VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P711/2023
permit application no. PL22/149
	
CATCHWORDS	
Proposed five lot residential subdivision – sufficiency of approved Cultural Heritage Management Plan – extent of substantial ground disturbance – third party exemptions in Floodway Overlay and Land Subject to Inundation Overlay – opportunity to raise flooding and drainage issues in respect of variation of registered restriction.       	

Applicant	Golf Links Estate Pty Ltd	

Responsible Authority	Horsham Rural City Council	
Respondents	Bernard Michael Dwyer	
	Jennifer Carson	
	Rodney John Henwood	
	Suewellen Harradine	
Subject Land	6 Perry Close
PORT FAIRY  VIC  3284	
hearing type	Practice Day Hearing	
date of hearing	18 August 2023	
DATE OF ORDER	25 August 2023	
citation	Golf Links Estate Pty Ltd v Horsham RCC [2023] VCAT 984	

Order
1	The details set out in the Tribunal’s initiating order are changed.
The proceeding is listed for hearing on the date and for the time as detailed below.
The hearing will be at 55 King Street, Melbourne.
If there is any change to these details, the Tribunal will notify you.
Hearing:	
Date and time	24 & 25 January 2024
10.00am – 4.30pm	

Conduct	Online platform	
The details of the online platform will be provided to the parties before the hearing.
Providing submissions and associated material before the hearing
2	No later than 5 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documentation, case law and photographs) to the Tribunal and all parties.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au
3	All expert evidence must be provided in accordance with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.
Hearing fees
4	If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees
Adequacy of CHMP
5	I find that Cultural Heritage Management Plan No. 12917 approved in respect of the subject land on 15 May 2014 is sufficient for the proposed subdivision.  
6	No further investigation of Aboriginal cultural heritage is required under the Aboriginal Heritage Act 2006 (Vic) or Aboriginal Heritage Regulations 2018 (Vic) before a planning permit could be granted as a potential outcome of this proceeding. 
Flooding and drainage issues
7	The respondents must not make submissions, call evidence or cross examine witnesses in respect of permission sought for the proposed subdivision under Clause 44.03-3 (Floodway Overlay) or Clause 44.04-3 (Land Subject to Inundation Overlay) of the Horsham Planning Scheme. 
8	Notwithstanding order 7, the respondents may make submissions, call evidence or cross examine witnesses in respect of flooding and drainage issues, limited to the extent this may be relevant in respect of a claim of alleged loss of amenity, financial loss or other material detriment in section 60(2) of the Planning and Environment Act 1987 if the covenant is varied as proposed pursuant to Clause 52.02 of the Horsham Planning Scheme. 
9	The respondents must file an amended statement of grounds in a form that will satisfy orders 7 and 8 of the Tribunal by 8 September 2023. 

Dalia Cook
Member

Appearances
For Golf Links Estate Pty Ltd	Neil Haydon, town planner, Neil Haydon & Associates	
For Horsham Rural City Council	Simon D’Angelo, solicitor, Marcus Lane Group 	
For Bernard Michael Dwyer	No appearance	
For Jennifer Carson	Jennifer Carson	
For Rodney John Henwood	Rodney Henwood	
For Suewellen Harradine	Suewellen Harradine	

reasons (preliminary orders)
Introduction
1	This application seeks review of the decision of Horsham City Council (‘Council’) to refuse to grant a planning permit for further subdivision of the subject land.  Council refused to grant a permit on the basis that it was not satisfied the variation of restrictions on the relevant plan of subdivision would satisfy the requirements of section 60(2) of the Planning and Environment Act 1987 (Vic) (‘PE Act’).
2	This hearing was convened to consider the future conduct of this proceeding, with a focus on two matters in particular.  
3	The first is the adequacy of an approved Cultural Heritage Management Plan (‘CHMP’) for the proposed subdivision.  
4	The second is whether the provisions of the Horsham Planning Scheme (‘planning scheme’) provide a full exemption that would preclude respondent objectors from making submissions, calling evidence or cross examining witnesses in respect of flooding or drainage matters. 
Aboriginal cultural heritage matters
Adequacy of approved CHMP
5	Part of the subject land is included within an area of identified cultural heritage sensitivity, by virtue of its proximity to a registered waterway.
6	A CHMP was approved for the land at 98 Princes Highway, Port Fairy (as the relevant activity area) on 15 May 2014.  It does not have an expiry date and therefore, endures.  
7	The subject land is fully encompassed within this activity area but forms only a part of it. 
8	The applicant and Council submitted that the approved CHMP was sufficient to cover the proposed activity on the subject land as depicted in the current application (i.e. five lot subdivision). They relied on relevant case law principles as outlined in decisions including Lake Park Holdings Pty Ltd v East Gippsland SC & Ors (‘Lake Park Holdings’) and Strengers v Moyne SC. 
9	Some respondent objectors took a different view, submitting that further investigation of Aboriginal cultural heritage values should be required, and that previous on-site sampling was too limited. 
10	Section 52(1) of the Aboriginal Heritage Act 2006 (Vic) (‘AH Act’) prevents a decision maker, including the Tribunal, from granting a statutory authorisation unless a CHMP is approved for an activity if required.  
11	Section 52(3) prevents a decision maker from granting a statutory  authorisation for the activity if it would be inconsistent with an approved CHMP. 
12	These provisions would apply to the grant of a permit for a five lot subdivision (being a high impact activity under the Regulations) as a potential outcome of this proceeding.    
13	My primary finding is that the approved CHMP covers the relevant activity area and the proposed activity that is the subject of this proceeding (i.e. further subdivision).  I accept submissions for the applicant and Council on this issue.  
14	Key aspects that lead to my finding include: 
-	The approved CHMP covers the entirety of the subject land;
-	There is a continuing nexus between the proposal and the approved activity in the CHMP.  The CHMP provides for the approved activity of subdivision with associated infrastructure, which is the same type of activity now proposed to be expanded across the land.  I note that the trigger for a CHMP in the Regulations is subdivision of three or more lots, which remains the same for the approved and proposed subdivision;  
-	The CHMP involved a desktop, standard and complex assessment of the land, including inspections and borehole testing (including in the location of one of the new lots now proposed); 
-	It identified the overall site as having low archaeological sensitivity, but provides appropriate work methods and contingencies if cultural heritage artefacts are discovered;
-	The subdivision of the subject land (forming part of the broader activity area) would not open up any new parts of the land for which a proper assessment has not been undertaken, or for which there are no relevant recommendations;
-	Clause 5.2 of the CHMP expressly provides for a change in subdivision layout, and the location of services and utilities as well as flood mitigation measures.  It provides:
Changes to the activity 
This CHMP allows for some changes to the configuration of the proposed residential subdivision – i.e. to the number, size and shape of the proposed lots and to the associated utilities, services and required flood mitigation measures. Given that the potential for large, dense or in situ Aboriginal archaeological sites existing in the activity area has been assessed as being low, it would not appear that such changes would pose any additional threat to Aboriginal cultural heritage in the area.
-	Therefore, the CHMP contemplates the possibility and, hence, acceptability of works for subdivision across the entirety of the site (activity area).  In the absence of the specific statement in Clause 5.2 addressing the types of changes envisaged and the rationale for the low capacity for harm, the position may have been less clear.  
15	Even though the CHMP provides a description of the proposed activity indicating that part of the land was (at least at that stage) intended to remain undisturbed, read fairly and objectively as a whole, I consider that the approved CHMP contemplates that there could be significant ground disturbance undertaken to the entire activity area in connection with subdivision activities without further investigation. 
16	My approach above is consistent with case law considerations referred to in Lake Park Holdings which suggest a purposive but sufficiently flexible interpretation of a CHMP, recognising a dynamic planning and statutory authorisation process. 
17	In these circumstances, I find that no further investigation is required for the proposed further subdivision to satisfy objectives of the Act, including to protect Aboriginal cultural heritage in Victoria. 
18	It is not appropriate for this Tribunal to second guess the extent of testing and analysis undertaken as part of the approved CHMP. It involved a complex assessment prepared by experts in this field, was subject to consultation with relevant First Nations representatives and a formal approval process that demonstrates its acceptability for the purposes of the Act and Regulations. 
19	Likewise, while objectors may wish for a broader area to be identified as land of cultural heritage significance, the relevant assessment tool for the Tribunal is the mapping provided by the Department of Transport and Planning, which has only identified part of the land having this significance by virtue of its proximity to a registered waterway.  
Significant ground disturbance
20	I turn to the alternative submission made by the applicant in the event I may not have been satisfied the existing CHMP was adequate.  
21	It submitted that the whole of the activity area proposed to be subdivided in the current proceeding had been the subject of significant ground disturbance, such that it was no longer of cultural heritage significance under the Act or Regulations. 
22	‘Significant ground disturbance’ is defined in Regulation 5 as meaning:
disturbance of—  
(a)	the topsoil or surface rock layer of the ground; or 
(b)	a waterway— 
by machinery in the course of grading, excavating, digging, dredging or deep ripping, but does not include ploughing other than deep ripping.
23	Council accepted that a substantial proportion of the subject land for the purpose of the current application had been the subject of significant ground disturbance as indicated by approved civil drawings for subdivision infrastructure and supported by photographs tendered to the Tribunal.  However, it identified one limited part of the subject land where it considered that evidence was inconclusive as to whether significant ground disturbance had occurred. 
24	Objectors including Ms Harradine considered this was insufficient to arrive at a positive conclusion that the whole of the subject land had been significantly disturbed as required. 
25	I agree.  The information provided by the applicant, in the absence of further borehole testing and evidence, leaves residual questions in respect of the extent of works on part of this land. 
26	This is notwithstanding a broad statutory declaration tendered from Adam Hudson, the site supervisor for the subdivision works, indicating that substantive earthworks using machinery had been undertaken to the entirety of the subject land by way of grading and shaping with machinery.  
27	Mr Hudson was not called to give further evidence or for cross examination on this occasion.  However, the applicant explained that it would seek an opportunity for a preliminary hearing to call this evidence if required to ‘make good’ this position.  
28	While this may be an option available to an applicant, I do not consider that this is necessary in the current proceeding given my principal finding that the approved CHMP covers the entirety of the land and this proposal for further subdivision.  This is sufficient to meet legislative requirements for the grant of the permit sought. 
Flooding and drainage
29	Many statements of grounds of the respondent objectors relate to concerns about flooding and drainage in connection with the proposed residential subdivision. This appears to be in connection with their understanding that the residual land from the original subdivision would be used as a reserve or for flood storage.  
Exemptions in Floodway Overlay and Land Subject to Inundation Overlay
30	Council and the applicant submitted that the respondents should be prevented from relying on these grounds because of the exemptions in Clauses 44.03-5 and 44.04-6 of the planning scheme which provide: 
An application under this overlay is exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act.
31	Council and the applicant submitted I should follow the reasoning of the Tribunal in Clifftop at Hepburn Pty Ltd v Hepburn SC (‘Clifftop’).  
32	In summary, the Tribunal in that case concluded that objectors could not be heard or call or question evidence in respect of any bushfire hazard related matters given an exemption in very similar terms within the Bushfire Management Overlay.  It found that the overlay ‘covered the field’ with respect to bushfire hazard assessment and management.  
33	I accept submissions that the reasoning in Clifftop applies equally to the provisions of the Floodway Overlay and Land Subject to Inundation Overlay, under which permissions are required for the subdivision. 
34	The planning scheme has evidenced a clear intention that there are no rights to would-be objectors under the provisions of these overlays.  
35	For this reason, I will make an order preventing respondents from making submissions, calling evidence or cross examining witnesses in respect of these specific permissions.  
36	As I mentioned at the practice day hearing, the Tribunal will still need to consider the appropriateness of these permissions as sought, having regard to submissions and evidence before it, and using the benefit of its own expertise.
Potential legitimate basis for respondents raising flooding and drainage issues
37	An important distinguishing feature of this proceeding is that permission is also sought under Clause 52.02 to vary a registered restriction on title to the land (pertaining to building envelopes, amongst other things).  
38	The objector respondents are legitimate parties to the review of this permission, noting also that Council’s grounds of refusal relate to this.  
39	In these circumstances, the Tribunal will need to consider whether a permit can be granted as sought, or whether section 60(2) of the PE Act would act as a prohibition given the relatively recent age of the restriction on the plan of subdivision. 
40	That section provides: 
The responsible authority must not grant a permit which allows the removal or variation of a restriction (within the meaning of the Subdivision Act 1988) unless it is satisfied that the owner of any land benefited by the restriction (other than an owner who, before or after the making of the application for the permit but not more than three months before its making, has consented in writing to the grant of the permit) will be unlikely to suffer—  
(a)	financial loss; or  
(b)	loss of amenity; or  
(c)	loss arising from change to the character of the neighbourhood; or  
(d)	any other material detriment— 
as a consequence of the removal or variation of the restriction.
41	Mr Henwood submitted that he wishes to raise concerns about flood risk and drainage as aspects that may result in a loss of his amenity, financial loss or other material detriment if the restriction was varied, relative to this legislative test.  
42	This is a different context to objectors being able to raise concerns about the purpose or decision guidelines of the Floodway or Land Subject to Inundation Overlays; which is not permissible.  
43	It relates to a separate permission sought under the planning scheme for the subdivision, which specifically creates notice and review rights to beneficiaries of the restriction.  
44	Therefore, so long as objectors can demonstrate a sufficient connection between the issues of flood risk and drainage and the matters to be considered in section 60(2) of the PE Act, I find it is permissible to raise these issues in submissions or to call evidence about them in the proceeding.  These issues may also have relevance to the purpose/s of the restriction, if it can be demonstrated.  
45	In these particular circumstances, it will be a matter for the Tribunal to determine whether these matters may result in a relevant loss of amenity or create financial loss in applying section 60(2).  
Hearing arrangements
46	Some respondents suggested that there may not be a need for the Tribunal to hear submissions about the appropriateness of varying the restriction given Council’s refusal.  The essence of an application for review is that the  Tribunal needs to form an independent view about the appropriateness of the grant of each permission sought.  
47	Parties with an interest in these matters have a right to present relevant information and submissions to the Tribunal. 
48	In the current matter, the appropriateness of the variation to the covenant, and the determination of whether section 60(2) of the PE Act would prevent the grant of a permit are ‘live issues’ that will require a suitable amount of time being allocated for submissions and/or evidence.  
49	I have extended the hearing to two days as requested by the applicant to allow sufficient time for all matters to be considered in light of the updated estimates provided by parties. 

50	As mentioned at this hearing, the Members at the main hearing will determine whether a physical site inspection is required, having regard to all documentation provided in the proceeding.   

Dalia Cook
Member

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