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W & B Cabinets v Casey CC [2009] VCAT 2072 (7 October 2009)

Last Updated: 14 October 2009

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P717/2009
PERMIT APPLICATION NO. P665/07
CATCHWORDS
Casey Planning Scheme; Residential 1 zone; Land Subject to Inundation Overlay; failure to make decision; climate change; coastal hazard vulnerability assessment; village character.

APPLICANT
W & B Cabinets
RESPONSIBLE AUTHORITY
Casey City Council
RESPONDENT
Tooradin Primary School & Others
SUBJECT LAND
49 South Gippsland Highway, Tooradin
WHERE HELD
Melbourne
BEFORE
John Keaney, Member
HEARING TYPE
Hearing
DATE OF HEARING
26 August 2009
DATE OF ORDER
7 October 2009
CITATION
W & B Cabinets v Casey CC [2009] VCAT 2072

ORDER

The order of the Tribunal is that no planning permit is issued.


John Keaney
Member



APPEARANCES:


For Applicant
Mr N Hooper, Town Planner who called expert evidence from Mr R Jarvis, Engineer
For Responsible Authority
Mr D Iles, Town Planner
For Respondents
Ms M Scarce, Principal, Tooradin Primary School

REASONS

Proposal

  1. Application No. P665/07 was lodged with Casey City Council on 11 October 2007 for the purpose of developing No. 49 South Gippsland Highway, Tooradin for 22 dwellings.
  2. All of the proposed dwellings are to be of single storey and there are six different dwelling layouts and designs proposed around the site. All of the dwellings will have two bedrooms plus a study, and all dwellings will be detached from one another by at least 1.2m.
  3. The dwellings will each have a two car garage with all but four of the dwellings gaining access from a new internal driveway leading off Bayview Road. Five visitor car spaces are also proposed. The applicant advised that each of the dwellings will have private open space areas which vary between 50m² and about 170m².
  4. The development is to be setback from all boundaries and includes:
  5. The proposal has a site coverage of about 35% and a permeable site coverage of 38%. Notably, once the hard standing areas such as driveways are included, the site coverage was estimated by Council to about 61%.
  6. The 22 dwellings on the site represent a site density of about one unit per 560m2 of site area.

Site and Area

  1. I have inspected the subject site and the surrounding area as the site context is critical to my assessment. As noted by Council:

The subject site is located along the northern side of South Gippsland Highway, between Bayview Road and Evans Street in Tooradin. The property is a large allotment of some 1.2ha (12,363m²), having frontages to both a service road to the south and Bayview Road to the north. Both roads are unmade.

The land is vacant and the property is contained by a mixture of timber paling fences to neighbouring properties and an open post and wire treatment at both the road frontages. The site features some grassland with little significant vegetation, aside from two trees located in the southwest corner and central area of the southern property boundary. The land falls about 2.3m from the Highway to Bayview Road.

  1. In terms of the immediate surrounding land uses, I also adopt Council’s uncontested description:

The Tooradin Primary School abuts the east boundary of the site. This property maintains a car park within the property frontage. A row of existing trees extend along the common boundary shared with the review site.

Single dwellings are located at 47 and 51 South Gippsland Highway. These properties abut the southern and south-western boundaries of the review site. No. 51 South Gippsland Highway is over 2,500m² in area compared with No. 47 which is approximately 1,000m².

To the west of the site is No.’s 50 and 52 Bayview Road. Both are developed by single dwellings. No.50 is in the order of 1,200m². No. 52 is approximately 1,000m² in area and appears to be an excision of the review site. A double storey brick dwelling has been constructed on the site. Across from the review site are more 1,000m² residential lots. A larger parcel at No. 65 Bayview Road (approximately 5.0ha) appears as a remnant farm lot.

Planning Controls

  1. The subject site and neighbouring land is within the Residential 1 zone under the Casey Planning Scheme. Under Clause 32.01-4, a planning permit is required for more than one dwelling on the land and it was common ground that Clause 55 (ResCode) was the operative assessment tool.
  2. The site (and all surrounding land) is within the Land Subject to Inundation Overlay and a permit is required for buildings and works under Clause 44.04-1. Relevantly, Melbourne Water and South East Water are referral authorities under this overlay which requires consideration of the susceptibility of the site to flooding.
  3. There are also relevant State and local strategic directions some of which I will discuss in detail later but the following is a list of some of the most relevant clauses:

Process

  1. As it has taken the best part of two years from application to review, I think that it is relevant to reflect on the process adopted by Council. After receipt of the application, further information was sought by Council requiring (among other things) the preparation of a Cultural Heritage Management Plan (CHMP). Evidently, it took 12 months to receive this plan.
  2. Council then referred the application (as it was required to) to both Melbourne Water and South Eastern Water.
  3. Council did not advertise the application until December 2008 after receipt of the CHMP. Five objections were received raising issues of:
  4. Council also sought the views of its internal departments. Notable among these were the views of the Strategic Development unit which commented that the development of 22 dwellings was not supported owing to concerns with:
  5. Other issues highlighted by the Strategic Development unit included that the subdivision into 22 lots will cause a precedent for the subdivision of other allotments in the area; and the need to construct part of Bayview Road as intense development will exacerbate dust etc. created by use of the unmade section of Bayview Road.
  6. Council’s Engineering Department advised that any buildings should be spaced about 2.5m apart so that they do not impede the flood flow path through the site in the event of a storm. The engineers also noted that a recent report by the CSIRO had specified that the flood level for all coastal areas may rise by up to 800mm within the next hundred years. Based on this information, and in the absence of other advice on this issue, the previous flood levels will have to be raised by this amount. The applicable flood levels for this property were estimated to be between 6.10 and 3.6m AHD whereas the original estimate had been between 5.3 and 2.8 metres AHD.
  7. Prior to making its decision on the application, the applicant lodged a review with the Tribunal for ‘failure’ to make a decision. Soon after, Council did consider the proposal and indicated its opposition to the proposal on four grounds being:
    1. The proposed development is contrary to objectives of Clause 15.08 - Coastal Areas of the Casey Planning Scheme by proposing an intensive development within an area susceptible to flooding and in the absence of Coastal Vulnerability Assessment.
    2. The proposed development is contrary to objectives of Clause 22.02 - Township Policy of the Casey Planning Scheme as the proposed development intensifies the growth and is not compatible with the character of the township area.
    3. The application fails to meet the following Standards of Clause 55 of the Casey Planning Scheme:
      • Standard B1 Neighbourhood Character
      • Standard B3 Dwelling Diversity
      • Standard B4 Infrastructure
    4. The proposed development of twenty-two (22) dwellings on the subject land will unreasonably load the limited capacity of utility services and infrastructure; and fails to propose upgrading or mitigation strategies in response.

Issues

  1. Having inspected the site and the area, and having considered all of the submissions made, I feel that the issues that need to be addressed more or less correspond with the grounds of refusal as follows:

Coastal Vulnerability

  1. As foreshadowed in its advice on what decision it would have reached, Council wrote to the Tribunal on 3 August 2009 in relation to the issue of coastal hazard vulnerability.
  2. Council advised the Tribunal that it sought preliminary advice on this issue bearing in mind that the subject site is on fairly flat land 385m from Western Port Bay, and 240m from Sawtells Inlet which traverses the coastal village of Tooradin. The context for Council’s concern related to some recent decisions on this issue by the Tribunal. Council noted in its letter:

Council Officer’s are aware of recent decisions of the Victorian Civil and Administrative Tribunal in Myers v South Gippsland Shire Council VCAT 1022 (22 June 2009) and Ronchi & Campbell v Wellington SC (VCAT Ref No. P3832/2008). In these instances, the Tribunal examined whether a Coastal hazard vulnerability assessment was required prior to a decision being made on a subdivision and development applications. This decision bears some relevance to the subject land, given the site is located within the Kooweerup Flood Protection District, its proximity to Western Port Bay and is also subject to Inundation.

Council Officer’s seek the Victorian Civil and Administrative Tribunal direction as to whether a Coastal Hazard Vulnerability Assessment is required prior to the application for review proceeding. The relevance of climate change in the planning process is still in an evolutionary stage, therefore if the Tribunal considers that it is warranted in this particular instance, a preliminary hearing or direction from the Tribunal may be appropriate.

  1. At the hearing, Council acknowledged that this was more of a “merits” issue than a preliminary issue, but maintained that it was premature to grant a permit until such time as a coastal hazard vulnerability assessment had been conducted.
  2. As I understand it, the process adopted by Council to inform itself on this issue was as follows:

Melbourne Water, as requested has undertaken an analysis of the subject property, with consideration given to the vulnerability of this property based on the projected effects of future sea level rise of 0.8 metres by 2100. Melbourne Water is satisfied that South Gippsland Highway provides a sufficient degree of protection from the effects of future sea level rise within the area, provided floor level requirements are met.

  1. Ultimately, the application was assessed and (but for the application for failure) Council was about to refuse the proposal on grounds which included it being within an area susceptible to the impacts of flooding (presumably from coastal inundation).
  2. In response to Council’s letter of 3 August 2009, the permit applicant relied on the advice of Melbourne Water which it found to be “clear and unequivocal” in relation to flooding especially in the context of the substantial distance from the coastline and the significant physical barrier of the highway. The permit applicant also distinguished between the specific aspects of this proposal compared with the two Tribunal cases relied upon by Council.
  3. Coastal hazard management is a relatively new consideration in planning schemes and so I think it is helpful if I provide a context for my discussion of this issue.
  4. Amendment C52 introduced a significant change into the State Planning Policy Framework (SPPF) at Clause 15.08 in December 2008 which, among other things, sought to “...plan for and manage the potential coastal impacts of climate change”.
  5. Amendment C52 required decisions to be consistent with the Victorian Coastal Strategy 2008 and in particular sought to ensure that planning for the management of coastal hazards and the coastal impacts of climate change should:

Plan for sea level rise of not less than 0.8 metres by 2100, and allow for the combined effects of tides, storm surges, coastal processes and local conditions such as topography and geology when assessing risks and coastal impacts associated with climate change.

Apply the precautionary principle to planning and management decision-making when considering the risks associated with climate change.

Ensure that new development is located and designed to take account of the impacts of climate change on coastal hazards such as the combined effects of storm tides, river flooding, coastal erosion and sand drift.

Ensure that land subject to coastal hazards are identified and appropriately managed to ensure that future development is not at risk.

Avoid development in identified coastal hazard areas susceptible to inundation (both river and coastal), erosion, landslip/landslide, acid sulfate soils, wildfire and geotechnical risk.

  1. Accompanying Amendment C52 were two relevant companion documents being:
  2. The Practice Note provides guidance on both permit application and rezoning requests in relation to:
  3. Notably, the Practice Note defines coastal hazards; explains coastal hazard vulnerability assessments; details the process for assessing coastal hazard risks; and explains the step by step processes for assessing a rezoning or a permit application.
  4. The Ministerial Direction is more aimed at the rezoning of land and its expressed purpose is to set out general requirements for consideration of the impacts of climate change within coastal Victoria in the event of a planning scheme amendment which would allow non urban land to be used for an urban use or development.
  5. The current proposal would be best described (in terms of the Practice Note) as a “large scale development/subdivision proposal” which seeks to introduce significant change to built form and intensity within a coastal area. According to the Practice Note, such a development scenario might be addressed as follows:

A coastal hazard vulnerability assessment may be required to determine potential exposure and development suitability of the land to evaluate risks. This may include coastal engineering, design or setback responses necessary to demonstrate assessed risk can be effectively and sustainably managed.

The relevant flood plain manager or a suitably qualified coastal engineer or hydrology expert can provide relevant advice as required. (Tribunal emphasis).

  1. Council submitted that on this basis it was entitled to the benefit of such an assessment prior to making a decision.
  2. I note that Council’s local planning policy framework (LPPF) is yet to catch up with the changes introduced by Amendment C52 although it does contain some fairly generalised ambitions including:
  3. I am also mindful of the recent Tribunal decisions where this issue was raised although I agree with the proponent that there are a number of distinguishing features of those cases which are relevant. In particular, the Myers site was directly opposite the beach and the submission from the West Gippsland Catchment Management Authority was evidently not helpful in resolving the need for a further hazard assessment.
  4. In the current case, the question of coastal vulnerability was only apparent after the introduction of Amendment C52, which is what prompted the request for information in February 2009.
  5. From my point of view, the relevant consideration in this issue, and what sets it apart from both Ronchi and Myers, is the advice of the “relevant floodplain manager” being Melbourne Water. As far back as December 2007, Melbourne Water advised that it did not object to the development subject to the unusually onerous consideration that the finished floor levels be a minimum of 600mm above the flood level. The LSIO typically requires that the finished floor level be only 300mm above the flood level.
  6. Then, after the introduction of Amendment C52 inclusive of its raft of considerations, Melbourne Water, as the relevant flood plain manager, maintained that it did not object subject to its original conditions. By letter of 16 March 2009, Melbourne Water advised that it:

.... is satisfied that South Gippsland Highway provides a sufficient degree of protection from the effects of future sea level rises within this area, provided floor level requirements can be met. Therefore, Melbourne Water does not object.

  1. In my view, Council was entirely correct and responsible in raising this as an issue. However, I am satisfied on the basis of the intervention and advice of Melbourne Water that the relevant assessment as required by the General Practice Note has been carried out and that appropriate limitations on development have been suggested.

Housing Policy

  1. In terms of the merits of the application, I acknowledge Council’s submission that it does not, in principle, oppose the redevelopment of this site given its zoning, its size and its availability to services. That said, Council noted that:

The Casey Planning Scheme does not encourage an intensive medium density housing development on the review site. The land is not close to public transport, nor is it proximate to an activity centre as outlined in the SPPF. A number of constraints need to be resolved by any infill housing proposal. These include the vulnerability potential of coastal hazards, risks of inundation, integration into an established residential character and the equitable allocation of local infrastructure and services which are nearing capacity.

  1. The policy settings in the LPPF for the town are contained at Clause 22.02 (Township Policy) which seeks (with Tribunal emphasis added):
  2. Elsewhere, the policy seeks to confine residential expansion within the boundaries of the town.
  3. I also note that Clause 22.04 (Western Port Coastal Policy) is also relevant with the following policy directions:
  4. I interpret this policy framework to be promoting very modest growth that is “in character” with what is there now. I will address ‘character’ below but my inspection suggested that this is a fairly remote part of Tooradin which, apart from its abuttal to the primary school, is well removed from the ‘focal point’ of Tooradin which is east of the inlet. On my reckoning, almost every trip from this site would be by motor car, even though the design admirably makes provision for one pedestrian access to the highway.
  5. In that context, I think that Council’s summary is about right. While the planning scheme clearly anticipates residential development on this site, it does not suggest that it is of an intensity that might better be delivered on a site that was within an easy walking distance of the commercial activities on the east side of the inlet.

Village Character

  1. I agree with Council that there are a number of relevant ingredients in determining the ‘character’ of this area including:
  2. My context for character assessment is two fold. Firstly, I must have regard to the planning scheme; and secondly I must determine the characteristics of this town, this area and this site based on my inspection.
  3. As for the planning scheme, Clause 55.0-2-1 encourages new development to be ‘respectful’ of the existing character or to contribute to a preferred character. Council advised me that there are no preferred character statements at the moment in its planning scheme despite the fact that it prepared a Neighbourhood Character Study in 2007. If Council want to use this study in any meaningful way, I would urge it to absorb the study into the scheme as soon as possible.
  4. Council advised me that the Character Study identifies the review site as being:
  5. Elsewhere in the Casey Planning Scheme there is repeated reference to ‘character’ in relation to the Township Policy at Clause 22.02 and the Western Port Coastal Policy at Clause 22.04. Taken as a whole, the message I get from the planning scheme is that Tooradin is one of the coastal villages of Casey that has a village and rural atmosphere that distinguishes it (and them) from other more suburban parts of Casey.
  6. That ‘village’ characteristic was evident on inspection and it stems from a fairly low density; built form that sits within (and is subservient to) coastal vegetation; some unmade roads; and an overall feeling of spaciousness.
  7. It was apparent to me, based on inspection, that there are really two Tooradins with Bayview Road being the dividing line. The ‘old Tooradin’ lies south of Bayview Road and has a rambling, village, coastal, country town feel to it. The new Tooradin is clearly more suburban and this is typically north of Bayview Road. The road itself is important as its unmade gravel nature at the east end, and its constructed nature at the west end is something of a metaphor for the divide.
  8. Interestingly, my inspection also confirmed the policy settings which are adjusted in the planning scheme at the northern boundary of the site, being Bayview Road. Clause 22.04 (Western Port Coastal Policy) divides the township of Tooradin along this road with the area to the south (the subject area) characterised by modest, low scale and unobtrusive development on lots typically of about 1000m² with generous setbacks and well spaced buildings facilitating coastal vegetation retention.
  9. By contrast, the northern side of the road, especially to the north-west is characterised by newer conventional housing estates that exhibit more prominent built form, more dominant car parking, less spacing and less vegetation. The contrast is a stark one.
  10. In my view, the policy framework of the Council is quite clear. It seeks to hold the line in old Tooradin and maintain the village and coastal feel that is emblematic of all of its coastal towns. I can understand that and I support it. On the other hand, the policy is flexible enough to acknowledge that ‘new’ Tooradin is being developed in a different era and is beholdent to different demands. That too is understandable. But to ‘jump the fence’ as this application does, by inserting the new into the old, means that the policy settings are blurred and the outcome for the town is a confused one.
  11. I am also conscious of another recent Tribunal decision where this issue arose. In Owen v Casey CC (VCAT Ref: P3189/2004), the Tribunal found (at paras 8-10) that:

[8] ..... medium density housing development must also respect the character of the area. The policies within the Scheme and specifically the map attached to Clause 22.04 distinguish the review sites from part of Tooradin that is more recently and intensively developed. In reading the policies at Clause 21, 22.02, 22.04 and 22.05, there is an emphasis on the special character and environmental values of places such as Tooradin. Even though the draft policies carry no weight, the seaside feel to which they refer is a characteristic that is evident.

[9] With sewage now connected, townships like Tooradin will experience development pressures particularly as there is also a strategic imperative to contain township boundaries. In the absence of an adopted preferred character statement that can be given influential weight, the existing character forms the basis of assessment. As I have alluded to, the character found on the north side of Bayview Avenue is not particularly relevant as it is outside the area affected by Clause 22.04, and the existing character of other streets some distance to the south east is not the most influential consideration.

[10] The immediate context of the review site is the most important. That context is low key influenced by a sense of spacing and landscaping .....

  1. In my view, and based on the scheme and my inspection, if character is going to count for anything in a planning assessment, then this proposal has some fundamental difficulties. It is nothing like anything around it in the old part of Tooradin, and it even seems at odds (in a density sense) with some of the newer parts of the town. It strikes me that it is a design of an intensity not seen nor contemplated for the town. It develops twenty-two very similar ‘off the shelf’ dwellings with minimal setbacks between one another. The overwhelming feeling would be one of built form, accessways, car spaces, sealed areas and a ‘sameness’ which stands in stark contrast to the rest of the town. In that sense, I do not find that this is a particularly site responsive design.
  2. If the Casey policy settings were encouraging of a totally new and redeveloped Tooradin, then my view would be different. However, my reading of the scheme and my inspection of the site points to a different ambition than the one reflected in this design.

Other Issues

  1. I am mindful of the fact that the site will be redeveloped at some stage regardless of my decision to reject this application. In this context, I will list a number of matters that I think the design needs to have regard to:
  2. I am not in a position to identify a lot yield for redevelopment, as essentially this will be an outcome of the process rather than any input into the process.

Conclusion

  1. Almost every permit application needs to balance competing policy objectives. It is not in dispute that this site could, and should, be redeveloped for residential purposes.
  2. However, at two different levels the planning scheme settings temper the development prospects of this site. In a housing policy sense, this site is near the edge of the coastal village and is removed, in a relative sense, from the heart of Tooradin. This inevitably diminishes its prospects for very intense development.
  3. More damaging though is the character settings which, justifiably, aim to hold the line in old Tooradin so as to maintain that lovely coastal village feel that it currently displays. Placing twenty-two dwellings close to one another on this site would be a ‘jarring’ intrusion into that setting and it is clearly at odds with the policy framework for Council.
  4. While residential development is appropriate on this site, it must show greater respect for the policy, character and locational settings within which it finds itself.
  5. It is directed that no planning permit be issued.
John Keaney
Member




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