Victorian Civil and Administrative Tribunal|2025-05-05

The applicant submits the revised design of the dwelling is more in keeping with the majority of dwellings in the area. However, they say the dwelling is located on the top of a knoll and will become a prominent landmark rather than being unobtrusive and blending into the surroundings.
Council and the respondent submit there are no built form reasons warranting refusal and the design of the proposal is acceptable having regard to the relevant provisions of the Planning Scheme.
Relevant decision guidelines at clause 35.07-6 require consideration of the siting, design, height, bulk, colours and materials on the natural environment and area The proposed dwelling is single storey and sited approximately 35.0 metres from the Traralgon-Balook Road frontage. The dwelling is sited on a portion of the site that is set back from the eastern (rear) elevated portion of the site. The dwelling is proposed to have a maximum height of 4.18 metres with the external surface treatment comprising rendered cladding.
The dwelling will be visible from Traralgon-Balook Road, however this outcome is acceptable as there is no requirement in the planning scheme for the dwelling not to be visible from the public realm or adjoining land. Further the siting of the dwelling below the rise in the land to the east combined with the single storey design acceptably minimises its visual impact. In this context the proposal acceptably responds to the relevant decision guidelines at clause 35.07-6.
Further the proposal acceptably responds to the relevant provision of clause 15.01-6S as the siting, scale and appearance of dwelling will not have an unacceptable impact on the rural character and avoids being on an elevated portion of the site.
Similarly, the proposal acceptable responds to the provisions of clause 15.01-6L as the siting avoids being located on an elevated portion of the site and its single storey scale will assist it to blend into the landscape.

For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.
The permissions granted are solely that required pursuant to the provisions of FZ2. The Tribunal is unable to consider, or grant any permission in respect of, the BMO provisions. This is consistent with the decision of the Supreme Court in the matter of Myers v Southern Grampians SC [2023] VSC 658 and with the Tribunal's determination of the questions of law in Strachan v LaTrobe CC [2024] VCAT 541 detailed earlier in these reasons. It is for the respondent (and the responsible authority) to consider how this issue may be addressed/resolved.

Construction or carrying out of a building or works associated with a use in Section 2 of clause 35.07-1

Construction of a building within 100m of a Transport Zone 2 (as specified in Schedule 2 of the Farming Zone)

Compliance with documents approved under this permit

At all times what the permit allows must be carried out in accordance with the requirements of any document approved under this permit to the satisfaction of the Responsible Authority.

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must generally be in accordance with the plans submitted with the application but modified as follows:

(a) The site plan amended to clearly identify the vegetation to be removed and retained.

The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

The Farm Management Plan prepared by EnProve Ag & Environment (dated 8 October 2024), must be endorsed to form part of the permit. The Responsible Authority may consent in writing to vary the Farm Management Plan.

The dwelling must not be constructed until the following agricultural activities described in the endorsed Farm Management Plan are implemented on the land to the satisfaction of the Responsible Authority:

(a) soil working to prepare for the planting of the trees;

(b) the planting of 120 truffle-inoculated Hazelnut trees;

(c) the planting of 20 truffle-inoculated French Oak trees;

(d) the installing of two 120,000 litre water tanks to hold water to irrigate the trees; and

(e) the fencing of the vegetation patch (located centrally on the land) to manage and conserve the natural resource.

Once building works have started, they must be completed to the satisfaction of the Responsible Authority.
Upon completion of the works, the land must be cleared of all excess and unused building materials and debris to the satisfaction of the Responsible Authority.
All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.

Section 173 Agreement

Before the development starts, the owner of the land must enter into an agreement with the Responsible Authority under section 173 of the of the Planning and Environment Act 1988. The cost of the preparation, review, lodgement and registration of the Agreement and any subsequent amendment, enforcement, removal, or other dealing associated with the Agreement must be borne by the owner of the land. The Agreement must provide the following:

(a) The endorsed Farm Management Plan must be implemented before the dwelling is constructed and thereafter complied with and maintained and until the cessation of the dwelling use on the land to the satisfaction of the Responsible Authority.

Appropriate measures must be implemented throughout the construction stage of the development to rectify and/or minimise mud, crushed rock or other debris being carried onto public roads or footpaths from the land, to the satisfaction of the Responsible Authority.
Before the use starts, or by such later date as is approved by the Responsible Authority in writing, the following works must be completed in accordance with the endorsed plans and to the satisfaction of the Responsible Authority:

(a) All stormwater discharging from the site, buildings, vehicle access ways and works must be discharged to a water tank, soakwell or otherwise discharged so as not to cause erosion, flooding or nuisance to the subject or surrounding land, all to the satisfaction of the Responsible Authority.

(b) The areas shown on the endorsed plans for vehicle access to the permitted buildings and works must be constructed in accordance with the endorsed plans and be surfaced with concrete, reinforced concrete, brick paving, gravel, crushed rock or hot mix asphalt so as to prevent mud or other debris from being carried onto the road.

Before the development starts, an application to install a septic tank system must be obtained and approved in writing by the Responsible Authority.
Wastewater arising from the development must be treated and retained within the lot boundary by a septic tank system (or other approved system) in accordance with the requirements of the Environment Protection Act 2017, EPA Publication 891.4: Code of Practice - Onsite wastewater management (or as amended) and the Responsible Authority.
Stormwater must be diverted away from effluent disposal fields to the satisfaction of the Responsible Authority.
No buildings or works may occur over any part of the approved waste disposal system including the septic tank in accordance with the requirements of the Environment Protection Act 2017, the Guidelines for Environmental Management: Code of Practice - Onsite Wastewater Management 891.4 (2016) and the Latrobe City Council.

This permit will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the issued date of this permit; or

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

(c) The use does not start within two (2) years of completion of the development.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] Respondents' submission paragraph 11, page 3.

[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] Council submission paragraph 38, page 7.

[6] D Suckling evidence statement, page 8.

[7] Respondent's submission, pages 17 and 18.

[8] D Suckling evidence statement page 7.

Environment Act 1987

Planning and Environment Act 1988

Strachan v LaTrobe CC [2025] VCAT 389 (5 May 2025)

In Strachan v LaTrobe CC [2024] VCAT 541, the Tribunal constituted by Deputy President Daicic determined four questions of law. The focus of the questions of law are about:

Strachan v LaTrobe CC [2025] VCAT 389

At a glance

Court

Decision date

Source

Judgment (28 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (2)

Strachan v LaTrobe CC [2025] VCAT 389 (5 May 2025)