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D'Abate v East Gippsland SC & Ors  VCAT 1320 (6 August 2010)
Victorian Civil and Administrative Tribunal
D'Abate v East Gippsland SC & Ors  VCAT 1320 (6 August 2010)
Last Updated: 19 August 2010
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
|PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P2127/2009
PERMIT APPLICATION NO. 625/2008/P
Section 77 of the Planning & Environment Act 1987. East
Gippsland Planning Scheme; Flood Risk. Climate change and sea level rise.
Acceptability of design response.
East Gippsland Shire Council
East Gippsland Catchment Management Authority
Rick and Lilla Linklater
132 Marine Parade Lakes Entrance
DATE OF HEARING
DATE OF ORDER
to s.60 of the Victorian Civil and Administrative Tribunal Act 1998 Rick
and Lilla Linklater are joined as parties to this proceeding.
decision of the Responsible Authority is affirmed.
permit application 652/2008/ no permit is granted.
application for costs by Rick and Lilla Linklater against the Responsible
Authority is dismissed.
Ms Watson, a person appointed by Mr D’Abate to represent him.
For East Gippsland Shire Council
Mr Terry Montebello, solicitor from Maddocks Lawyers.
For East Gippsland Catchment Management Authority
Mr Adam Dunn, an engineer from the West Gippsland Catchment Management
For Rick and Lilla Linklater
Ms Lilla Linklater and Mr Rick Linklater in person.
The development entails subdivision of the land to create a new lot and
construction of a new dwelling on that lot.
The new dwelling would be located on a new lot of 193sqm. It would be a
double storey dwelling, with 1.8m high front fence to a formal
At ground floor would be three bedrooms, laundry and a two car garage. At
first floor would be a study, living and kitchen areas
and a front deck.
The finished floor level of the ground floor would be raised to 300mm above
the declared 1% AEP flood level of 1.8m AHD.
Nature of Proceeding
Zone and Overlays applying under the East Gippsland Planning Scheme
Residential 1 Zone (Clause 32.01)
Land Subject to Inundation Overlay (Clause 44.04)
Adjacent to a Road Zones – Category 1 (Clause 36.04).
Permit requirements applying under the East Gippsland Planning Scheme
Clause 32.01-2 – Subdivision of the land.
Clause 32.01-3 Construction of a dwelling on a lot less than 300sqm.
Clause 44.04-1 – Buildings and works.
Clause 44.04-2 – Subdivision.
Clause 52.29 - Subdivide land adjacent to a road in a Road Zone, Category
Relevant Scheme policies and provisions.
Clauses 11, 15.02, 15.08, 16, 21, 22.09, 22.12, 52.26 and 65.
The subject land has a frontage to Marine Parade of 25.44m and a depth of
76m, yielding a total area of 1,787sqm. The land contains
motel units with a
manager’s residence at the front. The motel units and residence have
recently been the subject of subdivision
action such that each of the units and
the residence are contained within eleven separate lots with common property
accessway, car parking and a pool.
The pool area is the subject land of this application. It is located at
the north-west corner of the lot on the Marine Parade frontage.
It is bound on
the east by the central accessway and opposite, the two storey (former
manager’s) residence, to the south by
the existing car parking spaces and
to the west by a two storey residence.
The land is relatively flat and is located in a residential area.
Cases Referred To
WHAT IS THIS PROCEEDING ABOUT?
D’Abate has sought planning permission to subdivide his land and construct
a new, two storey dwelling on the newly created
lot. His application for a
planning permit for this development has been refused by the East Gippsland
Shire Council because the
East Gippsland Catchment Management Authority (the
EGCMA) objects. The EGCMA is a referral agency under section 52 of the Planning
and Environment Act 1987, and because of its objection the Council is obliged to
refuse the grant of the permit. The Council in fact holds the position that
it were not for the EGCMA’s objection it would have granted a permit for
EGCMA maintains that the proposal is unacceptable because the subdivision and
construction of the dwelling is an intensification
of residential use in a
floodway. This intensification is said to be unacceptable because the assessed
the level of hazard under
a 1 in 100 year or 1%
AEP flood event is
and Mrs Linklater are the owners of a two storey dwelling next to the proposed
development site. Their main concern is that the
proposed upper level balcony
of would intrude into the views from their dwelling. While they object to the
granting of a permit
on this basis, they have indicated that they would accept a
redesign to reduce the alleged intrusion.
I have given consideration to the submissions of Mr and Mrs Linklater, the
issues they have raised are not the determinative
to this application. Indeed,
I concur with the position of the Council that the design responds
satisfactorily to those matters
relevant under Clause 54 of the Planning Scheme.
Further, there is no particular policy reference or other planning requirement
the East Gippsland planning scheme that I was taken to that seeks to
protect the private views of other residents. Accordingly I
have not found it
necessary, in light of the more substantive issues, to deal with this issue in
any further in these reasons.
substantive issue in this matter is about the risk of the flooding and the
associated level of hazard. However, these risks are
not confined to the
present day flood risks. State
policy directs that a
consideration of the potential impacts from sea level rise of not less than 0.8m
by 2100 and other climate change
impacts be considered for a site such as this.
It is these issues that have lead me to conclude that a permit should not be
application was heard in conjunction with another application for development in
Lakes Entrance, a multi storey, multi unit development
on the corner of Marine
Parade and Laura Street (the Laura Street site). While heard
concurrently, the decision for the Laura Street site has been determined
reason for hearing the two applications together was because of the common
issues not only about current flooding risks but
also about the risks from sea
level rise and climate change impacts.
reasons given in the Laura Street site set out the nature of the flood and
climate change risks for Lakes Entrance. All that
which has been said in those
reasons about the physical exposure to flood risks, climate change impacts and
policy context applies
to this site and this application because of the similar
low lying condition of the land and the exposure to these risks. It is
intended in these reasons to repeat those matters again in detail. Instead,
reference will be made to the Laura Street decision
and where necessary
elaboration made to give context to this decision.
THE FLOOD RISK ISSUES
Marine Parade site is subject to a 1 in 100 year or 1%
AEP peak flood level
of 1.8m AHD. This
estimated peak flood level includes the combined effects of tide, storm surge
and wind effects.
Because of the influence of these factors, the actual flood level the subject
land would experience will cycle between peak and
lower levels. The material
tabled by the EGCMA indicated that the difference in flood level could be as
much as 0.5m or more.
events that can generate severe impacts, such as flooding of roads and other
support infrastructure can occur also without high
river flows. These occur
because of coastal storm surge or strong winds, typically from the south-west,
over the long fetch of the
EGCMA argues that under the 1% flood event peak level, the depth of flood water
will be in excess of 0.7m around the site. It
is submitted that this depth will
make access unacceptably hazardous and be a danger to residents and emergency
degree of hazard was determined in accordance with the Floodplain Management
in Australia – Best Practice Principles and Guidelines SCARM Report
73 (the SCARM
central issue for the EGCMA is the intensification of the land use that the
subdivision and construction of an additional dwelling
poses in an area said to
be subject to hazardous flood conditions. Having regard to state planning
policy under Clause 15.02 of
the East Gippsland Planning Scheme and the purposes
of the Land Subject to Inundation Overlay, the EGCMA considers that approval
the proposed intensification of land use is unacceptable.
find that there are flaws in the EGCMA’s position that lead me to conclude
that the flood hazard level is not so serious as
to warrant refusal of the
development on this basis.
purposes of the LSIO seek amongst other outcomes:
To ensure that
development maintains the free passage and temporary storage of floodwaters,
minimises flood damage, is compatible with the flood hazard and local
drainage conditions and will not cause any significant rise in flood level or
[Tribunal’s emphasis added]
EGCMA does not take issue with impacts to the passage, storage of velocity of
floodwaters. It is the compatibility of the development
with the flood hazard
that is at issue. In this respect I have had regard to the decision guidelines,
specifically those that call
for consideration of:
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.
considering these factors it is relevant that the actual peak flood levels are
not persistent, but cycle with the tide, as set
out earlier. The more
persistent and lower levels are not so deep as to present a high hazard for
access to or from the site or
to emergency personnel. Sufficient material was
submitted to satisfy me that established flood warning and response programs for
Lakes Entrance are in place to facilitate early responses or evacuation during
the lower flood levels. I find that the level of
hazard to residents and
emergency personnel is moderated by these factors.
while the high hazard conditions suggested by the EGCMA may occur for short
periods, they are not sufficiently persistent as
to present an unacceptable
have also considered the wider purpose of the LSIO, which is to constrain
development and hence, ultimately the intensity of land
use to fit within the
level of flood risk and hazard. This I dealt with in more detail in the reasons
for the Laura Street
proposal is for subdivision of an existing land in common property to eleven
other dwellings to provide for one new lot and one
new dwelling. Such a
development is at the lower end of intensity. In real terms, the incremental
increase of one new dwelling
is not so significant as to raise real concerns of
increased risk of harm or hazard from flooding.
these reasons, I conclude that in principle the subdivision of this land and the
construction of one additional dwelling would
be an acceptable outcome when
having regard to the purposes of the LSIO and the issues of present day flood
risk and hazard.
CLIMATE CHANGE IMPACTS
15.08-2 requires responsible authorities to take account of a minimum sea level
rise of 0.8m by the year 2100. The combined
effects of ‘tides, storm
surges, coastal processes and local conditions’ are also to be taken into
account when ‘assessing
risks and coastal impacts associated with climate
change’. There is clear policy direction that:
development is located and designed to take account of the impacts of climate
Ensure that land subject to coastal hazards [is] ... appropriately managed to
ensure that future development is not at risk.
the reasons for the Laura Street site I set out the relevant considerations of
sea level rise and climate change
impacts. All that
was said in those reasons about this context is applicable here, with the
subject site similarly being within 1m of current
mean sea level and proximate
to the northern arm of the lake system. In short, the site is vulnerable to the
impacts of sea level
rise of at least a rise of 0.8m by 2100 that is required by
state policy to be applied as well as the other potential impacts from
change. The work of the Gippsland Coastal
these climate change impacts to include increases in the strength and occurrence
of south-westerly winds, storms and storm
is no argument from the Council or EGCMA that the impacts of sea level rise and
climate change would affect this site. And
so give rise to more frequent and
greater depths of flooding than those historically experienced by Lakes
these conditions and the guidance of State policy I have set out earlier, it
falls on the Tribunal to decide whether or not
this development should be
guidance raises two questions in relation to this proceeding. One is whether or
not the location is acceptable given the level
of risk to climate change
this is a location with a very high level of risk to climate change impacts. It
is a level of risk which the Council and
the EGCMA have yet to address and
respond to through planning and other mechanisms. Indeed, as has been set out
in the Laura Street
decision, the Council has deferred the development of any
such responses to a State lead processes, stating that it cannot ‘go
alone’. Until such responses are developed, it is the Council’s
view that development should continue in accord with
the recent Planning Scheme
Amendment C68, which seek to implement amongst other strategies, the Lakes
Entrance Urban Design
addressed this response from the Council in the Laura Street
matter. I adopt
those same reasons here and form the same conclusion that little weight can be
given to the urban design outcomes under
Amendment C68 in respect to climate
change impacts. In my view this planning scheme amendment did not address in
any serious manner
the issues and impacts of climate change that are required to
be considered under current state planning policy.
in line with the reasons given in the Laura Street decision, not only is this
dwelling site vulnerable to flooding from climate
change impacts, the supporting
infrastructure, such as roads, water and power, are also vulnerable. Without
and strategies being implemented to protect these
supporting infrastructures, the site remains vulnerable to more than just mere
other question raised in policy that is to be addressed is whether or not the
design response is appropriate for the climate change
impacts. In this respect,
the EGCMA recommends that the floor levels of the development be raised a
further 0.8m above the current
peak flood level to address the 2100 projections.
the Council, I find this to be unacceptable. As a basic design response raising
the floor levels would consequentially raise
wall levels along the boundary of
the Linklater’s property to 4.3m above ground level. While this interface
is to the Linklater’s
driveway, it is also would face toward ground floor
windows and an upper level balcony. Such a proposed wall height would in my
view, have a poor amenity outcome.
to that, raising the dwelling leads to potential neighbourhood character
conflicts due to the increased height and consequential
change in the rhythm of
is warranted is not a mere lifting of floor levels. What is warranted is an
overall strategy for this site and surrounding area
for protection from the
impacts of climate change. Any new dwelling proposed for this site can then
respond within that context
with an appropriate level of built form.
CONCLUSIONS AND DETERMINATION
set out in the reasons for the Laura Street site that after having regard to the
matters set out about policy and planning context
While it is
recognised that the Council has gone to considerable lengths to develop a
planning framework for the future urban development
of Lakes Entrance (and other
settlements in the shire) it has done so in the face of shifting policy
imperatives driven by an increasing
understanding of the vulnerability of Lakes
Entrance to climate change impacts. It has failed to take account of these
The development of this urban design framework has been overtaken by
events that will have major influences on future development
of Lakes Entrance
and more widely the current and future community. The Council has chosen to
ignore these events and defer decision
making that it is charged by the State to
Such decision making is difficult. Being difficult is not a sufficient
reason to defer it. There are severe and long term consequences
impacts of climate changes that are required to be addressed now. State
planning policy directs planning and responsible
authorities to do so. The
Council however is not required to ‘go it alone’. The Water
Minister’s direction to
the CMA similarly directs it to assess and respond
to planning decisions now. The Council and the CMA are to work together to
these issues now and eventually no doubt integrate with whatever
statewide responses develop in the not too distant future.
The decision to grant a permit for this proposal would be to ignore these
imperatives and fail to address the level of long term impact
and poor planning
outcomes that will arise from its vulnerability to the sea level rise and
climate change impacts.
summary of the planning context applies equally here. It leads to the
conclusion that approval of this development in this location
is one that is
pre-emptive of a proper consideration of how climate change impacts are to be
addressed in the low lying areas of
Lakes Entrance. Until such time as this is
completed and a framework prepared, it would be inappropriate and a disorderly
outcome to grant this application a permit.
I will affirm the decision of the Responsible Authority, albeit for different
reasons, and direct that no permit issue.
THE COSTS ISSUE
and Mrs Linklater submit that they have incurred legal and other professional
costs in reviewing the development plans submitted
by Mr D’Abate and in
seeking to achieve mediated redesign with Mr D’Abate. They seek relief
from these costs through
the Council because they contend that they felt obliged
to undertake these steps because it they believed that the Council did not
perform as they expected it to.
power to award costs falls within the ambit of Division 8 of the Victorian
Civil and Administrative Tribunal Act 1989 (the VCAT Act). Section 109
under that subject to Division 8, parties are to bear their own costs in a
proceeding. The power
to award costs incurred during the conduct of a
proceeding can nevertheless be made by the Tribunal. The power to do so however
is limited by those matters set out under section 109(3). These matters relate
to the conduct of a party during the proceeding and
consideration as to whether
the award of costs is fair.
costs incurred Mr and Mrs Linklater arise from their feelings of being
frustrated by and dissatisfied with the advice from a Council
officer and from
protracted communications with the permit applicant about amending the plans. I
find there is nothing in their
claims that indicates that the Council had taken
any purposeful approach to unfairly disadvantaging Mr and Mrs Linklater in this
proceeding or for the proceeding to take any thing other than the normal course.
They were able to freely seek and engage in the
review process and had an
opportunity to have their grievances heard in the normal course of this review
is not unusual for a party in a review application to take a different view to
that of a council officer or a Council. Seeking
professional advice at their
own cost may also be a step a party may take when they have such a disagreement.
All of these things
are part of the normal process.
I find that the claims made by Mr and Mrs Linklater do not give rise to reasons
why costs should be awarded against the Council
when compared against those
matters set out under section 109(3) of the VCAT Act. I therefore will make no
order for costs against
I have considered all submissions presented by the parties although I do not
recite all of the contents in these reasons.
 Taip v East
Gippsland SC (includes Summary) (Red Dot)  VCAT 1222.
Exceedence Probability. A 1% Annual Exceedence Probability for this flood level
means that there is a 1% probability of
this event/level being exceeded in any
one year period.
AHD = Australian Height
Gippsland Lake Flood Modelling Project Final Report. Centre for
Environmental Applied Hydrology (CEAH) Report 01/04 June 2004 by Rodger Grayson
The authority is also concerned about the high front fence blocking flood flow,
although it is acknowledged that this can be overcome
with a modified design.
and Resource Management Council of Australia and New Zealand, Standing Committee
on Agriculture and Resource Management,
CSIRO Publishing, 2000.
  VCAT
1222 at  to .
  VCAT
1222 at  to
Climate Change, Sea Level Rise and Coastal Subsidence along the Gippsland
Coast. Gippsland Coastal Board, Final Report, Phase 2 of the Gippsland
Climate Change Study July 2008.
 Since the
hearing of this matter and the determination of the Laura Street matter,
Amendment C68 has been incorporated into the
East Gippsland Planning Scheme.
  VCAT
1222 at  to
VCAT 1222 at  to .