks to locate vulnerable services, such as schools, outside the 1% AEP flood plain and preferably above the Probable Maximum Flood level. Here we are dealing with an existing school and with an amendment to an already approved building within the school grounds. The permit amendment seeks to convert a tanked (flood proof) basement to an under-croft car park space. This sets the scene as to how best to address the flood risk management regime, as put forward under the FRMP, as opposed to an assessment at first instance of avoidance.

Previous applications of s 173 Agreements

1. As we have noted earlier, Scotch College and the Council's submissions referred to recent cases they say are relevant when considering the application of a s173 Agreement by condition. In Stock Corporation, SM Naylor agreed with the proposition that the LSIO was not a planning control designed to prohibit or discourage any particular form of development.[9] SM Naylor went on to say:

Rather, the control focuses upon minimising the flood damage and allowing development that is 'compatible' with the flood hazard.

1. SM Naylor then went on to deal with the MWC request for a s173 Agreement between it, the council and applicant. At paragraph 58 of her decision, three purposes were put forward to support the application of a s173Agreement:
   • To inform future owners the land was subject to inundation.
   • To identify the use of flood warning and protection structures and their ongoing maintenance for the life of these structures; and
   • To implement the agreed Flood Emergency Response Plan (FERP).
2. SM Naylor did not support the use of a s173 Agreement based on the first and second dot points. She noted a Section 52 Statement associated with a Contract of Sale was appropriate for information on the flooding status of the land. She also found the identification and maintenance of flood warning protection structures could be addressed through the FERP and permit conditions. However, she agreed a s173 Agreement would be useful to alert all future owners and any of the tenancies in the proposed development of their obligations to implement the FERP.[10]
3. We agree with SM Naylor's findings on the first two points above. We also find SM Naylor's support for the s173Agreement on the third dot point is distinguished from the matter before us. Stock Corporation was a case clearly dealing with a proposed development described as having multiple owners and tenants during the whole life of the building. This is not the case before us here, where the education centre is under the responsibility of a single owner who, as the applicant submits, has long term aspirations to remain the owner and continue the use of the land for education purposes. That we give such assertions weight can be borne out for reasons we discuss later in respect of the land's zoning and limited permissible uses.
4. The No. 8 River Street matter involved a proposed ten storey residential hotel that included permissions for a restaurant and function room. While the physical description suggests multiple tenancies were possible in that case, the whole of the building was to be under the control of one site manager. In that situation the Tribunal included a requirement for a s 173 Agreement that required the owner acknowledge the flood risks and for the use of the hotel and associated restaurant, bar areas and function room must at all times be operated in accordance with (the) endorsed Flood Risk Management Plan. Though the Tribunal gave no explicit reasons for requiring this condition, it stated:[11]

Melbourne Water questions whether the FRMP would be effective and would be implemented. We think that sufficient checks and balances can be in put place through the permit conditions to ensure an effective outcome.

1. It would seem to us that notwithstanding any question of multiple tenancies, the Tribunal's response in a situation for a 'use and development' permit was to lock in ongoing obligations to implement the FRMP through a s 173 Agreement.
2. In both these cases, the Tribunals appear to have favoured the use of s 173 Agreements to address concerns related to the circumstances of multiple tenancies or occupiers of a building (or site) regardless of being under the control of one site manager, and / or the need to have clarity for the ongoing implementation of a process to manage the flood risks. In both these cases, this was overall from the point of view of achieving clarity and satisfactory level of certainty about awareness of flood risks and that the relevant FRMP would be implemented or could be enforced.
3. As we have set out earlier, all parties agree to that some form enforceable requirement to implement the FRMP is required. It is the means of how this is achieved that is in contest.
4. Here we have a situation where the Special Use zoning of the land is very much tailored to the current educational use and a limited number of other uses, whether as of right, or as a section 2 use. The opportunity for a future landowner or future use of the land that might see the implementation of the FRMP fall away is, in our view a low risk in light of this land use zoning. We say low risk, because a new owner seeking a new use would likely have to undergo substantive planning application process (be it for a new permit or a planning scheme amendment) which would involve a consideration of flood risks by way of the LSIO and hence the involvement of MW. These planning mechanisms provide an opportunity to revisit the appropriateness of the FRMP to those circumstances.
5. For similar reasons, any change in ownership but with an ongoing use of the land for an education centre would encounter the requirements of the FRMP through an appropriate level of due diligence, given the FRMP is built in within the overall emergency management regime for the school.
6. In this sense, we agree with Scotch College submissions that the planning circumstances of this proceeding are distinguishable from Stock Corporation or No 8 River Street. These circumstances are further reinforced by the fact that the FRMP is very much tied to the overall operation of the school as a whole, as we have set out earlier. It's efficacy therefore extends well beyond that of the limited extent of this permit. While this may well be an argument to support a s 173 Agreement to apply to the title and so fix its implementation for this broad use, conversely in our view, it would support the alternative proposition that the school would implement this FRMP as part of its duty of care to students and staff under the auspices of the school's emergency management program.
7. We accept that in taking the benefit of the permit, the ongoing nature of the permit conditions require the school to continue to implement the FRMP, as per the Benedetti principle.
8. We are satisfied that the single ownership of the school will ensure that permit conditions will be known and that they will also be enforceable against that landowner if breached or failed to be acted upon. In these circumstances, we find the application of a s173 Agreement on the amended permit is unnecessary. For the reasons we have outlined, we are also satisfied that in the event of a new landowner or circumstances where a new use for the building(s) would be sought, sufficient checks and balances already lie embedded within the planning controls over the site that would remedy the concerns held by MW about ongoing awareness and management of flood risks.

1. For the above reasons we see no need for a s 173 Agreement to be required in the very particular circumstances of this planning permit amendment. For the reasons we have explained we also prefer the form of conditions put forward by Scotch College over those sought by MW.
2. Accordingly, an amended permit is directed to be issued as detailed in this order, with the conditions as set out in Appendix A to this decision.

• Partial demolition of existing buildings and construction of buildings and carrying out of works associated with an existing education facility on land affected by the Land Subject to Inundation Overlay and Heritage Overlay.

1. Within 30 days of the amendment of this Permit (by order of VCAT Ref. P2343/2019), amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and three (3) copies provided. When the plans are endorsed, they will then form part of the permit. The plans must be substantially in accordance with the plans substituted in VCAT Proceeding P2343/2019 (identified as Drawing Nos. TP-00 - TP-24 and A-00-1, A-15-01, A-21-01 and A-30-01 prepared by Cox Architects) but modified to show:

(a) Reinstatement of the reference to 'Store 2' in the southern area of the basement.

1. The layout of the site and the size, levels, design, and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.

1. Storage area 2 must be unenclosed from its south side to address issue of flood storage. Metal fin screens shown on the south side perimeter of storage area 2 must be of a 50% open style design.
2. Prior to the commencement of further works after 7 October 2020, a Flood Response Plan must be submitted to the Responsible Authority and Melbourne Water for approval. The plan must be prepared by a suitably qualified person and must be generally in accordance with the Flood Risk Management Plan (FRMP) Prepared by Hydrology and Risk Consulting (Version B, September 2020). The approved FRMP must include:

(a) Identification of the use of any engineered flood warning and protection structures and the ongoing maintenance requirements for the life of the structures, including infrastructure.

(b) The nomination of flood plank wall product or equivalent suitable to the context for which it is proposed with details such as product maintenance and installation instructions.

(c) A maintenance plan for the flood plank systems (including mandatory annual maintenance checks and recording).

(d) Detail of discharge points for submersible pumps.

1. The FRMP must include an acknowledgement by the owner of the land that the high flood levels predicted on-site within the Keon Cohen Centre basement from the Yarra River require management of risk in accordance with the FRMP and that the owner is responsible for the FRMP implementation measures including the flood plank wall system.
2. If, on a formal review of the FRMP, it is proposed to amend the FRMP the proposed amendments and proposed updated FRMP (if appropriate) must be submitted to Melbourne Water and the Responsible Authority for approval. When approved, the updated FRMP will be the FRMP for the purposes of this permit. If a proposed amendment to the FRMP proposes an alternative technology to replace the flood plank wall system and pumps, Melbourne Water may require the permit holder to provide to Melbourne Water and to the Responsible Authority and independent peer review by a suitably qualified person at the permit holder's cost, to the satisfaction of Melbourne Water for Melbourne Water's approval.
3. Prior to completion of the works, the 'Emergency Response Procedures Scotch College (excluding the Sir Zelman Cowen Centre for Science)' dated 20 May 2019 (ERP excluding SZCCS) and the 'Emergency Response Procedures Scotch College Sir Zelman Cowen Centre for Science' dated 20 May 2019 (ERP - SZCCS) must be reviewed by a suitably qualified expert and amended as required to ensure that they are consistent with the approved FRMP.
4. The FRMP must be implemented to the satisfaction of the Responsible Authority and Melbourne Water.

1. The site must be drained to the satisfaction of the Responsible Authority.

1. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Council's drains or watercourses during and after development, to the satisfaction of the Responsible Authority.

1. Prior to any demolition works commencing on the site, a photographic heritage record of the Keon Cohen Building (digital copy) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The study must include:

(b) Two diagonally opposed views of each internal space in the building; and

(c) Architectural design detailing of the building.

(a) The development does not start within two (2) years of the issue date of this permit; or

(b) The development is not completed within four (4) years of the issue date of this permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the permit expires or:

(a) within six (6) months afterwards if the development has not commenced; or

(b) within twelve (12) months afterwards if the development has not been completed.

Council and the Victorian Civil and Administrative Tribunal are unable to approve requests outside of the relevant time frame.

[1] Other planning control provisions apply to the 1 Morrison Street Hawthorn, but do not fall within the area of proposed works and building construction. To avoid confusion, we have not referred to these in this table.

[2] This order now reflects the formal substitution of these amended plans.

[3] Orders of 2 October 2020 made under s 100 of the Victorian Civil and Administrative Tribunal Act 1998.

[4] Those being the plans referred to in order 1 of this decision.

[5] [2020] VCAT 958, at [58].

[6] [2019] VCAT 2058

[7] per s 174(2) of the Act.

[9] [2020] VCAT 958, [24].

[10] [2020] VCAT 958, [58].

[11] [2019] VCAT 2058, [52].