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VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING AND ENVIRONMENT LISTVCAT REFERENCE NO. P1789/2016 PERMIT APPLICATION NO. 5201665

CATCHWORDS

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

APPLICANT Australian Community Support Organisation Ltd

RESPONSIBLE AUTHORITY Moira Shire Council

REFERRAL AUTHORITY Goulburn Broken Catchment Management Authority

RESPONDENTS Country Fire Authority, Wunghnu-Numurkah Action Group, Alison Greenwood, Cliff Watters

SUBJECT LAND 104 Watters RoadNUMURKAH

WHERE HELD Melbourne

BEFORE Laurie Hewet, Senior MemberAnn Keddie, Member

HEARING TYPE Hearing

DATE OF HEARING 20, 21, 22, 23,24 & 25 February 2017

DATE OF INTERIM ORDER 6 March 2017

DATE OF ORDER 28 July 2017

CITATION Australian Community Support Organisation Ltd v Moira SC (No.2) [2017] VCAT 1133

ORDER

Permit granted1 In application P1789/2016 the decision of the responsible authority is set

aside.

2 In planning permit application 5201665 a permit is granted and directed to be issued for the land at 104 Watters Road Numurkah, in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:

The use of the land for a residential alcohol and drug rehabilitation centre in the Farming Zone

Construction of a building or construction or carrying out of works associated with a permit required use in the Farming Zone.

Construction of a building or construction or carrying out of works in the Rural Flood Overlay

Laurie HewetSenior Member

Ann KeddieMember

VCAT Reference No.P1789/2016 of 33

APPEARANCES

For applicant Ms Emily Porter of counsel instructed by Allens Linklaters. Ms Porter called expert and lay evidence from:

Ms S Rigo, town planner

Mr H Turnbull, traffic engineer

Mr V Winther, Chief Operations Officer Officer, ACSO

Ms Karenza Louis-Smith, Chief Executive Officer, ACSO

Mr A Hick, Manager Odyssey House

Dr Stefan Gruenert, psychologist.

Ms M Cooper, social planner

For responsible authority Mr Ian Pridgeon of Russel Kennedy Solicitors. Mr Pridgeon called expert evidence from:

Mr D Merrett, town planner Mr G Warne, agricultural

consultant Mr R Citroen, traffic engineer

For referral authority No attendance

For CFA Mr S Foster

For Objectors Mr John Hannagan of Harwood Andrews Solicitors appeared for Wunghnu-Numurkah Action Group and other objectors identified by Mr Hanagan


INFORMATION

Description of proposal It is proposed to use the land for a drug and alcohol rehabilitation centre. It is proposed to convert existing dwellings and outbuildings on the land and to construct three new buildings. Short term accommodation is proposed for up to 30 people who will receive structured programs, counselling, recreation and related activities. Up to 20 full time specialist staff are proposed to be employed, with on site staffing of 5 to 7 during day shifts and at least 2 over night staff. An orchard and market garden are proposed as part of the rehabilitation program.

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

Planning scheme Moira Planning Scheme

Zone and overlays Clause 35.07: Farming Zone Clause 44.03: Rural Flood Overlay

Permit requirements Clause 35.07-1: A permit is required to use land for a residential alcohol and drug rehabilitation centre.Clause 35.07-4: A permit is required to construct a building or construct or carry out works associated with a use in section 2 of Clause 35.07-1.Clause 44.03-1: A permit is required to construct a building or construct or carry out works. In the absence of a local floodplain development plan for the area, an application must be accompanied by a flood risk report to the satisfaction of the responsible authority. An application must be referred to the relevant floodplain management authority under Section 55 of the Act.


Land description The site is located on the south side of Watters Road, which is an unsealed rural road. The site has an area of 26.64 ha and comprises two dwellings and a number of associated outbuildings, all located in the northern section of the site. There is some evidence that the site has historically been used for tourist accommodation and receptions, but the Council has no record of planning permission having been issued for those uses. The Broken-Boosey State Park is located to the north. The Nine Mile Creek flows in a westerly direction through the Park. The review site is located almost entirely within the Creek’s flood plain. To the east, west and south, the area surrounding the review site comprises cleared farm land and associated dwellings. The Numurkah township is located about 7 kilometres to the north west of the review site. Shepparton, the largest regional town is about 30 kilometres away.

Tribunal inspection 21 February 2017.


REASONS1

1 This is an application to review the decision of the Responsible Authority to refuse permission for a drug and alcohol rehabilitation centre at 104 Watters Road Numurkah. The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:

a. The proposal is inconsistent with State and local planning policy framework

b. The proposal is inconsistent with the purpose of the Farming zone.

c. The proposal will have a detrimental impact on the amenity of the area.

d. The orderly use and development of the area will be affected.

e. The requirement of a Cultural Heritage Management Plan has not been met.

2 The Council’s decision was made notwithstanding a recommendation from its officers to grant a permit for the proposal.

3 At the hearing, the Council did not pursue the ground of refusal relating to the Cultural Heritage Management Plan (CHMP) because the Applicant has now prepared and had approved a voluntary CHMP.

4 In broad terms the Council’s position on this application is that, while it acknowledges that there is a need for a facility of this type, the review site is not suitable for the proposed use. The Council’s primary concern in this respect is that there is nothing in the planning scheme that identifies the site as a preferred location for the proposed use. Consequently, the Council submits that the site’s constraints, including its location in a floodplain and limited vehicle access options, render the site unsuited to the intended use and override any benefits associated with the establishment of a facility of this type at this location.

5 There are a large number of objectors to the application. In broad terms, the objectors support the Council’s submission about the suitability of the site for the intended use. The objectors emphasise the provisions of the planning scheme relating to the use of agricultural land. The objectors submit that the proposal will have a detrimental impact on legitimate agricultural uses in the area.

6 The objectors also raise concerns about the physical and environmental constraints affecting the site. With respect to the site’s location in a flood plain, the objectors submit that the application is ill conceived and unresolved. It is their submission that this use should not be located in a

1 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.


flood plain and in the absence of evidentiary support around the management of the flood risk and effluent disposal, the application is ill conceived and unresolved.

7 A Bushfire Management Overlay does not affect the review site. The CFA however identifies the site as being within an area at risk of grassfire and the Tribunal is therefore required to apply a precautionary approach to the consideration of the application. The CFA has provided consent to the grant of a permit subject to the imposition of specified conditions on any permit issued.

8 With respect to the submissions about the review site’s location in a flood plain, the Applicant submits that the Catchment Management Authority, which is a referral authority for applications on land in the flood plain, did not object to the application. Similarly, the Council did not require a Flood Risk Report to be submitted as part of the permit application. On that basis, the Applicant submits that we should be satisfied in relation to these matters.

9 Following the hearing, we issued an interim order providing the Applicant with the opportunity to prepare a flood risk report and a land capability analysis. In the interim order, we commented that a flood risk report is a mandatory requirement of the planning scheme under the Rural Flood Overlay and we were not prepared to disregard the failure to comply with that mandatory requirement. We commented that the acceptability of the proposal given its location in a flood plain and on a site almost entirely covered by an RFO, is one of the relevant matters in this case about which we are required to make findings. In the absence of a flood risk report and a land capability analysis, we are not in a position to make findings about the acceptability of the proposal.

10 The Applicant advised that it wished to take advantage of the opportunity provided by us to prepare a flood risk report and a land capability analysis. We have now received those reports and submissions about them have also been received from the Council and objectors. Significantly, neither the Council nor the objectors have requested a further hearing in relation to these matters.

11 Having received the flood risk report and a land capability analysis, and the submissions about them, there is now sufficient information available to us to allow us to proceed with an assessment of the proposal.

12 Having considered the submissions and the evidence presented to us, and having inspected the review site and surrounding area, we have concluded that the principal issues that must be decided in this case, can be categorised as follows:

Is the proposal an acceptable use in the Farming Zone?

Is the proposal acceptable having regard to the requirements of the Rural Flood Overlay and the physical constraints of the site?


Does the proposal contribute to unacceptable impacts on the amenity of the area?

13 We have concluded that, subject to the imposition of permit conditions that require the preparation and implementation of a management regime relating to specific aspects of the use, a permit should issue for this proposal.

14 We are satisfied that a balanced application of all relevant policies and provisions of the planning scheme leads us the conclusion that there is support at a strategic and policy level for this use. It is largely undisputed that a need exists for the use to service a drug and alcohol addiction problem in the community generally and in this region more specifically. The proposal’s location in the Farming Zone is acceptable in this instance because it will not have a significant adverse impact on existing and future agricultural operations. The loss of agricultural land associated with the site’s conversion to a drug and alcohol addiction facility is not significant. The proposal will not give rise to unacceptable amenity impacts.

15 In arriving at our conclusions, we acknowledge that there are physical constraints affecting the review site that do have implications in considering the acceptability of the use on this site. These constraints of course include the site’s location in a flood plain and the risk posed by grass fire. On balance however, we are satisfied that the risks posed by these constraints are capable of effective management. On this site, the preparation and implementation of a suitable management regime can be achieved through the imposition of appropriate permit conditions.

16 Our reasons for issuing a permit are set out below.

CHARACTERISATION OF THE PROPOSED USE17 During the course of the hearing, we received submissions about the correct

characterisation of the proposed use. The planning permit application was assessed by the Council as a “drug and alcohol rehabilitation centre” which is an innominate, permit required use in the zone. Both Mr Pridgeon for the Council and Mr Hannagan for the objectors submit that, having regard to the residential component of the use, involving short term accommodation for people who will receive structured programs, counselling, recreation and related activities, the characterisation of the use should reference this residential aspect of the use.

18 Submissions also referenced other defined uses such as Hospital and Group Accommodation that are potentially relevant to specific aspects of the proposal.

19 In this case, and having regard to the operational characteristics of the proposed use as explained to us, the real and substantive purpose of the use is the rehabilitation of people with addiction to drugs and alcohol. The residential component of the use is relevant having regard to the policy context in which residential uses in the Farming Zone are to be assessed.


20 There is no dispute in this case that irrespective of the characterisation of the use, the use is a section 2 permit required use in the zone. We have proceeded in our consideration of the application by characterising the use as a “residential alcohol and drug rehabilitation centre”.

IS THE PROPOSAL AN ACCEPTABLE USE IN THE FARMING ZONE?21 Both the Council and the objectors place significant emphasis on those

provisions of the planning scheme that support and protect agricultural uses in the Farming Zone. The Council and objectors submit the use is unacceptable because it removes from agricultural use an existing substantial land holding and because it has the potential to adversely affect the operation and future expansion and diversification of other agricultural uses in this area.

22 We were referred to a wide range of policies at both State and Local Planning Policy levels in support of the Council and objector submissions2. It is not necessary for us to repeat that material here in any detail because it is largely undisputed. We record our findings that relevant policies and zone provisions recognise the social and economic importance of the agricultural sector. The planning scheme seeks to protect agricultural land from fragmentation, conversion to non-agricultural use, the intrusion of incompatible land uses including residential uses, particularly in areas identified as strategic agricultural land. The growth and diversification of agricultural uses is encouraged. Encouragement is also provided for the process of farm consolidation that is considered fundamental to the long-term viability of the agricultural base of the Shire. The review site forms part of the Council’s identified “Growth Areas” in which growth and expansion of existing farm businesses and for new investment is encouraged3.

23 It is also necessary to record the purpose of the Farming Zone which is: To provide for the use of land for agriculture.

2 Following the conclusion of the hearing all Planning Schemes were amended on 31 March 2017 by Amendment VC134. The Amendment changes the Victoria Planning Provisions and all planning schemes in Victoria by introducing the new Metropolitan Planning Strategy and making corresponding updates to the State Planning Policy Framework. It also restructures Clause 11, includes policy-neutral updates and administrative changes and introduces new and updated incorporated and reference documents. We have reviewed that Amendment and we are satisfied that it has no significant affect on the issues to be considered in this case. We note that a number of Clause numbers have changed but the content of policy provisions have not changed to any significant degree. The policy provisions and the zone and overlay provisions remain consistent with the submissions and evidence put to us during the hearing. We therefore have not sought submissions from the parties about VC134, and we have assessed the application on the basis of the planning scheme provisions as they now exist.

3 Refer to State Planning Policy Framework at Clause 11.12 Hume, and the Local Planning Policy Framework at Clause 21.04 Settlement, Clause 21.05 Economic development. We were also referred to the Campaspe, Greater Shepparton and Moira Rural Land Use Strategy October 2008, and the Hume Regional Growth Plan, both of which recognise the social and economic importance of the agricultural sector in the region, and set out broad policy parameters to protect and enhance the sector. The recommendations and policy parameters in those documents are reflected in the State and Local Planning Policy Frameworks of the planning scheme.


To encourage the retention of productive agricultural land.

To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.

To encourage the retention of employment and population to support rural communities.

To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision

24 The decision guidelines in the Farming Zone reference General issues, Agricultural issues and the impacts from non-agricultural uses, Dwelling, Environmental and Design and siting issues. Before deciding on an application, consideration must relevantly be given to matters including the capability of the land to accommodate the proposed use or development, how the use or development relates to sustainable land management, the compatibility of the use or development with adjoining and nearby land uses. In relation to the impacts of non-agricultural uses consideration must be given to:

Whether the use or development will support and enhance agricultural production.

Whether the use or development will adversely affect soil quality or permanently remove land from agricultural production.

The potential for the use or development to limit the operation and expansion of adjoining and nearby agricultural uses.

The capacity of the site to sustain the agricultural use.

The agricultural qualities of the land, such as soil quality, access to water and access to rural infrastructure.

Any integrated land management plan prepared for the site.

25 In relation to Dwelling issues, the decision guidelines require consideration of;

Whether the dwelling will result in the loss or fragmentation of productive agricultural land.

Whether the dwelling will be adversely affected by agricultural activities on adjacent and nearby land due to dust, noise, odour, use of chemicals and farm machinery, traffic and hours of operation.

Whether the dwelling will adversely affect the operation and expansion of adjoining and nearby agricultural uses.

The potential for the proposal to lead to a concentration or proliferation of dwellings in the area and the impact of this on the use of the land for agriculture.

26 The Council and the objectors submit that the combination of State and local policy and the zone provisions, provides a stringent framework around which applications for non-agricultural uses in the Farming Zone are


required to be assessed. They submit that this proposal is unacceptable when assessed within that framework for the following specific reasons:

The proposal permanently removes productive agricultural land in an area identified as being strategically important and in which growth in agricultural investment is encouraged.

The proposal will preclude the potential for consolidation of this small holding into one of the larger adjacent or nearby farming enterprises and reduce opportunities for prospective agricultural investment in the area.

The proposal has the potential to limit the operation and expansion of adjoining and nearby agricultural uses. As an example of this potential impact, we were advised that owners of adjoining land had made preliminary enquiries about the prospect of cultivating poppies and cannabis under a new regulatory regime that envisages the cultivation of such crops. We were provided with initial advice from regulatory authorities expressing some concern about the impact of a drug and alcohol rehabilitation centre on prospects of obtaining approval for the cultivation of those crops.

In a more general sense, the residential component of the proposed use raises fundamental issues about the impact of the use on the operation and expansion of adjoining and nearby agricultural uses. Local policy specifically discourages residential uses in the Farming Zone because prospective agricultural investment is jeopardised, deterred, or completely lost by land uses and developments that have the potential to compromise the scale and location of such investment. In particular, agricultural investment is far less likely where land is already fragmented in ownership with housing dispersed throughout4.

The Farming Zone is not the appropriate location to establish a use that is reliant on tranquillity and serenity as part of the rehabilitation program. In the Farming Zone generally, and in this location specifically residents will be confronted with the reality of working farms on nearby properties on which crop spraying and the use of heavy machinery is to be expected.

The planning scheme provides no policy basis to support the location of a use of this type in a Farming Zone generally and there is no locational imperative for the proposal to be located on this site.

27 Both the Council and objectors referred us to and relied on Tribunal decisions in which applications for non-agricultural uses in the Farming Zone had been rejected. In the cases referred to us, the Tribunal held that for reasons applying in those cases, the intrusion of the non-agricultural uses proposed in those applications, would have an adverse impact and

4 Clause 21.05-1.


would not be compatible with the policies and objectives for agricultural areas.

28 We agree with the Council and the objectors that the planning scheme does establish a relatively stringent policy context in which applications for non-agricultural uses in the Farming Zone are to be assessed. We acknowledge that the intrusion of non-agricultural uses into agricultural areas does have the potential to undermine the viability and operational integrity of agricultural areas and to prejudice ongoing investment in agricultural production. We also acknowledge that care must be taken with the assessment of each individual application because often, it is the cumulative impact of many individual decisions that ultimately lead to the degradation of individual agricultural uses and the viability of an agricultural area more generally.

29 As we have discussed above, there is however, a discretion to grant a permit for this use in the Farming Zone. The responsible authority and on review the Tribunal must decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any of the other decision guidelines in Clause 655. In all cases, it is important to recognise that a balanced application of all relevant policies and considerations must be undertaken in order to arrive at a conclusion about the acceptability of the proposal6.

30 In this case, we are very conscious that the Council’s local policy framework in particular places significant emphasis on the importance of agricultural production in this locality to the economic and social wellbeing of the community, and the consequent importance of protecting the land resource encompassed within the Farming Zone.

31 In any application for a non-agricultural use in the Farming Zone, the grant of a permit will typically have some adverse impact on the retention and protection of agricultural land. This does not mean that a permit can never be issued for a non-agricultural use in a Farming Zone. In circumstances where, for example, the land area to be lost to agriculture is not significant, and neighbouring farm operations are not compromised, the grant of a permit for a non-agricultural use can be contemplated.

5 Clause 31.01. 6 Clause 10.04 Integrated decision making relevantly states that:

Society has various needs and expectations such as land for settlement, protection of theenvironment, economic well-being, various social needs, proper management of resourcesand infrastructure. Planning aims to meet these by addressing aspects of economic,environmental and social well-being affected by land use and development.Planning authorities and responsible authorities should endeavour to integrate the range ofpolicies relevant to the issues to be determined and balance conflicting objectives in favourof net community benefit and sustainable development for the benefit of present and futuregenerations.


32 There are also circumstances in which the benefit to the community of a proposed use can be identified and is of such magnitude that any adverse impact can be outweighed by that benefit.

33 In this case, the need for a use of this type is a relevant consideration.

34 We have been presented in this case with a wealth of evidence about the unfortunate reality that there is a pressing need for drug and alcohol rehabilitation facilities to service this region of Victoria. Largely the evidence on this point is undisputed7 and it is not necessary for us to analyse that evidence here in any detail. We accept the evidence and acknowledge the growing problem of drug and alcohol addiction in the community generally and in this region specifically. We also acknowledge the evidence about the changing nature of addiction associated with the growing availability of different types of drugs, an occurrence that necessitates different approaches to the treatment of addiction.

35 The issue of need in relation to drug and alcohol rehabilitation facilities and the role need plays in balancing competing planning scheme policies and objectives, has been the subject of recent Tribunal decisions. Relevantly, in Association for Better Living and Education v Yarra Ranges SC [2015] VCAT 868, the Tribunal considered an application for a drug and alcohol rehabilitation centre in a residential area (zoned Low Density Residential). In that case, the Tribunal considered whether the need for the facility was so great as to influence the assessment of the concerns expressed about the location of the use in a residential area, and the impacts of the use on the amenity and character of that residential area. The Tribunal commented:

The need for drug and alcohol rehabilitation facilities is therefore one of the many relevant factors that we must balance against other relevant and sometimes conflicting policies, expectations and objectives, in arriving at our decision. The planning scheme requires us to undertake the balancing exercise in favour of net community benefit and sustainable development for the benefit of present and future generations……

In the present case, our consideration of the issue of need has been primarily related to our assessment of the suitability of this use for this site. Principally, in relation to need, the question for us is to decide whether the need for this facility is so great as to influence our assessment of the concerns expressed about the location of the use in a residential area, and the impacts of the use on the amenity and character of that residential area.

The Tribunal has also previously commented on the complexity of the issue of need and its relationship to the consideration of site suitability:

7 Some objectors did make submission that appeared to question the extent to which there is a need for this facility but the submissions were not rigorously pursued.

8 In that case the Tribunal was constituted by Senior Member Hewet and Member Taranto


Need is a fundamental concept in town planning, because town planning is essentially concerned with shaping our physical environment to meet the social economic and environmental needs of the community. However in individual development applications the role of need is complex. At one end of the scale, there are ubiquitous land uses in relation to which the Tribunal has said that need is not a matter for the planning system, rather it is a matter for the competitive market place. On the other hand there are important community based uses where the Tribunal has found that the need for the use can outweigh other important, and ordinarily decisive, planning considerations. An often quoted example of this latter case is the helipad at the Alfred Hospital.

The reference to the Alfred Hospital helipad in that decision is pertinent because in that decision the Tribunal found that the provision of a helipad at the hospital was of such overwhelming community benefit, a permit should issue notwithstanding the significant amenity impacts it would have on neighbouring residents. The decision probably represents the “high water mark” in terms approving proposals on the basis of need and community benefit overriding other relevant considerations. In the Alfred Hospital case, the need for the helipad to be located on that site was a determinative consideration.

36 The extent to which the need for a use will influence the decision to grant a permit will vary depending on the circumstances of each case. For example, greater or lesser weight would be given to this factor depending on a proposal's location, the zoning of the land, the applicable policy framework, the character of the area and the pattern of surrounding land uses, and also the nature of the use itself.

37 In Association for Better Living and Education the Tribunal ultimately concluded that need was not a determinative consideration in that case and the application was refused.

38 In the present case we have concluded that need is not a determinative consideration. The proposal is not for a use that by virtue of its overriding importance requires it be located on a specific site. Need is not a factor that outweighs or overwhelms other normally decisive planning considerations.

39 Need is however a relevant and influential consideration in the exercise of discretion and in informing our conclusion about the acceptability of the proposal. The balancing exercise that we are required to carry out has had regard to the need for the facility but is also based on our assessment that the proposal will not contribute in a significant way to the loss of agricultural land or prejudice existing or future agricultural production in this locality. We are therefore satisfied that the proposal is acceptable in terms of meeting the objective and decision guidelines of the Farming Zone.

40 In arriving at our conclusions on this point we have had regard to the following considerations:


The planning scheme does provide a broad strategic and policy context that emphasises the importance of ensuring that social, community and health facilities are made available at appropriate locations to meet identifiable needs of the community. The planning scheme is silent about the preferred location for drug and alcohol rehabilitation facilities and consequently decisions about their location are necessarily undertaken on a site by site basis9.

The loss of agricultural land resulting from the grant of a permit is not significant. The review site has an area of 26.64 ha. The proposed use is to be located on that part of the site that incorporates the existing residences and outbuildings and sheds and which has been landscaped and is reasonably well vegetated. Most of the existing buildings are to be re-used. The new buildings will occupy about 2.5% of additional land and this combined with that part of the site not currently available for agricultural use, accounts for 9.5% of the total site area. About 23.5ha remains available for agricultural use. There is also an area which is proposed to be cultivated as part of the facility’s therapy or rehabilitation program. We have not included this area in terms of its contribution to agricultural production on the land because based on the evidence, it is unlikely to be commercially viable and is in any event intended to be for therapeutic rather than commercial purposes10.

Because of the concentration of the use in the north east sector of the site, the configuration and area of paddocks available for agricultural use remains largely unaffected by the proposal. The concentration of the activities and the accommodation component in a cluster in the northeast sector of the site minimises functional intrusion into agricultural land.

The concentration of activities into a confined part of the site is also relevant in terms of assessing whether the residential component will be adversely affected by agricultural activities on adjacent land.

9 Clause 19.02 of the Planning Scheme. This clause has an objective to assist with the integration of health facilities with local and regional communities. Strategies emphasise the location of health-related facilities (including acute health, aged care, disability services and community care facilities) with consideration given to demographic trends, the existing and future demand requirements and the integration of services into communities. Hospitals and other large health service facilities in designated health precincts and areas highly accessible to public and private transport10 The Applicant relied on the recent history of the site’s use for non-agricultural purposes in support

of their proposition that the proposal does not contribute to a significant loss of agricultural land. Ms Rigo’s evidence is that the northeastern part of the site has been used for non-agricultural uses for about 20 years. We were not provided with evidence of this recent history in the form of for example, permits issued for those uses. We have not relied on assertions about the recent history of the site’s use. Our inspection of the site did however confirm the northeast part of the site including the residence and surrounds are not currently in agricultural use. We have proceeded in our analysis on the basis that the loss of land for agricultural use excludes that part of the site not currently available for agricultural uses.


The prospect of the balance of the land continuing to be available for agricultural use can be enhanced by the preparation of a land management plan aimed at achieving sustainable land management practices for the balance of the land.

Concerns about the residential component of the proposed use, and the impact that residential uses generally have on the capacity of neighbouring properties to function and expand, are acknowledged. A distinction does need to be drawn however between this proposal that incorporates short term and specific purpose accommodation, and conventional residential uses that are typically intended for permanent or long term residents. This is not a case in which people, who have invested in a rural/residential lifestyle based on perhaps idealistic expectations about the nature of the rural environment, may feel threatened by being exposed to the realities of living near working farms. In this case, the short-term nature and specific purpose of the accommodation provided on the review site reduces the potential for land use conflicts of the type often encountered when residential uses intrude into agricultural areas. The management regime associated with the operation of the proposed use is also a factor in this respect. The management regime provides a structured framework in which the accommodation component of the use functions.

We cannot discount the possibility that on neighbouring properties some agricultural uses or uses related to agriculture that require separate approval either by way of planning permission or through other regulatory mechanisms, may be impacted because of the rehabilitation centre’s location on this site. The example presented to us about cannabis and poppy cultivation comes to mind on this point. For the reasons we have discussed above, we are satisfied that agricultural uses that are permitted as of right in the Farming Zone will not be significantly impacted if at all, by the existence of the rehabilitation centre. In relation to other uses that require permission, they will need to be assessed on their merits at the appropriate time. The existence of the rehabilitation centre may be a factor for consideration in the assessment of such applications but the centre’s existence does not necessarily preclude such uses from obtaining appropriate approvals.

There is no aspect of the proposal that would lead us to conclude that the grant of a permit would contribute to a concentration or proliferation of dwellings or other uses that would prejudice the use of land in the area for agriculture.


IS THE PROPOSAL ACCEPTABLE HAVING REGARD TO THE REQUIREMENTS OF THE RURAL FLOOD OVERLAY AND THE PHYSICAL CONSTRAINTS OF THE SITE?41 The Council and the objectors submit that the review site is not suitable for

the proposed use because of the site’s constraints including its location in a floodplain with limited vehicle access options. They submit that this use should not be located in a flood plain and in the absence of evidentiary support around the management of the flood risk and effluent disposal, the application is ill conceived and unresolved.

42 The Council and the objectors referred specifically to policy in relation to Floodplain management at Clause 13.02 and 21.03.

43 We commented specifically on these matters in the Order dated 6 March 2017. So as to provide context to our findings on these matters, we revisit our commentary below.

44 The review site is located in a rural area on land zoned Farming under the Moira Planning Scheme. The site is also affected by Rural Flood Overlay (RFO). The purpose of the RFO is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To identify waterways, major floodpaths, drainage depressions and high hazard areas which have the greatest risk and frequency of being affected by flooding.

To ensure that any development maintains the free passage and temporary storage of floodwater, minimises flood damage and is compatible with flood hazard, local drainage conditions and the minimisation of soil erosion, sedimentation and silting.

To reflect any declarations under Division 4 of Part 10 of the Water Act, 1989 if a declaration has been made.

To protect water quality and waterways as natural resources in accordance with the provisions of relevant State Environment Protection Policies, and particularly in accordance with Clauses 33 and 35 of the State Environment Protection Policy (Waters of Victoria).

To ensure that development maintains or improves river and wetland health, waterway protection and flood plain health.

45 A permit is required to construct a building or to construct or carry out works pursuant to the RFO. Under Clause 44.03-3 of the RFO a Flood Risk Report to the satisfaction of the responsible authority must accompany an application if a local floodplain development plan for the area has not been incorporated into this scheme. We were not provided with any evidence of the existence of a local floodplain development plan. Clause 44.03-3 specifies the matters that a Flood Risk Report must consider as follows:


The State Planning Policy Framework and the Local Planning Policy Framework.

The existing use and development of the land.

Whether the proposed use or development could be located on flood-free land or land with a lesser flood hazard outside this overlay

The susceptibility of the development to flooding and flood damage.

The potential flood risk to life, health and safety associated with the development. Flood risk factors to consider 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 or accessway is flooded

The effect of the development on redirecting or obstructing floodwater, stormwater or drainage water and the effect of the development on reducing flood storage and increasing flood levels and flow velocities.

The effects of the development on river health values including wetlands, natural habitat, stream stability, erosion, environmental flows, water quality and sites of scientific significance.

46 An application must be referred to the relevant floodplain management authority under Section 55 of the Act unless in the opinion of the responsible authority the proposal satisfies requirements or conditions previously agreed in writing between the responsible authority and the floodplain management authority. We were not provided with any written agreement to that effect. The application was referred to the Goulburn Broken Catchment Management Authority (CMA).

47 A Flood Risk Report had not been prepared for this application. The Applicant submits that because the CMA did not object to the permit application, and because the Council did not require a Flood Risk Report to be submitted as part of the permit application, we ought to be satisfied that the flood risk aspects of this proposal have been resolved to the satisfaction of the responsible authority. The Applicant submits that the Tribunal should also be satisfied in relation to these matters and a Flood Risk Report is not required.

48 The submission of a Flood Risk Report is a mandatory requirement of the RFO. It is not open to the Council to determine that a Flood Risk Report is not required. Both the Council’s and CMA’s assessment of an application must be informed by the contents and the analysis of the Flood Risk Report.


49 The Applicant submitted that if we concluded that a Flood Risk Report is a mandatory requirement of the RFO we should exercise our discretion under Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1988 to disregard the failure to comply with a planning enactment.

50 We recorded in the 6 March 2017 Order that we are not prepared to disregard the failure to comply with a mandatory requirement of the planning scheme. We commented that having regard to the nature and intensity of the proposed use the acceptability of the proposal given its location in a flood plain and on a site almost entirely covered by an RFO, is one of the relevant matters about which we are required to make findings. We recorded that we are not able to make findings about the acceptability of the proposal under the RFO in the absence of a Flood Risk Report.

51 With respect to the submissions about the lack of a land capability analysis, the proposed use a Section 2 permit required use in the zone. There is a range of matters we must consider in deciding whether the proposed use is acceptable in the Farming Zone. Decision guidelines at Clause 35.07-6 require us to consider matters (in addition to the decision guidelines at Clause 65) including the following:

The capability of the land to accommodate the proposed use or development, including the disposal of effluent.

52 The planning permit application considered by the Council proposed short-term accommodation on the site in excess of 40 people. A works approval for an effluent disposal system was therefore required to be approved by the EPA. The EPA did not object to the application subject to the imposition of permit conditions requiring the applicants to obtain a works approval. The amended application now before us has reduced the accommodation component of the proposal and a works approval is no longer required.

53 The 6 March Order expressed our surprise that a land capability analysis had not been prepared and that Council officers had not required it as part of their assessment of and support for the application. A land capability analysis is an essential component of the preparation of any effluent disposal system. In the context of this proposal on land located in a flood plain and almost entirely affected by the RFO, we regard a land capability analysis as an essential piece of information on which a decision about the capability of the land to accommodate the proposed use and to dispose of effluent, is to be made.

54 We provided the Applicant with the opportunity to prepare a flood risk report and a land capability analysis. The Applicant advised that it wished to take advantage of the opportunity provided by us to prepare a flood risk report and a land capability analysis. We have now received those reports and submissions about them have also been received from the Council and objectors.


55 With respect to the Flood Risk Report11, the report prepared by Water Technology provides a description of the site and surrounding area, the proposed development, and documents the flooding context in which the analysis is undertaken. The report also documents the methodology used in analysing the flood risk associated with the proposal. The report concludes in summary:

During a 1% AEP flood, it is possible that most of the development site would not be inundated. At worst it could be expected to be inundated to maximum depth of up to only about 200 mm. Corresponding flow velocities would be low.

The proposed development will only be susceptible to inundation during an extreme flood. The susceptibility to flood damage will be minimal as the floor levels of the buildings will be at least 400 mm above the highest estimate of the 1% AEP flood level.

The potential flood risk to life health and safety associated with the development will be low because:

• development is only likely to be inundated during an extreme flood. Although the duration of such flood may be two days or more depth of inundation will be shallow (typically less than 200 mm), the flow velocity will be small and there is ready access to high ground.

• Parts of the access (Watters Road) could be expected to be inundated for up to 2 days during a 1% AEP flood.

• There is adequate flood warning (24 to 36 hours) of the likelihood of an extreme flood.

• The Flood risk to the occupants of the floodplain residence and emergency personnel will be low

• A Flood management plan will be required to manage any risk associated with access during an extreme flood

The site is on the very edge of the area that is likely to be inundated during an extreme flood. The development will have no effect on redirecting or obstructing flood water, stormwater or drainage water. Similarly, the development will have no effect on flood storage and will not increase flood levels or flow velocities.

The development site is currently grazing land. The proposed development will have no impact on river health values including wetlands, natural habitat, stream stability, erosion, environmental flows, water quality or sites of scientific significance. The proposed landscaping and re-establishment of native woodland along Watters Road will enhance the habitat value of the site.

11 Final Report 104 Watters Road, Numurkah Flood Risk Report, May 2017 prepared by Water Technology


56 The Land Capability Analysis12 provides a desktop analysis within the context of the regulatory regime relating to the proposal and the site. The report notes that the site is identified as being a “very high risk receiving environment” in the Council’s Domestic Waste Water Management Plan (DWMP). The report provides a description of the site and surrounding area, including the geology, topography, vegetation, climate, hydrogeology, surface water and flood potential. The proposed development is also discussed as is the methodology for undertaking the analysis.

57 The analysis identified a series of moderate and major constraints associated with on-site wastewater management for the proposal. These are summarised below:

The site is located in the Flood overlay. Detail presented within the draft Numurkah Flood Plain Study, indicates flooding would likely be confined to the north-eastern and north-western areas of the site with inundation depths below 0.25 m.

Nine Mile Creek in addition to several irrigation channels and surface water dams are identified within the vicinity of the site which require suitable setback distances.

Category 6b soils are identified which require secondary treatment of effluent and conservative loading rates.

Some dispersion and slaking of soils are identified and may be increased through salt loading which requires soil renovation.

A maximum daily hydraulic loading of 4,650L/day is expected to be generated by the proposal

58 Because of the identified constraints, the report recommends secondary treatment of wastewater followed by effluent application via sub surface irrigation as a means of avoiding unacceptable risk to human health or the environment. A central sub surface irrigation for application of secondary effluent is recommended. On that basis, the report concludes that the cumulative risk to human health and the environment will be low based on the implementation of a series of recommendations and conditions.

59 The Council and the objectors raised in their submissions concerns about aspects of both reports. In particular they queried the veracity of some data that was relied on in the methodology applied to arrive at the conclusions reached. The Council and the objectors relied on anecdotal observations provided by local residents in support of their submissions that the analysis undertaken in both reports are overly generous to the applicant. They submit that the reports do not accurately reflect observed conditions on the site and in the surrounding area and as such neither report can be regarded as providing a conservative analysis of the flood risk and of the environmental impacts associated with effluent disposal.

12 Land Capability Assessment for Onsite Wastewater Management prepared by Ground Science.


60 Notwithstanding the criticisms of both reports presented by the Council and the objectors, we are satisfied that the reports provide us with sufficient information to assess the acceptability of the proposal on this site.

61 It is important to note in this respect that the RFO and associated policy does not require us to be satisfied that the proposal poses no risk to life, health and safety. The RFO requires among other things that the flood risk is identified, thereby allowing an assessment to be made about the acceptability of the risk, having regard to relevant risk factors.

62 Based on the material that is now available to us, we are satisfied that the flood risk characteristics of the site is appropriately characterised as low because inundation of the site is likely to be limited to shallow depths in 1% AEP flood events, the flow velocity will be small, and significant warning time is available13.

63 Even allowing for the low flood risk characterisation, the nature of the proposed use including the highly structured and managed framework in which the use is to be operated, further reinforces our view that the proposal is acceptable. Through the implementation of a management plan as recommended by Water Technology, the flood risk is capable of being further reduced.

64 With respect to the Council and objector criticisms of the Flood Risk Report, we appreciate that local knowledge, observed events and anecdotal recounting of those events, can play a valuable role in painting a complete picture of the constraints affecting a site. We acknowledge that there may be occasions when the site could be affected by flooding in the manner identified by objectors. On such occasions however, we are not persuaded that our assessment of the site’s flood risk characteristics would significantly change from that derived from the Flood Risk report. Management of the risk to acceptable levels would still be possible.

65 Because of the limited additional development proposed for the site, those objectives of the RFO relating to the maintenance of river and wetland health, waterway protection and flood plain health are achieved.

66 In relation to the Land Capability Analysis, this document demonstrates to our satisfaction that, subject to the detailed design and the implementation of the recommendations contained in the report, the disposal of wastewater is capable of being achieved in accordance with relevant regulatory guidelines.

67 Although a Bushfire Management Overlay does not affect the site, it is located in an area at risk of grassfire. The CFA does not oppose the grant of a permit subject to the imposition of conditions on any permit issued. The CFA’s conditions are aimed at mitigating the risk to life and property to acceptable levels and are summarised as follows:

13 We note that Water Technology’s analysis is consistent with the assessment of the application undertaken by Goulburn Broken Catchment Management Authority.


Access requirements are required to enable practical access for fire appliances.

A minimum of 45,000 L static water supply with specified unobstructed fittings are required to be provided.

Management of grassland within 30 m of buildings during the declared fire danger period is necessary.

An emergency management plan documenting emergency management procedures to be undertaken in the event of an incident must be prepared.

68 Subject to the implementation of the CFA’s conditions, we are satisfied that the risk to life and property is capable being mitigated to acceptable levels.

DOES THE PROPOSAL CONTRIBUTE TO UNACCEPTABLE IMPACTS ON THE AMENITY OF THE AREA?69 We received submissions about the impact of the proposal on the amenity

of the area and residents of surrounding properties. In broad terms, the concerns related to matters including increased traffic, generation of dust and rocks, reduced safety because of increased traffic using local roads and the speed of that traffic. Concerns were also expressed about the behavioural aspects of patients and the impact of these on the safety of neighbouring residents.

70 In relation to these matters, Ms Rigo provided evidence about the amenity impacts of the proposal and we broadly agree with that evidence. The proposed new buildings are located about 0.9 klms from the nearest neighbouring dwellings which are located on the north side of the vegetated Nine Mile Creek. The proposed buildings have a low visual profile and will have no significant impact in this rural landscape.

71 Concerns about resident safety associated with the behaviour of patients/residents at the rehabilitation centre, are acknowledged. The Tribunal has consistently emphasised, in considering applications of this type, that a distinction must be drawn between what people perceive the impacts of this use will be and the reality of those impacts, based on an objective and dispassionate review of relevant material. In a number of recent decisions the Tribunal has commented that it is perfectly reasonable for residents to hold the fears they do, but the Tribunal must be satisfied that there is a factual basis to those fears in order for it to conclude that the use will result in the amenity impacts alleged by the residents14.

72 The submissions we received in relation to this matter have not persuaded us that there is a factual basis sufficient for us to conclude that the use will result in the alleged amenity impacts. It is also appropriate for us to consider the management regime associated with the proposed use in

14 Self Help Addiction Resource Centre Inc v Glen Eira CC [2005] VCAT 2647, Association for Better Living and Education v Yarra Ranges SC [2015] VCAT 86, Hamm v South Gippsland SC [2016] VCAT 1253


assessing the objector concerns. We were provided with a draft management plan and we are satisfied that it provides a reasonable framework around which the day to day operations of the facility will function.

73 With respect to traffic related matters, the evidence of both Mr Citroen and Mr Turnbull has assisted us. Both witnesses conclude that there are no traffic engineering reasons that would prevent the issue of a permit. Their evidence did however depart on matters of permit conditions. Mr Citroen recommends a number of measure including the sealing of two sections of Kellys Road abutting existing dwellings. This is recommended as a dust suppression measure. Mr Turnbull disputes the need for the measures recommended by Mr Citroen because of the low traffic volumes generated by the proposal.

74 The additional traffic volumes generated by the proposal are very low and do not warrant the sealing of access roads, even to the limited extent recommended by Mr Citroen. We note that the small number of dwellings located on Kellys Road and Watters Road are setback generous distances. These roads currently service a number of rural activities conducted in the area and dust is generated by existing vehicles using the roads. The small increase in vehicle movements using the roads will not significantly alter the existing amenity of dwellings that abut those roads. We also agree with Mr Turnbull that because of the management regime applying to the proposed use, the routes used to access the site can be controlled to ensure that the preferred access route to the site (Kellys Road and Watters Road) can be adhered to.

CONCLUSION75 It follows from the above reasons that it is our conclusion that the decision

of the responsible authority should be set aside and a permit issue.

76 In deciding the conditions to be included on the permit we have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from our reasons.

Laurie HewetSenior Member

Ann KeddieMember


APPENDIX A – PERMIT CONDITIONS

PERMIT APPLICATION NO: 5201665

LAND: 104 Watters RoadNURMURKAH

WHAT THE PERMIT ALLOWS

In accordance with the endorsed plans:

The use of the land for a residential alcohol and drug rehabilitation centre in the Farming Zone

Construction of a building or construction or carrying out of works associated with a permit required use in the Farming Zone.

Construction of a building or construction or carrying out of works in the Rural Flood Overlay

CONDITIONS:

1 The plans to be endorsed and which will then form part of the permit are the plans substituted by the Victorian Civil and Administrative Tribunal by its Order dated 5 December 2016.

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

3 No more than 30 residential clients and 5 staff members may be accommodated on the land overnight at any time.

4 At all times when residents participating in an alcohol and/or drug rehabilitation program are on the site, a minimum of 2 staff members shall be present on the site (including overnight). Such staff must be suitably qualified and experienced in the management and supervision of people with drug and alcohol dependency.

5 Prior the commencement of the use, a management plan must be prepared and submitted to the responsible authority. The plan must be to the satisfaction of the responsible authority. Once approved the use must be carried out in accordance with the provisions of the management plan to the satisfaction of the responsible authority. The management plan must be generally in accordance with the management plan (titled Draft – Proposed


Management Plan Brookfield Recovery Centre 2017) tabled at the hearing of the Victorian Civil and Administrative Tribunal. The management plan must include (but is not limited to):

(a) a complaints handling procedure.

(b) a community education program in relation to the operation of the use.

(c) land management practices including management of weeds and vermin, fire prevention, erosion control and stock control.

(d) emergency management in times of flood, bushfire or other natural disaster.

The management plan may be amended with the written consent of the responsible authority.

6 No fewer than (20) car spaces must be provided on the land for the use and development, including (2) spaces clearly marked for use by disabled persons.

7 The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:

(a) transport of materials, goods or commodities to or from the land

(b) appearance of any building, works or materials

(c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil

(d) presence of vermin

8 No external sound amplification equipment or loud speakers are to be used for the purpose of announcement, broadcast, playing of music or similar purpose, except one which is audible only within the subject land.

9 The use must not commence until details of the proposed treatment of all sewage, sullage and waste water, including waste water recycling, is submitted to and approved by the Responsible Authority and any licences or permits required from the Council or any other authority have been obtained. The treatment of all sewage, sullage and waste water must be generally in accordance with the recommendations of the Land Capability Analysis submitted to the Victorian Civil and Administrative Tribunal (report titled Land Capability Assessment for Onsite Wastewater Management prepared by Ground Science, dated 15 May 2017). The treatment system must be installed and thereafter maintained in accordance with the Land Capability Assessment to the satisfaction of the responsible authority.

10 Prior to construction commencing on the site, the applicant must provide a drainage plan that accords with the provisions of Clauses 17 (Rural Drainage) of Council’s Infrastructure Design Manual [IDM], and has been


prepared to the satisfaction of the Responsible Authority. In particular demonstrate that:

(a) all storm-water deposited upon, and being transferred through, the developed site in a 10% AEP event must be collected and conveyed by underground pipes and/or by constructed channels to a legal point of discharge nominated by the Responsible Authority;

(b) no part of any channel used to convey storm-water through the subject property may pass through the zone of influence of the septic tank absorption field;

(c) all roof water from buildings and surface water from hard paved areas must be collected and conveyed to a drainage easement or to the legal point of discharge so as to prevent storm water nuisance to adjoining land; and

(d) stormwater drainage plans for the development must incorporate measures to enhance the quality of water discharged from the site and to protect downstream infrastructure and waterways.

11 Prior to the commencement of the use the following works must be completed in relation to the intersection of Watters Road with Kellys Road to the satisfaction of the responsible authority:

Curved intersection warning sign.

Type 1 sight board at the terminal of Watters Road with Kellys Road.

Side road junction warning sign in Kellys Road at the norther approach to the Watters Road intersection.

12 Prior to the commencement of the use, all drainage infrastructure required by the approved drainage plan must be constructed in accordance with plans and specifications approved by the Responsible Authority.

13 No contaminants be permitted to enter the storm-water drainage system under any reasonably foreseeable circumstances.

14 Prior to the commencement of the use, all new vehicle crossings as shown on the endorsed plan must be constructed to the standards of Council’s Infrastructure Design Manual [IDM] Clause 12.9. (Rural Vehicle Crossings), and to the satisfaction of the Responsible Authority. In particular, works must be in accordance with Council’s IDM Standard Drawing SD255 (Rural Entrance).

15 Prior to the commencement of the use, and in accordance with Clause 14 (Carparking) of Council’s Infrastructure Design Manual [IDM], any internal customer parking, manoeuvring areas and loading and unloading areas created by the proposed development and as shown on the endorsed plan must be constructed to an all-weather standard and drained in


accordance with plans and specifications approved by the Responsible Authority.

16 Vehicle access and egress from the property must take place in a forward direction at all times.

17 In accordance with the Clause 22 (Environment Management During Construction) of Council’s Infrastructure Design Manual [IDM], appropriate measures, satisfactory to the Responsible Authority, must be taken to minimise erosion and to retain dust, silt and debris on site, both during and after the construction phase.

18 If any damage to existing Council infrastructure occurs as a result of this development, the affected infrastructure is to be replaced by the applicant, at the applicant’s cost to the specification and satisfaction of the Responsible Authority.

19 No excavated or construction materials may be placed or stored outside the site area or on the adjoining road reserves, except where the materials are required in connection with any road or footpath construction works in such reserves that are required as part of this permit.

20 All drains and batters, and all areas disturbed in the course of the works, must be topsoiled and seeded to establish grass cover. Reserve areas must be tidied, levelled and trimmed to a standard capable of being maintained by a small tractor and slasher.

21 Native vegetation (including trees, shrubs, herbs and grasses) must not be removed, lopped or destroyed unless a permit has been granted by the Responsible Authority.

22 Earthworks and construction must not cause damage to native vegetation to be retained (including trees, shrubs, herbs and grasses) and to natural drainage lines and/or watercourses.

23 A ‘Tree Protection Zone’ (TPZ) must be applied to native vegetation within the works area during development including earthworks and construction. The TPZ must have a minimum radius 12x the Diameter at Breast Height (being 1.3 metres from ground level); the TPZ of trees must be no less than 2 m or greater than 15 m.

24 The TPZ must include a temporary protection fence constructed of star pickets/mesh/flagging or similar to the satisfaction of the Responsible Authority.

25 The temporary fence must remain in place until all works and development are completed, to the satisfaction of the Responsible Authority.

26 No trenching, soil excavation, stockpiling or dumping of soil is to occur within the TPZ without the written consent of the Responsible Authority.

27 Before works and development start, a native vegetation conservation 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 and will form part of this permit. The submitted plan must show:

(a) Identification of existing native vegetation on the subject land,

(b) Actions to provide conservation of native vegetation and habitats within the subject land, including exclusion of the following activities from areas of native vegetation on the subject land:

materials or equipment storage

parking, servicing and fueling of equipment and vehicles;

storage of fuel, oil dumps, chemicals or other waste;

open cut trenching, cultivation, grading or excavation works;

alteration to drainage lines;

temporary buildings and works; and

removal of fallen timber

28 Before the use 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 and will then form part of the permit. The plan must be drawn to scale and three copies provided. The plan must be generally in accordance with the landscape concept plan submitted with the plans substituted by VCAT and must show;

(a) the use of indigenous/local native species in landscaping except for areas of lawn

(b) a permanent plantation of trees and shrubs with a minimum of three rows and ten metres wide using a mixture of indigenous (local native) trees and understorey species to be planted adjacent to the east and south east of the development area to form an effective screen between activities on the site and agricultural activities on adjoining land

(c) a schedule of all proposed trees, shrubs and ground cover, which will include number and botanical names of such plants and the location of all areas to be covered by grass or other surface materials as specified,

(d) the method of preparing, draining, irrigating and maintaining the plantings and landscaped areas,

(e) a weed management program.

29 Within twelve (12) months of the commencement of the use or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the application plans must be carried out and completed to the satisfaction of the Responsible Authority.


30 The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.

31 Except with the prior written consent of the Responsible Authority, all services (including water, electricity, gas and telephone) must be installed underground, and located outside the Tree Protection Zone of any indigenous native tree, to the satisfaction of the Responsible Authority.

32 Before works and development start, the permit holder must advise all persons undertaking works and development on the subject land of all relevant permit conditions and associated statutory requirements or approvals.

33 This permit as it relates to development (buildings and works) 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.

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

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.

34 This permit as it relates to use will expire if the use does not commence within two (2) years after the 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 period referred to in this condition.

Goulburn Broken Catchment Management Authority conditions

35 The finished floor levels of all proposed new buildings must be constructed at least 300 millimetres above the 100-year ARI flood level of 108.0 metres AHD, i.e. 108.3 metres AHD, or higher level deemed necessary by the responsible authority.

Country Fire Authority Conditions

36 Access to the site and within the property must be designed to allow emergency vehicle access. The minimum design requirements (including gates, bridges and culverts) are as follows:

(a) Curves in the driveway must have a minimum radius of 10 metres.


(b) The average grade must be no more than 1 in 7 (14.4%), however an absolute maximum of 1 in 5 (20%) is allowed for a maximum of 50 metres.

(c) Dips must have no more than a 1 in 8 (12.5%, 7.1 degree) entry and exit angle.

(d) Must provide a minimum trafficable width of 3.5 metres and be clear of encroachments for 4 metres vertically and 0.5 metres each side of the driveway.

(e) Must be designed, constructed and maintained for a load limit of at least 15 tonnes and be of all weather construction.

(f) Must provide for the turning of fire fighting vehicles close to the building/s by either:

A turning circle with a minimum radius of 8 metres; or

By the driveway encircling the building/s; or.

The provision of a T or Y head with a minimum formed surface of each leg being 8 metres in length measured from the centre point of the head, and 4 metres trafficable width.

37 The new buildings area of the development must be provided with a static water supply source for fire fighting purposes which meets the following requirements:

(a) Is stored in an above ground water tank constructed of concrete or metal.

(b) All fixed above-ground water pipes and fittings required for fire fighting purposes must be made of non corrosive resistant metal.

(c) Have a minimum effective capacity of 45,000 litres.

The water supply must also –

Incorporate a ball or gate valve (British Standard Pipe (BSP) 65mm) and coupling (64 mm CFA 3 thread per inch male fitting).

Incorporate the outlet/s of the water tank within 4m of the accessway and must be unobstructed.

Be readily identifiable from the building or appropriate identification signage to the satisfaction of CFA must be provided.

Any pipework and fittings must be a minimum of 65 mm (excluding the CFA coupling).

38 Grassland areas in and around the buildings / accommodation areas must be managed / maintained to a height no greater than 10 centimetres for a distance of 30 metres for the declared Fire Danger Period.


39 An Emergency Management Plan must be developed that addresses the identified risks for the site and documents emergency management procedures to be undertaken in the event of an incident to the satisfaction of the Responsible Authority.

Goulburn Murray Water conditions

40 All construction and ongoing activities must be in accordance with sediment control principles outlined in ‘Construction Techniques for Sediment Pollution Control’ (EPA, 1991).

41 No buildings are to be constructed within 30 metres of any waterways or on any drainage lines.

Department of Environment Land Water & Planning conditions

42 No polluted and/or sediment laden run-off is to be discharged directly or indirectly into the Park. Overland flows into the Park must be maintained at the same rate post-development as at present.

43 No work and no machinery or associated equipment are permitted on the adjoining Crown land, including for truck turning areas, entry points, parking areas or temporary stack sites.

44 Prior to work commencing, the shared boundary with Crown land must be fenced to the satisfaction of the responsible authority and the Department of Environment, Land, Water & Planning in accordance with the Fences Act 1968 and at the applicant’s expense. Fencing must be:

(a) erected on the boundaries of the land;

(b) at least 1.2 metres in height;

(c) stock and domestic pet proof;

(d) without gates or openings on to adjoining Crown land.

45 The adjoining Crown land is not to be used for private purposes, including: access, parking, storage of materials or rubbish.

46 Litter and waste water are not permitted to be released directly or indirectly into adjoining Crown land.

47 Overflow parking is to be accommodated within the subject freehold land and is to be accessed from Watters Road by an approved crossover point.

48 The fence on the shared boundary with Crown land must be maintained to the satisfaction of the responsible authority and the Department of Environment, Land, Water & Planning in accordance with the Fences Act 1968 and at the applicant’s expense. Fencing must be:

(a) on the boundaries of the land;

(b) at least 1.2 metres in height;


(c) stock and domestic pet proof;

(d) without gates or openings on to adjoining Crown land.

End of Conditions


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