Victorian Civil and Administrative Tribunal|2004-10-28

White Ash v Frankston CC [2004] VCAT 2170 (28 October 2004)

VCAT REFERENCE NOS. P2974, P2975, P2976, P2977 & P2978/2003 AND

Permit Application noS. 03592, 03574, 03681, 03368, 03642, 03777 AND 031126

Frankston City Council, Friends of the Edithvale and Seaford Wetlands Inc., Defenders of the South East Green Wedge Inc., Seaford Community Group, E. Helen Corcoran, Robert Hoysted, Sean Ross and others

Melbourne Water and Department of Sustainability and Environment

In relation to Permit Application No. 03368, to construct (as amended) two dwellings on the land at 41 to 43 Austin Road, Seaford, it is directed that no permit issue.

B. APPLICATIONS FOR REVIEW P2975/2003, P2976/2003 AND P2977/2003

In relation to Permit Application Nos. 03574, 03681 and 03642, for the land at 29 to 31, 33 and 35 and 37 to 39 Austin Road, Seaford, a permit is granted and directed to be issued to construct a dwelling, fence and associated works on each lot in accordance with the endorsed plans and subject in each case to the following conditions except that, in the permits for 29 to 31 Austin Road Condition 1(b) must not be included:

1 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 as evidence of their approval. 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 prepared by Thomas Anderson Design Reference No. 03-0340 Issue A dated May 2004 but modified to show:

(a) Relocation of the 2m high timber acoustic paling fence to a point 10m south of the northern boundary of the site.

2 Before the development starts, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed as evidence of its approval. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must be generally in accordance with the landscape plans prepared by Contour Design Australia Pty Ltd Drawing Nos. TP01 and TP03 dated 30 August 2004 but modified to show:

(a) Relocation of the 2m high timber acoustic paling fence to a point 10m south of the northern boundary of the site; and

(b) Re-alignment of the existing bike path on the municipal reserve abutting the northern boundary of the land for the length of 29-39 Austin Road closer to the northern boundary of the subject land and revegetation of the balance of the municipal reserve using indigenous plant stock referred to in Appendix 2 to the expert witness statement of Lincoln Kern of Practical Ecology dated August 2004.

3 Before occupation of the dwelling, the landscaping works including the construction of the realigned bike path on the municipal reserve as shown on the endorsed plans must be carried out and completed at the cost of the permit holder to the satisfaction of the Responsible Authority.

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

5 Before the amended plans are approved the owner must enter into an agreement with the Responsible Authority under Section 173 of the Act, to provide that:

(a) No building will be constructed (other than a garden shed with dimensions no greater than 3m x 3m) on the land other than as shown on the endorsed plans.

(b) Only plants shown in the species list contained in Appendix 2 to the expert witness statement of Lincoln Kern of Practical Ecology dated August 2004 will be planted on the subject land.

(d) Any external lighting will be baffled and downcast.

(e) The applicant to cover all costs relating to the preparation and registration of the Agreement (including costs incurred by the Responsible Authority).

The Section 173 Agreement must be registered in accordance with Section 181 of the Planning and Environment Act 1987.

6 Before any development commences, the 2m high timber acoustic paling fence shown on the endorsed plans must be erected to the satisfaction of the Responsible Authority and at the full cost of the permit holder.

7 Before the landscape works start, a 10m wide strip of the subject land measured from the northern boundary of the subject land must be transferred to the Responsible Authority as a municipal reserve.

8 The plan of subdivision creating the municipal reserve must contain a notice of restriction benefiting the excised lot and burdening the subject lot which prohibits all development (other than a garden shed no greater in dimension than 3m x 3m) on the lot other than as allowed by the endorsed plans under this permit.

9 If construction of the dwelling requires excavation of soil at a depth greater than 0.5m, then a soil report prepared by a suitably qualified professional must be submitted to Council detailing the presence of and mitigation measures for any acid-sulphate soils likely to be disturbed or exposed by the excavations. The recommendations of any soil report must be carried out to the satisfaction of the Responsible Authority.

10 Before any development starts, including excavation, a construction management plan to the satisfaction of the Responsible Authority must be submitted to, approved by and thereafter carried out to the satisfaction of the Responsible Authority. The plan must set out measures to minimise disturbance to fauna in the adjacent wetlands including pre-assembly of frames, setbacks for materials storage, and work hours during daylight periods only.

11 Detailed design plans (including drainage computations) of the internal stormwater drainage system including the method of connection to existing Council stormwater infrastructure are to be submitted for approval to the satisfaction of the Responsible Authority (Infrastructure Manager) prior to the commencement of development construction.

12 Vehicle crossings are to be fully constructed to Frankston City Council standards with specifications at levels to the satisfaction of the Responsible Authority (Infrastructure Manager).

13 Where the development involves work on or access to Council controlled land including roads, reserves and rights of way, the owner, operator and their agents under this permit shall at all times take adequate precautions to maintain works to the highest public safety standards.

Precautions are to include, appropriate signage to AS 1743 Road Works Signing Code of Practice, the provision of adequate barricading of works, including trenches of service authorities and any other road openings sufficient to ensure public safety.

(Note All relevant permits will need to be obtained from the Council for works within the existing road reserves in addition to this planning permit.)

14 The existing footpath located within the site shall be relocated to within the road reserve at the full cost of the applicant to the satisfaction of the Responsible Authority (Infrastructure Manager).

15 No polluted or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

16 Finished floor levels of the proposed dwelling must be a minimum of 300mm above the applicable flood level to the satisfaction of Council and Melbourne Water.

17 Finished floor levels of the proposed garages must be a minimum of 150mm above the applicable flood level to the satisfaction of Council and Melbourne Water.

18 A site management plan is to be submitted to Melbourne Water and the Responsible Authority 21 days prior to the construction commencing detailing pollution and sediment control measures to be undertaken.

19 Prior to the commencement of works, a stormwater management strategy must be submitted to the Responsible Authority and Melbourne Water for approval. The strategy must show:

(a) Inclusion of permanent on-site stormwater quality works to achieve State Environment Protection Policy (Waters of Victoria) objectives for environmental management of stormwater.

(b) Application of water sensitive urban design principles as outlined in Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) 1999.

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

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

(b) The development is not completed within two (2) years of the date of this permit.

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

C APPLICATIONS FOR REVIEW P973/2004, P2974/2003 AND P266/2004

In relation to Permit Application Nos. 031126, 03592 and 03777, for the land at 17 to 19, 21 to 23 and 25 to 27 Austin Street, Seaford, a permit is granted and directed to be issued to construct, in the case of Nos. 17 to 19, eight dwellings, fencing and associated works and, in the case of Nos. 21 to 23 and 25 to 27 four dwellings, fencing and associated works, in accordance with the endorsed plans and subject in each case to the following conditions, except that in the permits for 21 to 23 and 25 to 27 Austin Road, Condition 1(c) must not be included.

1 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 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 received by the Responsible Authority but modified to show:

(a) All driveways identified with a driveway width a minimum of 3m.

(b) A 2m high, timber, acoustic paling fence across the rear boundary of the land.

2 Before the development starts, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plan must be generally in accordance with the landscape plans prepared by Contour Design Australia Pty Ltd Drawing Nos. TP01 and TP02 dated 30 August 2004. All flora species selected must be to the satisfaction of the Responsible Authority.

3 Before occupation of the dwellings, the landscaping shown on the endorsed plans must have been carried out and completed to the satisfaction of the Responsible Authority.

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

5 Before the amended plans are approved, the owner must enter into an agreement with the Responsible Authority under Section 173 of the Act, to provide that:

(a) Only plants shown in the species list contained in Appendix 2 to the expert witness statement of Lincoln Kern of Practical Ecology dated August 2004 will be planted on the subject land;

(b) Any external lighting will be baffled and downcast;

(d) The applicant will cover all costs relating to the preparation and registration of the agreement (including costs incurred by the Responsible Authority).

The Section 173 agreement must be registered in accordance with Section 181 of the Act.

6 A replacement ratio of 10:1 trees must apply. If offset planting cannot be accommodated on site it must be located to the satisfaction of the Responsible Authority (Environment Department).

7 If construction of the dwellings requires excavation of soil to a depth greater than 0.5m, then a soil report prepared by a suitably qualified professional must be submitted to Council detailing the presence of and mitigation measures for any acid-sulphate soils likely to be disturbed or exposed by the excavations. The recommendations of any soil report must be carried out to the satisfaction of the Responsible Authority.

8 All disturbed surfaces on the land resulting from the development authorised or required by the permit must be revegetated and stabilised to the satisfaction of the Responsible Authority so as to prevent any erosion or siltation either on or adjacent to the land.

9 A site management plan must be submitted prior to construction commencing detailing stormwater pollution, sediment control and litter control measures to be undertaken to the satisfaction of the Responsible Authority.

10 Before any development starts, including excavation, a construction management plan to the satisfaction of the Responsible Authority must be submitted to, approved by and thereafter carried out to the satisfaction of, the Responsible Authority. The plan must set out measures to minimise disturbance to fauna in the adjacent wetlands including pre-assembly of frames, setbacks for materials storage, and work hours during daylight periods only.

11 Finished floor levels as shown on the endorsed plans must not be altered without the prior approval of the Responsible Authority.

12 Before the dwellings are occupied, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

(a) Constructed to the satisfaction of the Responsible Authority.

(b) Properly formed to such levels that they can be used in accordance with the plans.

(d) Drained and maintained to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times and concentrated stormwater flows collected in cut-off drains shall be directed to the internal drainage system.

13 Before any development starts, including tree removal, the 2m high timber acoustic paling fence shown on the endorsed plans must be erected to the satisfaction of the Responsible Authority and at the full cost of the permit holder.

14 Detailed design plans (including drainage computations) to the satisfaction of the Responsible Authority (Infrastructure Manager) of the internal stormwater drainage system and including the method of connection to existing Council stormwater infrastructure must be submitted for approval prior to commencement of development construction.

15 A Stormwater Detention System with a volume capable of retarding the 10 year ARI flow from the developed site back to a five year ARI pre-development value must be provided to the satisfaction of the Responsible Authority (Infrastructure Manager).

16 Vehicle crossings must be constructed to Frankston City Council standards with specifications at levels to the satisfaction of the Responsible Authority (Infrastructure Manager).

17 Where the development involves work on or access to Council controlled land including roads, reserves and rights of way, the owner, operator and their agents under this permit must take adequate precautions to maintain works to the highest public safety standards.

Precautions include, appropriate signage to AS 1743 Road Works Signing Code of Practice, the provision of adequate barricading of works, including trenches of service authorities and any other road openings sufficient to ensure public safety.

(Note All relevant permits are to be obtained from Council for works within the existing road reserves in addition to the planning permit.)

18 The existing footpath located within the site must be relocated to within the road reserve at the full cost of the applicant to the satisfaction of the Responsible Authority (Infrastructure Manager).

19 All existing vehicle crossings and/laybacks shall be removed and nature strip and kerb and channel reinstated to the satisfaction of the Responsible Authority (Infrastructure Manager).

20 No polluted or sediment laden is to be discharged directly or indirectly in Melbourne Water's drains or watercourses.

21 Unless otherwise agreed in writing by Melbourne Water, finished floor levels must be a minimum of 300mm above the applicable flood level.

22 Unless otherwise agreed in writing by Melbourne Water finished floor levels of the garages must be a minimum of 150mm above the applicable flood level.

23 Prior to the commencement of works, a stormwater management strategy must be submitted to the Responsible Authority and Melbourne Water for approval. The strategy must show:

(a) Inclusion of permanent on-site stormwater quality works to achieve State Environment Protection Policy (Waters of Victoria) objectives for environmental management of stormwater.

(b) Application of water sensitive urban design principles as outlined in Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) 1999.

24 Before the dwellings are occupied, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

25 Lighting must be provided at any front entrance and within the development and must not cause adverse impact on adjoining land, all to the satisfaction of the Responsible Authority.

26 Mail boxes must be provided to all dwellings to the satisfaction of the Responsible Authority and Australia Post.

27 All plumbing work, sewer pipes etc. (except for spouting and stormwater down pipes) associated with the buildings must be concealed from public view.

28 Power and telephone lines to all units must be placed underground from the main points of service outside the boundaries of the site.

29 All brickwork constructed along and/or facing property boundaries must be raked and cleaned to the satisfaction of the Responsible Authority.

30 Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

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

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

(b) The development is not completed within two (2) years of the date of this permit.

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

Mr John Cicero of Best Hooper, Solicitors. He called the following persons to give expert evidence:

Mr Barnaby McIlraith, Solicitor with the Environment Defenders Office and Ms Rosemary West, represented the Defenders of the South East Green Wedge Inc.

Mr Bill Kosky, Lawyer and Town Planner, represented the Friends of the Edithvale and Seaford Wetlands Inc. (the Friends) as well as persons included on lists provided to him. Mr Kosky called the following persons to give expert evidence:

The following persons presented individual submissions: Ms Hilary Bray, Ms Robin Clarey, Ms Kim Brooks, and Mr Robert Hoysted (by written submission).

Mr Mike Kearney, with Dr William Steele represented Melbourne Water.

1 This proceeding comprises seven applications for review that were each made following the Responsible Authority's failure to grant permits within the prescribed time for land at 17-43 Austin Road, Seaford. The permit applications, as amended by Deputy President Gibson following a directions hearing in May this year, are to construct eight single dwellings on the eight lots comprising 29 - 43 Austin Road and to construct two or more dwellings (up to four in one case) on each of the other five lots comprising 17-27 Austin Road - a total of 24 dwellings in all. Four of the single dwellings are shown as being of two storeys. The rest of the dwellings would be single storey. The plans also show construction of a 2m high acoustic fence along the combined rear boundary, a boundary that abuts the Ramsar protected Seaford Wetlands and coincidentally, is also the Urban Growth Boundary as depicted on the Planning Scheme Map.

2 Following amendment of the plans the Responsible Authority considered the applications for permit and decided that had it been able to, it would have granted permits in the case of the single dwelling applications subject to a condition, among other things, that the acoustic fence be constructed prior to the occupation of any of the dwellings. It had previously resolved (subsequent to the review applications being lodged) that it would have refused a permit in each case. The reasons for refusing the multi-dwelling proposals were:

* That the proposals are contrary to the requirements and objectives of the Municipal Strategic Statement (MSS) and the Local Planning Policy Framework on the Environment in the Frankston Planning Scheme.

* The proposals represent an over-development of the site with regard to the sensitive nature of the adjoining wetlands.

* The proposals would have a detrimental impact on the amenity of the adjacent dwellings located on the south side of the Austin Road and the Wetlands.

* The proposals are not consistent with the orderly planning of the area.

* The proposals are not consistent with Neighbourhood Character.

* The proposals fail to satisfy the requirements of ResCode.

3 At the hearing Ms Heber for the Responsible Authority advised that the Council would be no longer pursuing its grounds for refusal relating to amenity impacts or to not satisfying the ResCode requirements, other than in respect of neighbourhood character.

4 The respondent objectors in this proceeding include the Friends of Edithvale-Seaford Wetlands Inc. and the Defenders of the South East Green Wedge. Their principal concerns were with the impact of the development on the environmental values of the Seaford Wetlands, more particularly their habitat value for threatened and vulnerable birds.

5 Other respondent objectors included nearby residents whose concerns included the impact of additional dwellings on local traffic and on the single dwelling character of the nearby neighbourhood.

6 Two other parties, joined at the directions hearing conducted by Deputy President Gibson, were the Department of Sustainability and Environment (DSE) and Melbourne Water. Among other things DSE has responsibilities under the Fauna and Flora Guarantee Act (F & FG Act) as well as oversight for the management of Victoria's Ramsar Wetlands. Melbourne Water is an adjoining land owner being a manager of the drainage catchment which the wetlands form a part of - with the Council owning much of the dry land public space around the wetlands. Melbourne Water is also a relevant referral authority under the Land Subject to Inundation Overlay Control (LSIO). Neither the DSE or Melbourne Water objected to the applications. However, both expressed the need to be cautious in relation to development of the land given its abuttal to the wetlands and possible impact on protected bird species and their habitat.

7 The land is zoned Residential 1 under the Frankston Planning Scheme and is also covered by the Land Subject to Inundation Overlay (LSIO).

8 Within the Residential 1 Zone the construction of two or more dwellings on a lot requires a permit under Clause 32.01-4 of the Scheme. Such applications must meet the requirements of Clause 55 of the Scheme (the ResCode provisions). These requirements are that development must meet the standards and should meet the objectives of the clause. The single dwellings do not require a permit under the Residential 1 Zone provisions.

9 Under the LSIO provisions at Clause 44.04-1, all of the dwellings as well as the fence require a permit for the construction of buildings and works. As with most controls the first stated purpose of the LSIO - that is to say, a reason for applying the control to this land - is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and Local Planning Policies.

10 Other purposes are; to identify land in flood storage or flood fringe areas, to ensure that development maintains the free passage and temporary storage of flood waters and, to protect water quality in accordance with the provisions of the State Environment Protection Policies.

11 The LSIO decision guidelines at Clause 44.04-5 - which must be considered, as appropriate - include the State and Local Planning Policy Framework as well as:

The effect of the development on environmental values such as natural habitat, stream stability, erosion, water quality and sites of scientific significance.

12 More generally applicable decision guidelines are set out at Clause 65 of the Scheme. Once again, these must be considered as appropriate, before deciding on any application for permit under the Scheme. The decision guidelines include:

* The purpose of the zone, overlay or other provision.

* Any matter required to be considered in the zone, overlay or other provision.

* The proximity of the land to any public land [the wetlands are public land].

* Factors likely to contribute to land degradation ... or reduce water quality.

13 The settlement and housing policies in the State Planning Policy Framework at Clauses 14 and 16 refer to ensuring that sufficient land is available for residential and other uses to facilitate orderly development of urban areas and encourage increased residential densities to help consolidate urban areas. Well designed medium density housing is encouraged and at Clause 55 one of the stated purposes is to encourage residential development that is responsive to the site and the neighbourhood.

14 At the local level, key issues at Clause 21.04 include encouraging medium density housing in appropriate areas and ensuring that residential development is responsive to significant environmental, landscape and cultural features including streetscape values. In relation to identifying appropriate areas for increased densities the Municipal Strategic Statement at Clause 21.04-3 identifies a number of areas, including the coastal strip between Seaford and Frankston, as being appropriate for an increase in housing density. The subject land does not fall within this precinct.

15 The environment policies in the State Planning Policy Framework (SPPF) at Clauses 15.01, 15.02 and 15.09 refer to water catchment, waterway and ground water protection, to floodplain management and to conservation of native fauna and flora. Broadly stated, it is State policy to identify, protect, manage and where possible restore water bodies, including floodplain areas of environmental significance.

16 Under the heading General Implementation at Clause 15.09, referring to the conservation of fauna and flora, planning authorities should use mapped information available from DSE to identify areas of significant native vegetation and biodiversity. In addition, decision making by planning and responsible authorities should:

* Assist the protection of conservation values of ... conservation reserves.

* Assist the conservation of habitats of threatened and endangered species and communities as identified under the Flora and Fauna Guarantee Act 1988 (F & FG Act) including communities under represented in conservation reserves such as native grasslands and wetlands. (Emphasis added)

* Address potentially threatening processes identified under the F & FG Act.

* Assist re-establishment of links between isolated habitat remnants.

17 Also under General Implementation, planning and responsible authorities must ensure that any changes in land use and development would not adversely affect the habitat values of wetlands and wetland wildlife habitats designated under the Convention on Wetlands of International Importance (the Ramsar Convention), or utilised by species designated under the Japan-Australia Migratory Birds Agreement (JAMBA) or the China-Australia Migratory Birds Agreement (CAMBA).

18 Many of the birds sighted at the Seaford wetlands - which, together with the Edithvale wetlands was designated as the one Ramsar site in 2001 - are listed under the F & FG Act, and under JAMBA and CAMBA.

19 Frankston's Local Planning Policy Framework (LPPF) builds upon the State policy provisions. In the Municipal Strategic Statement (MSS) at Clause 21.11, key issues for the city's natural environment and cultural heritage include maintaining the biological diversity that is still found in the city and protecting waterways, wetlands and land liable to flooding. Relevant strategies to achieve the MSS' biodiversity objectives include identifying and protecting sites of significance for fauna and flora and identifying and maintaining the habitat and flood retarding values of waterways and wetlands (emphasis added).

* Using local policy to provide guidance in dealing with proposals that would affect sites of significance for indigenous flora and fauna (Indigenous Flora and Fauna Policy. Clause 22.06) and

* Applying the Urban Floodway Zone and using the Land Subject to Inundation Overlay for floodplains associated with waterways and wetlands to protect these areas from inappropriate development.

* Applying the Environmental Significance Overlay to identify and protect sites of flora and fauna significance. (Emphasis added)

Purchasing the remaining section of the Seaford swamp and the few remaining strips of land along Kananook Creek that are in private ownership.

22 The purchase of the subject land has apparently been a matter that the Council has considered budgeting for in the longer term. It has also received a financial contribution from the Commonwealth towards the purchase of Downs Farm, to the north-east of the wetlands. It has so far not pursued either.

23 A specific local policy at Clause 22.06 applies to areas of indigenous vegetation and in particular sites of botanic significance depicted on the Map 1 of the Environmental Significance Overlay (ESO). The Seaford Wetlands is such a site. At Clause 22.06-3, among other things it is policy that:

* The use development and management of land within and adjacent to sites of botanical or zoological significance be compatible with their long-term protection and enhancement.

* New development anywhere within the city not diminish the integrity of Frankston's biodiversity (natural resources and the maintenance of ecological process and genetic diversity). If there is any doubt about the impact of a proposal, the precautionary approach should be adopted.

* Rare or threatened communities and species of flora and fauna be protected by implementation of the principles and requirements of the Commonwealth Endangered Species Act 1992 and the F & FG Act. (Emphasis added)

24 Both an LSIO and an Environmental Significance Overlay cover the Wetlands. The Wetlands is zoned Public Use Zone 1 (Service and Utility) and, as noted earlier, the Urban Growth Boundary (UGB) separates it from the surrounding Residential 1 zoned properties to its west, south and part of its eastern boundary, including from the subject land.

25 As part of the material to accompany the documentation seeking nomination of the Seaford and Edithvale Wetlands to the list of wetlands of international importance under the Ramsar Convention, a management plan was prepared by Ecology Australia Pty Ltd on behalf of Melbourne Water's Waterways and Drainage Group. As stated in the summary at page 1 of that management plan, the plan follows the standard Ramsar Bureau suggested format, including:

* Preamble (including historical, policy and regulatory context);

* Description (including hydrology, flora and fauna);

* Evaluation and objectives (including values, risks and management objectives); and

* Action plan (including activities to manage risks and threats).

26 The action plan is based on a zoning plan that divides the wetlands into Core Protection Zones, Controlled Access Zones and Community Use Zones. The subject land, together with what might be termed the whole of the peripheral land between the Core Protection Zone and/or Controlled Access Zone and surrounding residential areas, is within the Community Use Zone. At Clause 5.1 of the management plan the purpose of the zoning plan is described as a means to identity areas where particular management themes and associated activities take priority.

27 Under the Action Plan theme, fauna, disturbance to wildlife is a particular management issue required to be addressed in the Core Protection Zones and the Controlled Access Zones, although notably not in the Community Use Zone.

28 Under the heading activities the following appears:

* Locate infrastructure for human activities at least 60m from the edge of wetlands or, where unavoidable, provide dense screening vegetation at least 20m from the edge of the wetland vegetation.

* Locate infrastructure likely to concentrate human activities (eg. car parks, entry points, picnic areas) at least 120m from the edge of wetland vegetation.

* Restrict recreational activities at or near (within 200m) the wetlands strictly to passive or nature based activities.

* Control disturbing influences such as noise, inappropriate levels of use on nearby reserves and limit lighting to low lux strength within 500m of the wetlands.

* Restrict the movement of dogs in the wetlands by ensuring all dogs are kept on a leash.

29 The management objective to be met under the theme, Fauna, is:

To maintain and enhance the diversity and abundance of fauna in the wetlands.

30 Section 60(1)(a)(iii) of the Act requires that before deciding upon a permit application, the Responsible Authority must consider any significant effects which the Responsible Authority considers the use or development may have on the environment.

31 Having heard and considered the submissions and evidence in this proceeding, we advised the parties of our conclusion that on a balance of probabilities, the development, including the single dwellings, could give rise to a significant effect on the environment. We also stated that in our view this effect was not due to any hydrological or drainage associated impact. Rather it could be attributed to the disturbance which the buildings and works and their subsequent occupation would cause for the protected bird species that inhabit the wetlands thereby impacting on the habitat values of the wetland and on the vulnerability of those birds.

32 The parties held different views about the extent of the Tribunal's jurisdiction to consider the effect. While all were content to rely on the ambit of discretion principles established in the National Trust[1] case and more recently confirmed by the Supreme Court in Shalit[2] and by the Tribunal in Victorian National Parks Association Inc.[3], the permit applicants promoted a more confined application of that principle than did the respondent objectors. In respect of the single dwelling applications - where the sole reason for a permit lies with the LSIO - the approach promoted by the permit applicant would have prevented the Tribunal from taking into consideration any environmental impact not attributable to hydrological or drainage matters. As a consequence it would have also prevented inclusion of permit conditions to address non-hydrological or non-drainage impacts - although the permit applicants were prepared, voluntarily, to abide by certain constraints including transferring the rear 10m of the single dwelling lots into public ownership.

33 The question of the extent of the Tribunal's jurisdiction to consider non-hydrological and non-drainage related impacts in the exercise of its discretion to grant or refuse a permit for the single dwellings and fence and/or what conditions should be imposed, is a question of law.

34 Clause 66 of Schedule 1 of the VCAT Act provides that where a Tribunal is constituted without a legally qualified member any question of law that arises must be decided in accordance with the opinion of a judicial member or member who is a legal practitioner nominated by the President - unless the parties agree to the presiding member deciding the question. As it was not possible to obtain the consent of parties not in attendance on the day of the hearing, this question of the Tribunal's jurisdiction was referred to the Tribunal's President, His Honour Justice Stuart Morris.

35 At a hearing on 1 October 2004 Justice Morris considered the question of law and held that:

in the exercise of the discretion under the LSIO, the Tribunal is entitled to consider the effect of the construction of the dwellings, and the effect of the subsequent use of the dwellings, on environmental values within the LSIO. This is so whether the effect is caused by altering the quality of the water in the wetlands or by changing the hydrology of the wetlands or for any other reason. I reach this conclusion having regard to the stated purposes of the overlay, the decision guidelines of the overlay, relevant policies set out in the Scheme and the inherent and inextricable connection between land subject to inundation and a particular kind of wildlife or natural habitat value that inheres in such land.

36 A revised transcript of His Honour's reasons is appended to this decision.

37 The principal issue in these proceedings was that of the development's environmental effects. While some of the grounds for contesting the application referred to what might be termed ResCode amenity affects, such as neighbourhood character, traffic and parking, these were not vigorously pursued and we will make only brief reference to them.

38 The case put by the Responsible Authority and DSE in this proceeding was that single dwellings with a 2m acoustic fence and a 10m wide landscape buffer to the wetlands would be an acceptable outcome for all of the land in question. In the case of the DSE - Mr Grace recommended that the fence be on the southern side of the buffer.

39 In Ms Heber's submission, compared to other parts of the metropolitan area where increased residential densities are promoted, the sensitive location of the subject land justifies a more cautious approach. In her submission the activity and therefore possible disturbance to wetlands by 14 single dwelling households compared to eight single and 16 multi-dwelling households was significant. She noted also that the land is not in one of the municipality's preferred or encouraged areas for increased densities and that the State and Local Planning Policy Framework promotes a precautionary approach in relation to developments so close to such an internationally important and environmentally sensitive wetland. It is the case also that Ms Heber's submissions were based on her understanding that the ambit of discretion in relation to the single dwelling applications under the LSIO provisions was confined to matters of drainage, water quality and hydrology.

40 A similar case to that put by the Council and DSE was put by Melbourne Water except that in its case, no objection was raised in relation to the multi-dwelling development on the more westerly allotments at 17-27 Austin Street. At pages 2 to 3 of Mr Kearney's submission the Authority's position is encapsulated:

In its responses to Council regarding the original multi-unit proposals for 29-43 Austin Road, Melbourne Water advised that, as the landowner of the wetlands, it was "concerned that the residences are sited too close to the wetland. It is strongly recommended that there is a minimum setback of 10 metres to minimise any disturbance of (sic) the adjacent habitat. Appropriate vegetative screening on the boundary adjoining the wetland may minimise impacts such as noise and lighting from the units. Melbourne Water would support the inclusion of conditions that require a minimum setback and vegetation screenings."

In separate correspondence to the applicant, dated 26 February 2004, Melbourne Water advised that a minimum setback of 10 metres was required at sites 29-43 Austin Road, to minimise the impact on the adjacent wetland. The setback was required through numbers 29-43 Austin Road only, where the reserve to the north of the site is narrow and vegetative screening is limited. A setback was not required for properties 17-27 Austin Road, where the reserve at the rear was considered sufficiently wide and vegetated to provide a buffer between the development and the wetlands.

Melbourne Water subsequently received revised development plans for 17-43 Austin Road. The modified proposals were for single dwellings and included the recommended 10 metre setback. Melbourne Water did not object to the proposal, subject to the same conditions specified in its original response to Council.

It should be noted that this 10 metre offset does not represent a narrow "buffer zone" but rather is the additional offset needed to ensure that the proposed development complies with the current approved Conservation Management Plan recommendations for a minimum distance of 20 metres between human infrastructure and wetland vegetation and, when possible, 60 metres between wetland edges and infrastructure.

41 The case for the Friends and the Defenders of the South Eastern Green Wedge - and based primarily on the evidence of Messrs Lansley and Ross - was that the cumulative impacts of urban development is a threatening process which, while difficult to document in terms of specific incidents, is nevertheless causative in the extinction of threatened and vulnerable species. It was argued that the species that utilise the Seaford Wetlands are of such importance and their wetland habitats so rare that it is simply not worth the risk of allowing further urban encroachment. It was Ms Bekessy's and Mr Lansley's evidence also that the proposed development would reduce or undermine possible future opportunities for enhancement of the wetlands ecological values. As stated also by Mr Lansley, under cross-examination by Mr Cicero, the addition of housing is irreversible whereas infrastructure such as the bird observation platform and existing pedestrian paths - roundly criticised by all ecological experts as being a disturbance generator due to their proximity to open water areas - could be reconsidered.

42 Finally, the case for the permit applicant, based primarily on the evidence of Mr Mustoe, was that the development as amended - including agreement to transfer the rear 10m of the single dwellings lots to the Council for a realigned bike path and buffer - would not have so significant an environmental impact as to warrant a refusal of permit. In Mr Mustoe's opinion none of the more vulnerable or threatened species that are afforded statutory protection and are therefore a reason for the Ramsar listing, would be likely to be within a reasonable disturbance distance of the proposed buildings and works. In his opinion therefore, provided the construction period was carefully managed - with efforts made to minimise noise during that period, including pre-assembly of framework, there were unlikely to be any long-term impacts as a result of the development. Mr Mustoe supported the construction of an acoustic fence and the introduction of additional soft landscaping to screen the fence and dwellings.

43 There was no disputing the importance of the Seaford Wetlands as a habitat for protected birds. Page 23 of the Ramsar Management Plan provides a useful summary:

The Edithvale and Seaford Wetlands possess a suite of international, national, state and regional fauna conservation values, particularly in relation to avifauna. The significance of the wetlands as foraging habitats for seasonal population of migratory waders has been recognised for many years (Carter 1975 a, b). Seaford Wetlands is a site of international importance for the Sharp-tailed Sandpiper and fulfils one of the Ramsar Convention criteria for this species as it regularly supports more than 1% of the flyway population of the species (Watkins 1993). A relatively divers array of vegetation types and fauna habitats is present in the wetlands (Donnelly et al. 1985, Moore 1994) which are of high regional significance, given widespread habitat loss and fragmentation in the Mornington Peninsula and Greater Melbourne regions. These remnant habitats support a variety of native bird, mammal, frog, reptile, fish and invertebrate populations, several of which are of regional and state conservation significance. With the exception of the avifauna, other taxa remain undocumented. A report on the ecology of Seaford Wetlands in the mid-1980s (Donnelly et al. 1985) remains the most comprehensive account of the fauna to date. The non-avian fauna of the Edithvale Wetlands has not been documented.

A total of 192 bird species (including 12 exotic species) has been recorded since 1990 in the Edithvale - Seaford Wetlands. The avifaunal value of the Edithvale and Seaford Wetlands has been ascribed to the rarity of wetland habitats remaining in the region, the rarity of several bird species which utilise the wetlands, the overall avian richness and the drought refuse function that the wetlands provide compared to ephemeral wetlands of inland Australia (Carter 1975 a, b). Donnelly et al. (1985) note that the remnant wetlands on the Mornington Peninsula may provide an important habitat link between the nationally significant wetlands in Port Phillip and Westernport Bays.

Bird habitats at Seaford Wetlands are described by Donnelly et al. (1985). Sine 1990, 25 JAMBA/CAMBA species (61% of the total listed under these treaties) have been recorded. The Sharp-tailed Sandpiper is recorded in most years, in greatest numbers at Edithvale South.

Five species listed, or nominated for listing, under the Victorian Flora and Fauna Guarantee Act 1988 (Great Egret, Australasian Bittern, Baillon's Crake, Lewin's Rail and White-bellied Sea Eagle) have been recorded. State-significant populations and foraging and breeding habitat for the Australasian Bittern and Baillon's Crake, and regionally-significant populations and habitat for 19 other species, occur.

All three wetlands have been surveyed since the 1960s and have been the subject of detailed bird census programs (Edithvale North and South since 1989 and Seaford Wetlands since 1994). Mean and total numbers of wetland and non-wetland species and the counts of 22 selected species and eight guilds utilising distinct habitats, have been examined to assess whether avian species richness and abundance has changed over time with active management.

44 There was no real disagreement either that the proposed development would be likely to have some impact on the wetlands as a habitat for its protected bird species. Mr Cicero acknowledged as much in his closing submission. The question to decide therefore is whether, in light of the proposed 10m buffer (which we can impose as a condition of permit given the decision in relation to the question of law), the impact can be sufficiently ameliorated to warrant the grant of a permit.

45 Our ultimate conclusion is that it can in relation to most of the proposed dwellings, but not in relation to the two dwellings proposed for Nos. 41 and 43 Austin Road or for any two storey structure. The reason for this is attributable to our finding that a greater buffer distance is warranted in relation to those allotments and for any two storey development.

46 There was much discussion in the course of the hearing about the role of buffers as a means of reducing disturbance to birds. The Biosis Report of 1993 on the role of buffers in the south-east wetlands considered the nature of wetland buffers, using a criteria relying on distance from edge of water to human or disturbing activities. The report at page 6 acknowledges that:

The relative degree of sensitivity to disturbance of different species or types of birds is generally unknown, and the role of buffer width in ameliorating the effects of different types of disturbance stimuli has been little studied.

47 The report at page 5 also considered the difficulty of documenting disturbance. It notes that the literature dealing with the ability of birds to tolerate noise and other disturbance concentrates on those species that are most tolerant to disturbance and that this is partly due to such studies being oriented towards pest species which, by their nature, are more difficult to frighten. The report goes on to note however that:

There is little doubt in most ecologists minds that some species are sensitive to disturbance stimuli and will leave habitats that become too noisy or disturbed but there are virtually no data that document this.

48 At page 26 of the report, having surveyed bird disturbance within the Seaford Wetlands, the following implications for wetlands buffer design are set out:

Inspection of Figures 1, 2 and 3 shows that, on the information obtained in this study, there are a number of key distances that are relevant to the design of buffers. Firstly, there is a significant decrease in the number of species showing reaction to the types of disturbance that are most frequent at urban wetlands for distances from the source of the disturbance that are greater than 50-60m. Secondly, the ducks are the most disturbance-sensitive group and they are affected by disturbances at distances up to 80m. Thirdly, for extreme levels of disturbance (gun shots, etc), the effects operate over distances of at least 130m and probably more.

1. buffer widths less than 60m in areas subject to disturbance will reduce the effective available area of wetland habitat for most species.

2. buffer widths less than 90-100m in areas subject to disturbance will reduce the effective available area of wetland habitat for ducks.

3. buffer widths up to 150m or more may be required to buffer against more extreme disturbances, or as buffers for more sensitive species that may not have been observed in this study.

49 The proposed dwellings, with a 10m buffer excised from the rear of the single dwelling lots, can achieve a 60m buffer to the edge of water - except in the case of Nos. 41 and 43 Austin Street, the two most easterly lots. These lots are closest to the least buffered area of open water, referred to in the hearing as the duck pond, located to the east of the bird observation deck.

50 As noted earlier the Ramsar Management Plan recommends a distance of 60m from the edge of wetlands or where unavoidable provide dense screening vegetation at least 20m from the edge of wetland vegetation. It was on the basis of this latter provision that Melbourne Water accepted the 10m buffer which would in fact provide an additional 10m over and above the existing 20m setback that accommodates both vegetation and the bike path. However, as noted by Mr Lansley under cross-examination, the need for a permit is evidence of the situation not being unavoidable. It can be avoided by refusing a permit.

51 We are mindful of the fact that the management plan reference to buffers is not specifically tied to the Community Use Zone within which the subject land and most of the publicly accessible walk paths around the wetland are located. We have not been able to be persuaded however that this should prevent us from applying what might be termed best practice approach, or of adopting the precautionary approach set out as policy at Clause 22.06-9. The policy framework clearly invites a cautious approach in relation to development that might affect a scientifically significant and rare ecosystems. The policy outcomes sought refer also to enhancement. It is our conclusion that to bring development of this nature so close to the open water of the duck pond would unacceptably reduce the options for rehabilitating this area.

White Ash v Frankston CC [2004] VCAT 2170

At a glance

Court

Decision date

Source

Judgment (240 paragraphs)

White Ash v Frankston CC [2004] VCAT 2170 (28 October 2004)

Parties

Legislation Cited (1)